R v Latter[2001] QCA 549

COURT OF APPEAL

McPHERSON JA

DAVIES JA

THOMAS JA

CA No 213 of 2001

THE QUEEN

v.

TRACIE LEE-ANNE LATTER Applicant

BRISBANE

DATE 29/11/2001

JUDGMENT

THOMAS JA:  The applicant was convicted of four drug offences committed over a six month period commencing November 1999. 

The activity the subject of the offences was observed by police during three separate visits to the applicant's premises over that period.  In the result the applicant pleaded guilty to four charges, one of possession of paramethoxyamphetamine, known as PMA, in excess of the prescribed quantity, one of possession of methylamphetamine in excess of the prescribed quantity and two of possession of methylamphetamine.

On the aggravated counts she was sentenced to three years and nine months, and on the other counts to lesser terms, with a recommendation for eligibility for parole after 15 months in all matters.  Pre-sentence custody of 79 days was declared to be time already served.

The applicant, who is now 39 years old, has a criminal history between 1982 and 1989 involving stealing and forgery and more significantly, four charges of possession or production of cannabis.  None of those offences resulted in prison sentences.  No offences were committed during the 10 years immediately preceding the present matters.

When police executed a search warrant at the applicant's home on 20 November 1999, she was found to be in possession of 48 tablets of PMA weighing 5.842 grams (3.492 grams pure), five containers holding a total of 50.797 grams of methylamphetamine (1.732 grams pure) in both tablets and powdered form, $430 cash and digital scales.  She admitted ownership of the drugs, but denied dealing.  She was arrested and granted bail.  Eleven days later, police executed a search warrant again and interrupted the applicant measuring and weighing drugs in the bedroom.  They located 10.393 grams of methylamphetamine (.72 grams pure) in four separate containers, two sets of digital scales, two mobile telephones and another group of empty clipseal bags.She told police that the drugs were hers and that she had a drug habit.  She was again arrested and granted bail. 

On 14 April 2000, she was committed for sentence on charges resulting from the above conduct.  However on 13 May 2000 she was found in possession of 20 clipseal bags containing a total of 67.709 grams of methylamphetamine (5.856 grams pure).  She was again arrested and some time later was granted Supreme Court bail.  She failed to appear for sentence on 18 May and was eventually dealt with by Justice Fryberg on 13 August 2001.

The most significant fact in the present matter is that the applicant's possession of the drugs was for commercial purposes.  Having referred to the evidence, including the amount, the impedimenta, and the repetition of the applicant's activity, his Honour stated that it was clear beyond argument that the applicant was involved in commercial activity with a drug.  The applicant's counsel declined to call evidence when his Honour intimated that he would not accept the proposition that the drugs were substantially for the applicant's own use unless the assertion was supported by evidence.  Counsel took this course after consultation with the applicant.

It is true however that the applicant had a significant drug addiction.  This may serve to explain, but not to excuse, her motive for becoming involved in such activity, following as it did a period in her life when she had been law abiding, was gainfully occupied in the hospitality industry and having commenced to design clothes and gifts as a hobby had started her own small business in that activity.

The applicant has in the past suffered from cervical cancer which would appear to have been successfully treated, or at least to be in remission.  She has also suffered from time to time from depression and whilst in prison she was diagnosed with a mild form of epilepsy which is controlled by medication.

The applicant asserted, both below and here, that while she was on bail before sentence, she supplied regular urine samples for analysis and that she was free from drug use during that period.  The learned sentencing Judge however was of the view that she had not been required to undergo any testing for drugs during the course of her bail and does not appear to have been prepared to accept that particular assertion.  For my part, I do not think that this is of any great moment, and would be prepared to assume that whilst on bail she was able to and did control her drug habit, whether or not testing occurred as stated.

The only other point made in the outline submitted to this Court by the applicant is the assertion that her barrister was briefed 10 minutes before hearing, was unable to answer some of the Judge's questions, and failed to hand up a written submission from the applicant.  Having studied the transcript, I consider that the applicant was competently represented, and that there is no basis for thinking that the proceedings may have miscarried on the score of any incompetence on counsel's part.

In my view, the sheer persistence, not to mention effrontery of the applicant notwithstanding the bringing of charges and the grants of bail substantially aggravates the matter.  The offences occurred over a six month period, and two of them occurred whilst on bail.  Significant quantities were involved, namely 128.899 grams of methylamphetamine (8.308 grams pure), and 5.842 grams of PMA (3.492 grams pure).

The matters of assistance to the applicant are his Honour's perception of possibility of rehabilitation and the potential that she has demonstrated capacity to live a useful life if she can overcome her drug addiction.  The medical problems are to be noted, but these are not of the kind that should produce any substantial impact on the sentence.  Her early pleas stand in her favour.

The applicant presented here as an articulate woman who could make something of her life.  The learned trial Judge thought so too.  She referred to two single Judge decisions by Supreme Court Judges in matters of Kickbush and Ludwig, where lower sentences were imposed upon offenders who had been found in possession of amounts that are comparable, at least, to those found here.  Each of those offenders, however, seems to have been charged as the result of a single police raid and those cases lacked the persistence of offending in the present matter, which is a matter of some relevance.

In my view, greater assistance is obtained in comparable matters that have been decided in this Court.  The present sentences seem to me to be consistent with those which were upheld in McLaughlin, CA365 of 1997, 19 November 1997, and Simpson, CA140 of 1995, 11 July 1995.  It is the fact that in recent years both the Courts and the community have become increasingly aware of the destructive effects of methylamphetamine use and a more serious view is taken in sentencing in respect of such matters, especially where commerciality is found to exist.

For these reasons, I consider that the application, which was well argued by the applicant on her own behalf, must be refused.

McPHERSON JA:  I agree.

DAVIES JA:  I agree.

McPHERSON JA:  The order is that the application for leave to appeal against sentence is refused.