R v Burge[2004] QCA 161

SUPREME COURT OF QUEENSLAND

MULLINS J:  On 3 March 2004 the applicant pleaded guilty to one count of trafficking in the dangerous drug methylamphetamine between 8 October 2002 and 23 September 2003 and one count of possessing things for use in connection with the commission of a crime.  This application for leave to appeal against sentence is directed at the sentence of three years imprisonment to be suspended after a period of 18 months for an operational period of three years that was imposed in respect of the trafficking.  A declaration was made in respect of 15 days pre-sentence custody.

The applicant was born on 23 March 1984.  The trafficking was committed when she was between 18 years and 19 years old.  From about the age of 15 or 16 years the applicant became a user of amphetamines.  In November 2000 the applicant commenced a de facto relationship with her then supplier.  The relationship continued until they were both arrested on 23 September 2003.

During the period of their relationship the applicant remained dependent on amphetamines and her de facto continued to be her supplier.  She was using amphetamines on a daily basis.  Her de facto was aged 23 to 24 years during the period of trafficking.  A schedule of agreed facts was placed before the learned sentencing Judge.  Prior to 23 September 2003 the applicant and her de facto were persons of interest to the police.  Search warrants were executed at their residence on five occasions between 9 October 2002 and 15 September 2003.  On each occasion the police located either drugs or large sums of money. 

A listening device was installed in their residence on 15 September 2003.  That allowed the police to obtain evidence to support a case against the applicant and her de facto that they were carrying on the business of dealing in dangerous drugs.  The applicant was heard to arrange drug deals on behalf of her de facto and they were both heard using scales to weigh drugs and using mobile phones to conduct business.  On 17 September 2003 the car in which the applicant and her de fact were passengers and which had been under covert police surveillance was intercepted by police and when police searched the vehicle they located a clip seal bag containing approximately 20 grams of methylamphetamine.  On return to their residence the applicant was heard to be talking to other persons saying “that police got all their gear”.  When police executed a search warrant on their residence on 23 September 2003 the police located messages on the applicant's phone in relation to people wanting to buy drugs.

On 7 October 2003 the applicant provided a statement to police in which she admitted that she would see her de facto weigh and package amphetamines and sell it to people and that “massive” amounts of people would come to their house during the day or night to buy drugs from her de facto.

The applicant described her involvement as taking phone calls and messages for her de facto when people wanted to buy drugs and arranging times for people to come up and buy off him.  She stated that she acted as a secretary for her de facto in relation to him selling drugs over a period of about 11 months.  She stated that her de facto never paid her but would give her drugs and that she was content for that.  The de facto also provided her with food, clothing and accommodation. 

In her statement of 7 October 2003 the applicant stated that the reasons she stayed with her de facto were because she could get drugs from him at any time and that he would support her financially and mentally.  She assisted her de facto with selling the drugs because she loved the effect the drugs gave her.  She felt she was dependent on her de facto because she needed drugs to wake up every morning.

It is clear from the schedule of agreed facts and the applicant's statement that her de facto was the principal conducting a significant trafficking business and that the applicant's role was ancillary or supportive.  In the learned Judge's sentencing remarks he was hesitant to describe the applicant's role on the trafficking as minor and opted for the description that it was “less significant” than her de facto's role.  In view of the period over which the trafficking took place and the consistency of the applicant's involvement, I consider that it is not appropriate to describe the applicant's role as minor.

On sentence the applicant relied on a medico legal report from a social worker employed by Queensland Health who dealt with the applicant when she presented on a number of occasions at Toowoomba Base Hospital.  On 15 June 2002 the applicant presented, accompanied by her father, and was diagnosed as suffering from a drug induced psychosis.  She was observed to have a black eye which she stated was caused by her de facto.  She was admitted in the Acute Mental Health Unit for a four day period and her de facto became very aggressive insisting that she be discharged and threatened staff.

The report noted that the applicant was offered the services of a women's refuge, but refused to accept help even though she acknowledged that her relationship with her de facto involved abuse and violence.  On 26 August 2003 the applicant presented to the emergency department of the hospital stating that she was a junkie and that she had been off speed for a few days and presented with classic detoxification symptoms. She stated that she would be prevented from participating in any treatment program. 

