R v Smith[2005] QCA 398

SUPREME COURT OF QUEENSLAND

MUIR J:  The applicant, a 32 year-old married man with no previous criminal history pleaded guilty to a charge of possessing cannabis in excess of 500 grams and was sentenced in the Supreme Court in Townsville to a wholly suspended four-year term of imprisonment with an operational period of five years.  He was also ordered to serve 80 hours community service.

The applicant contends that the sentence should have been no greater than 18 months fully suspended and is thus manifestly excessive.  The other substantial ground argued by the applicant is that it offends the parity principle having regard to the sentence imposed on the applicant's co-offender, Carter.  The applicant, Carter, and another person named Daley, entered into an arrangement under which Carter was to travel to the Gold Coast and purchase 10 pounds of cannabis for sale in the Mackay area.

The applicant and Daley were each to contribute $10,000 towards the purchase price with the balance being provided by Carter.  The profits were to be shared between the participants in proportion to their respective financial contributions. 

Carter, in possession of the 10 pounds of cannabis purchased pursuant to the arrangement was intercepted by police and arrested.  He pleaded guilty and on 9 June 2005 was sentenced to imprisonment for a term of 18 months suspended after six months with an operational period of two years.  He was a heavy user of cannabis and the sentencing Judge accepted, and I quote, "that there was a component of personal use involved" in his dealing. 

He was born on 13 May 1967 and had a reasonably substantial prior criminal history including a conviction in 1993 for production of a dangerous drug.  The subject offence was committed during the operational period of a sentence of two months imposed for assaults occasioning bodily harm.  Other matters referred to by the sentencing Judge in his sentencing remarks were Carter's “serious injuries” and his good work history.

The sentencing Judge had Carter's sentence in mind when sentencing the applicant.  In the course of his sentencing remarks, after referring to the applicant's early plea of guilty and lack of prior convictions, he referred to Carter's substantial criminal history and his involvement in the enterprise at a greater level.  In light of those matters and a number of comparable sentences referred to by him his Honour observed, I quote:

"It is plain, it seems to me, that the sentence which must be imposed upon you must be less than the sentences which were imposed in those cases, given your previous good history, good character and given that in each case, I think it is correct to say, a prior criminal history was involved."

The learned Crown Prosecutor had previously submitted that parity would indicate that the applicant should be given a lesser sentence than Carter's. 

The applicant relies on each of the cases referred to in his Honour's sentencing remarks and it is useful to summarise the relevant features of them.  In the R v Clarke [2005] QCA 111, the applicant aged 32 was sentenced to 18 months imprisonment wholly suspended for four years for possession of cannabis weighing in excess of 500 grams.  The sentence was on the basis that the cannabis was destined for commercial exploitation.  The applicant had prior drug convictions and leave to appeal was refused.

In the R v Kalaja [2002] QCA 508, the applicant was refused leave to appeal against concurrent sentences of 18 months' imprisonment suspended after six months with an operational period of three years for unlawful possession and supply of cannabis.  The quantity of cannabis involved in one count was 4.51 kilograms.  It had been purchased for $24,500.  Another count involved a prospective sale of 10 pounds of cannabis for $3,300 a pound.  The applicant was 22 years of age with a prior criminal history which did not include any drug related offences.

A sentence imposed on Daniel Kalaja is referred to in the reasons in the R v Kalaja.  He received a wholly suspended term of imprisonment of nine months with an operational period of two years after pleading guilty to possession of 4.5 kilograms of cannabis with a view to resale at a profit.  He had no prior convictions.

Mr Byrne, who appeared for the Crown, referred also in his outline of submissions to the R v Boyle [1995] QCA 396 and the R v Trzcinski [2002] QCA 403.  The applicant in each case was 43 years of age with a substantial criminal history acting as a courier in a cannabis trafficking enterprise involving large sums of money. 

The sentence of three years' imprisonment without a recommendation for parole in Boyle, and the sentence of two and a-half years with a recommendation for parole after 12 months in Trzcinski were each held not to be manifestly excessive.  These cases were concerned with substantially more serious offences than the one under consideration and offer no support for the sentence imposed.

In the course of the oral submissions Mr Byrne candidly conceded that he could point to no case which supported the imposition of a four-year term in the circumstances under consideration here. 

As the learned Crown Prosecutor at first instance acknowledged in his submissions the parity principle required that the applicant receive a lesser sentence than Carter.  Not only did Carter stand to profit more from the enterprise, he had a more active role in it.  His prior criminal history was substantial and he committed the offence during the currency of a suspended term of imprisonment.

The sentencing remarks show that the sentencing Judge was alive to these considerations and intended that the applicant receive a lesser sentence than Carter.  The sentence imposed, however, failed to achieve that objective.

It is argued on behalf of the applicant that the sentence which should have been imposed was nine months' imprisonment wholly suspended and 80 hours community service.  In my view such a sentence would not properly reflect the criminality involved and the type of commercial enterprise in which the applicant was engaged for motives of profit. 

I would allow the application and the appeal and substitute for the sentence imposed a sentence of 12 months wholly suspended with an operational period of 24 months.  I would not disturb the community service order.

THE PRESIDENT:  I agree.

WILLIAMS JA:  I agree.

THE PRESIDENT:  The orders are as proposed by Justice Muir.