The social worker expressed the opinion, on the basis that he diagnosed that the applicant was a victim of Battered Women’s Syndrome, that she would not have had control over her own situation and was very vulnerable to being influenced by her de facto.  Confirmation of the nature of the abusive and violent relationship that existed between the applicant and her de facto was found in the recordings from the listening device in the residence between 15 and 23 September 2003.

The applicant also obtained a medico legal report for the purpose of sentence from her treating psychiatrist from whom the applicant, through the support of her parents, sought treatment commencing on 14 October 2003.  That report is dated 4 December 2003.  The diagnosis was made of a psychotic disorder likely to have been caused by amphetamine abuse.  Reference is made in that report to the applicant presenting with marked thought disorder and that that had existed on the history for some time.

Subsequently the psychiatrist advised that the applicant had been accepted for the preventing and managing relapse substance abuse program by Toowoomba Health Services, and on 1 March 2004 described the applicant as having been very motivated and compliant with all aspects of rehabilitation. 

Between 10 December 2003 and 25 February 2004 the applicant attended on eight occasions at the Toowoomba Alcohol Tobacco and Other Drugs Service and the result of her urine drug test on 25 February 2004 was negative.  It was this application on the applicant's part to counselling and cooperation with ATODS that resulted in her being accepted for a place in the program run by Toowoomba Health Services.

The only prior criminal history of the applicant were the offences with which she was charged as a result of the search warrants executed on 21 December 2002 and 9 January 2003.  No convictions were recorded and the applicant was fined, in the Magistrates Court on 9 April 2003, the sum of $800 for two counts of failing to properly dispose of needle and syringe, possessing dangerous drugs and obstructing a police officer.

Other matters referred to by the learned sentencing Judge in his remarks were that the applicant and her de facto persisted in their sales despite knowing of the police interest in their activities and described that as a brazen disregard of the law; that despite the factors in the applicant's favour a substantial penalty had to be imposed; that there were good prospects for rehabilitation; and but for the factors particular to the applicant a penalty of five years' imprisonment was appropriate.

Apart from the applicant's efforts at her rehabilitation pre-sentence, these factors favourable to the applicant were her extreme youth, the strong support of her family in her rehabilitation, her addiction and subsequent succumbing to a drug induced psychosis, her early guilty plea and her cooperation with the police in implicating her de facto in the trafficking offence with which he also was charged.

On sentence reference was made to R v. Diem Mac Le, CA No 292 of 1995, 27 October 1995 and Fry, [2000] QCA 89.  Mrs Le was married to her co-accused who had a much greater involvement in trafficking heroin than she did.  Mrs Le was regarded as a minor but willing player.  She participated in eight of the supplies in a three month period of trafficking.  Factors that favoured her were her youth, the absence of previous convictions and that she played a subsidiary role.  She was sentence to four years imprisonment with a recommendation for parole after 18 months.  The relevance of comparison of a sentence for trafficking in heroin was that heroin was a Schedule 1 drug at the time of that sentence, as it still is. Mrs Fry assisted her husband in trafficking methylamphetamine over a four month period.  She was 22 years old without any substantial previous convictions.  She travelled weekly to Blackwater to sell the drug.  She was described as a lesser offender than her husband.  She was sentenced to three years imprisonment.  At the time of her offending trafficking methylamphetamine was a Schedule 2 drug. Fry was a sentence that took place before methylamphetamine became a Schedule 1 drug. 

The applicant has applied for leave to appeal against the sentence on the basis that the sentence imposed was manifestly excessive in that not sufficient weight was given to the applicant's addiction, her dependence on her de facto as a supplier and that she was in a violent and abusive relationship from which it was difficult for her to extricate herself. 

Apart from Le and Fry Mr Devereaux of Counsel for the applicant also relied on R v. Dalton [2002] QCA 108.  Dalton had his sentence for trafficking in methylamphetamine reduced on appeal to three years suspended for 12 months for an operational period of three years.  The trafficking had taken place over a six week period only.  It involved six supplies to covert police operatives.  The applicant was 29 at the time of the offending with a minor criminal history.  He had become involved because of a drug debt to which he owed his co-accused.  Out of the entire operation he had received $60.  The offence was committed when methylamphetamine was a Schedule 2 drug.  I consider that the applicant's involvement was more serious than that of Dalton because of the period of trafficking to which she was a party and that she was providing support to a significant business of trafficking.

Mr Copley of Counsel, on behalf of the Director of Public Prosecutions, also relied on R v. McMahon [2003] QCA 369.  McMahon was 37 to 38 years old during the 11 month period in which he trafficked methylamphetamine.  For most of that period of offending methylamphetamine was a Schedule 2 drug.  He was a user of methylamphetamine at the time of the offending.  He was on probation for other drug offences at the time he committed this offence.  About 12 months prior to being sentenced McMahon ceased using the drugs and was committed to his rehabilitation.  It should  be noted, however, that the business of trafficking was McMahon's.  McMahon was sentenced to five years imprisonment suspended after two years with an operational period of five years.  

Another sentence that has some comparable aspects to the applicant's position is the sentence of the female offender in R v. Zeremes [2003] QCA 255.  Mrs Zeremes was sentenced for trafficking in methylamphetamine over a period of five and a half months.  The sentence was five years imprisonment suspended after 18 months with an operational period of five years.  The offending was committed when methylamphetamine was a Schedule 2 drug.  Mrs Zeremes had previously been fined for possession of dangerous drugs.  The trafficking was committed when she was on bail for the offence of production of methylamphetamine.  She played a lesser role mainly involving herself in communication with customers.  When arrested for the trafficking Mr and Mrs Zeremes were also found in possession of another laboratory in which amphetamines could be made.  Mr and Mrs Zeremes were addicted to methylamphetamine but were carrying on a significant commercial operation.

In view of the applicant's subsidiary role in the trafficking, but having regard to the size of the operation in which she assisted and the period over which it endured before being brought to an end by police and that the offences were committed when methylamphetamine had been made a Schedule 1 drug, I agree with the learned sentencing Judge that a sentence of imprisonment for five years was within range before taking into account the factors in favour of the applicant.

The question which this application raises is whether the imposition of a sentence of three years suspended after 18 months for an operational period of three years has given sufficient weight to the factors in favour of the applicant.  I have already observed on the serious nature of the offence and the level of the applicant's involvement, albeit it as ancillary to her de facto. 

The applicant had, however, made significant efforts at her rehabilitation and her offending, not only was attributable to her addiction, but her disadvantage in being involved in an abusive and a violent relationship.  On the reports that were tendered before the learned sentencing Judge, the faint attempt that the applicant had made at detoxification in August 2003 was stymied by her inability to extricate herself from the relationship with her de facto.  When the extreme youth of the applicant is also taken into account as well as her early guilty plea and not insignificant cooperation in providing a statement which implicated her de facto and to a lesser degree provided some evidence of the involvement of the person whom she identified as the supplier to her de facto, I do not consider that sufficient weight has been given to these mitigating factors in imposing a sentence of three years imprisonment and suspending the sentence after 18 months.

I consider that, when looked at as a whole, the sentence of imprisonment of three years with a suspension after 18 months in the peculiar circumstances that pertained to the applicant during her relationship with the de facto during the period of offending makes the sentence manifestly excessive.  I would, therefore, grant the application for leave to appeal against sentence.  I would vary the sentence by ordering that the sentence be suspended after a period of nine months, but otherwise confirm the sentence that was imposed including the declaration as to pre-sentence custody.

THE PRESIDENT:  I agree.  Because this Court is demonstrating considerable leniency in sentencing the applicant for such serious criminal offending, I wish to add some additional observations to explain my own reasons why this is appropriate here.

As the learned sentencing Judge recognised, sentencing in this case was particularly difficult.  The serious offence of trafficking in the Schedule 1 drug methylamphetamine warrants a significant penalty in accordance with principles of individual and general deterrence.  Methylamphetamine abuse is a serious problem in the community.  In the criminal justice system it is often a root cause of the commission of property offences and offences of violence.  Those convicted of trafficking in this dangerous drug can expect a heavy custodial sentence.  The maximum penalty is 25 years imprisonment.

The applicant played a relatively minor role in the commission of these serious offences.  She was subservient to the principal offender Fairgrieve who was her de facto partner.  She was aged 18 and 19 at the time of the offending.  He was aged 23 and 24. 

The applicant was addicted to methylamphetamine having commenced to use it when she was but 15 years old.  She acted as Fairgrieve's secretary and did not receive direct benefit from the sale of the drugs, although she benefited indirectly through his provision to her of accommodation, food, clothing and drugs.  She told police she was dependant on him because of her need for drugs.

Here the applicant is youthful, without prior convictions, has pleaded guilty, after some initial reluctance has given very extensive cooperation with the authorities in the administration of justice to the point of potentially placing herself at risk, and has promising prospects of rehabilitation.  Even in those circumstances, a sentence of three years imprisonment suspended after 18 months with an operational period of three years could not ordinarily be said to be manifestly excessive.  See, for example, R v Le, CA Nos 291 and 292 of 1995, 27 October 1995 and R v Fry [2000] QCA 89; CA Nos 397 of 1999 and 17 of 2000, 21 March 2000.  It should be noted that those matters concern trafficking in methylamphetamine when it was a Schedule 2 drug with a maximum penalty of 20 years imprisonment.

There are, however, additional factors here which, when combined with the mitigating factors just mentioned, place this case in a unique category. 

A report from psychiatrist Dr Barkla was tendered at sentence.  It recorded that the applicant had a previous relationship with a man who was physically abusive to her.  Following that relationship she became involved with Fairgrieve.  Dr Barkla examined the applicant in October and November 2003 and diagnosed her as suffering from amphetamine induced Psychotic Disorder with delusions with a differential diagnosis of Schizophreniform Disorder and likely to have been suffering from the condition for at least 14 months with symptoms fluctuating in intensity.  Whilst she would have known that her association with Fairgrieve's drug trafficking was wrong it is likely that she was impaired in her capacity to know fully what she was doing and in her ability to fully control her actions because of the extreme thought disorder resulting from her condition.

A further brief report from Dr Barkla of 1 March 2004 indicated that the applicant had been accepted for the Preventing and Managing Relapse (Substance Abuse) Program run by Toowoomba Health Service and that she had been motivated and compliant with all aspects of her rehabilitation.  I should add that at the time of sentence she seems to have made very promising steps towards rehabilitation.  She was attending drug rehabilitation, was drug free at least on 27 February 2004 and her rehabilitation was also documented by references tendered at sentence.

Social Worker Greg Sowry, employed by Queensland Health Triage and Acute Care Team, has had professional contact with the applicant since June 2002 when she presented with her father at the emergency department of the Toowoomba Base Hospital in a confused, disoriented and delusional state.  Mr Sowry's report was also tendered at sentence and records that she was diagnosed with Drug Induced Psychosis and was suffering from a non-accidental injury, a black eye, said to have been caused by her boyfriend, Fairgrieve.  She was admitted as an involuntary patient under the Mental Health Act 2000 (Qld).  Mr Sowry noted that Fairgrieve was very aggressive and insisted that she be discharged immediately.  She was obviously scared of him and refused to talk about the harm he had done to her.  Mr Sowry noted that as is common with those suffering from Battered Women Syndrome the applicant would not accept the recommended clinical pathway of attending a women's refuge and a drug rehabilitation program but instead went back to the same unaltered environment where she was not only at risk but actively prevented from getting the medical assistance she desperately needed.  On more than one occasion she presented in emergency as a victim of domestic violence.  She would not, he opined, have had control over her own situation and was very vulnerable to being influenced by Fairgrieve.

The abusive relationship with Fairgrieve was also obvious from the passages quoted by defence counsel at sentence from the police covert tapes.  These demonstrate that Fairgrieve threatened to bash her and told her that if she did not get up he would start throwing her around.  He threatened that if she kept mumbling and being a "scatter-head freak", he would punch her.  He told her to "stop being a fucking retard".  He threatened to bash her if she kept it up, and when she asked for her rings, he again threatened to bash her.  He called her "a dog cunt" and argued with her.

It is well documented that Battered Women Syndrome results in the victim exhibiting patterns of behaviour of "learnt helplessness" and this is why battered women fail to leave their abusers.  See, for example, the discussion of this issue in R v Osland (1998) 197 CLR 316, Gaudron and Gummow JJ at 335 to 336 and Kirby J at 378, and 'Battered Women Syndrome', Australian Domestic and Family Violence Clearing House Topic Paper, 2003, Zoe Craven.

The applicant's plea of guilty acknowledges her responsibility for the offences but her abusive subservient relationship with the principal offender and her Drug Induced Psychosis explain why she came to be involved in such serious criminal behaviour.  These matters are very relevant mitigating factors.  When considered together with her secondary role in the offending, her promising prospects of rehabilitation, her youth and her cooperation with the administration of justice, this case is in a very special category warranting unusual leniency.  That was not appropriately recognised in the sentence imposed.

Like Justice Mullins I would grant the application for leave to appeal against sentence, allow the appeal and instead of suspending the term of imprisonment after 18 months, order that the sentence be suspended after nine months.

It is self-evident that if the applicant does not live up to her promises of rehabilitation and reoffends, she will be at risk of serving the remainder of that three years imprisonment. 

JERRARD JA:  I agree with the order proposed by the President and by Justice Mullins and add the following remarks.  I also agree with the observation by Justice Mullins that five years was a head sentence well within the range for the applicant's offending behaviour before a sentencing Judge took into account the matters in mitigation of the appropriate sentence.

I am satisfied that in this case there were at least six different sets of such matters which in combination resulted in the sentence of 18 months' actual imprisonment being a manifestly excessive one, even after the reduction of the appropriate head sentence from one of five years to one of three years.

The first of those is that this applicant did provide police with a statement incriminating the alleged principal offender in the trafficking, Mr Fairgrieve, and further identifying one of his suppliers of amphetamine and the fact of that relationship between that identified supplier and Mr Fairgrieve.

It is true, as was observed by Mr Copley for the respondent, that the applicant has not yet provided admissible evidence of conduct by that supplier which would lead to his conviction for such supplying, but it was conceded by Mr Copley that the applicant identifying that supplier and her giving direct evidence or giving a statement capable of being direct evidence against Mr Fairgrieve would place her in at least some danger in her present situation. 

Second, there is the matter that prior to the commencement of the period of trafficking covered by the indictment and during it, she had made some efforts to seek professional help for her own amphetamine addicted condition.  In June and July of 2002, she had presented to the Toowoomba Base Hospital and in July was assessed as being both deluded and psychotic. 

Somewhat a little over a year later, in August 2003, when presenting again and describing herself as being a junkie, a description which was supported by her physical condition, she was advised that the most appropriate treatment for her was an in-patient residential treatment program but stated that she would be prevented from participating in any such treatment program.  It appears that that would be because of her relationship with Mr Fairgrieve.

Thirdly, she was a victim of threats and of actual violence from him in that relationship throughout the relevant period.  It seems that she submitted to a subordinate role with him and she lived with him, he being the supplier to her of amphetamines both before and after she began living with him and trafficking in them herself. It would seem that the supply of those by him to her included the periods when she was deluded and psychotic and when she was in a deplorable physical state. 

Fourthly, there is the fact that the benefit she obtained from her own offending behaviour was simply the supply of those drugs which led to delusions, a psychosis and, as I have described, a pathetic physical condition obvious to him.

Fifthly, there is the fact that she was not quite 20 years old when sentenced to imprisonment and had been 18 and 19 during the period of her addictive offending behaviour.

And, finally, there is the simple fact that she played a far lesser role in that trafficking business than did Mr Fairgrieve.  She pleaded guilty and she did so after demonstrating evidence of some serious attempts by herself at rehabilitation.  For those reasons I agree with the order proposed.

THE PRESIDENT:  The order is as proposed by Justice Mullins.