R v Kashton[2005] QCA 70

SUPREME COURT OF QUEENSLAND

FRYBERG J:  On 3 November last year upon an indictment charging 17 offences, the applicant was sentenced to 10 years imprisonment for trafficking in heroin and methylamphetamine and to imprisonment for two years for 16 other drug related offences.  At the same time, he was sentenced to imprisonment for one year on each of five summary charges.  To all of these charges he had pleaded guilty.  All imprisonment was concurrent, 712 days pre-sentence custody were declared and a declaration of conviction of a serious violent offence was made.

He now seeks leave to appeal against the 10 year sentence and (implicitly) the declaration of a conviction of a serious violent offence on the ground that the sentence was manifestly excessive.

The trafficking was alleged to have taken place between 1 July 2000 and 28 November 2002, a period of almost two and a half years.  The applicant was, in fact, first arrested and charged on 19 September 2001 after a short police car chase.  He was released on bail almost immediately but was reoffending by mid-2002.  His committal for the first group of offences was conducted on 15 November 2002.  He was again arrested on 27 November 2002.  Thereafter, unsurprisingly, he remained in custody.

When arrested on 19 September 2001 the applicant was in possession of drugs, including methylamphetamine of almost 80 per cent purity.  He had been under observation for some time and police had observed five people get in and out of his car.  A sixth person was in the car with him at the time the chase began.  There was $150 in the ashtray, inferentially related to the transaction with the person in the car and $2,510 in the applicant's wallet.  Police searched his home and found more drugs, money the proceeds of sale of drugs, a handgun with 47 rounds of ammunition, 10 gold coins and four gold ingots.

The gun, his counsel told the sentencing judge, was for his own protection in the event that somebody in the drug trade, either purchaser or vendor, were to get aggressive or threaten him.

The total amount of heroin found was 10.334 grams of pure heroin in 79.531 grams of powder and of methylamphetamine, 38.031 grams of pure methylamphetamine in 48.244 grams of powder.  There was also about 38 grams of cannabis.

A financial analysis of the applicant's cash flow from unknown sources over the period of the trafficking showed that he made an apparent profit of $156,000.

Evidence of his continued trafficking whilst on bail came from persons who had purchased drugs from him.  His rearrest came after another police car chase for a couple of kilometres.  After he was taken into custody his mobile phone kept ringing with people wishing to place orders.  A search of his house disclosed a quantity of cannabis and the existence of security cameras feeding to a television monitor in the lounge room.

The applicant was aged 39 when sentenced and 35 to 37 when he offended.  He had a substantial criminal history dating back to 1983, including cannabis offences in 1987, 1993 and 1997.  He was a cannabis user but not a user of heroin or methylamphetamine.

Apart from his plea of guilty, there was little evidence of any willingness to co-operate in the administration of justice.  He attempted to evade arrest, he refused to be interviewed by police, he continued his offending conduct while on bail, he required two committal proceedings to be conducted (and they were not hand-up committals) and he provided no assistance regarding the sources of his drugs.

It was submitted on his behalf that the part of the cross-examination at committal which was relevant to him was,

"conducted as efficiently as possible exploring legitimate forensic issues which could properly be said to have contributed to the resolution of the matter."

I would reject that submission.  Testing the strength of the Crown case by cross-examination at committal proceedings in order to make a decision about whether to try to negotiate a plea bargain does not, in my judgment, evidence a willingness to co-operate in the administration of justice.

The applicant knew of his guilt at all material times.  Co-operation in the administration of justice would have been evidenced by his notifying the Director of Public Prosecutions openly and unconditionally (or upon conditions if it subsequently transpires that those conditions are met by the Director or otherwise realised) of his intention to plead guilty.  Such a notification does not require the Director to have appointed a person to run the file.  It requires only the despatch of a letter.  If the letter is sent before a committal is held it constitutes an early plea of guilty.  So, in many circumstances, does a plea of guilty announced at a hand-up committal.  What happened in the present case does not.

That lack of co-operation in the administration of justice is also evident in the course which the proceedings took in this Court.  The applicant having been committed for trial, the indictment was presented on 6th February 2004.  On that day it was listed for further mention the following month.  No indication of an intention to plead guilty was given.

It was mentioned a further four times before May that year.  The position as regards a plea remained unchanged.  On 18 May 2004 the case was listed for a three day hearing under section 590AA of the Code.  The purpose of that hearing was to enable the defence to cross-examine a number of witnesses who had not testified at the committal hearing.  Before that hearing took place, there were negotiations between the Crown and the defence which resulted in an agreement that the applicant would plead guilty to all 17 offences charged in the indictment.

On 6 August the matter was listed for sentence.  By then five months had elapsed since the presentation of the indictment.

None of this means that the benefit which the applicant was entitled to receive for his decision to plead guilty should be trivialised.  Had the matter proceeded as a trial, it is likely that it would have involved a considerable number of witnesses, taken a considerable time and involved considerable cost.  By his co-operation the applicant has avoided these consequences.  His decision to plead, although not communicated at an early stage, was not a last minute decision.  He is entitled to a discount but in the circumstances its impact should not be exaggerated.

It was also submitted on his behalf that he had expressed remorse for his conduct.  That was apparently a reference to a letter which he wrote for the sentencing judge a month before the sentence hearing.  Such letters, uncorroborated by other evidence, are of little weight.  That is particularly so when the author chooses not to verify the contents of the letter on oath and expose himself to cross-examination about it.  The applicant was under no obligation to enter the witness box on the sentence hearing but he cannot complain if his belated expressions of remorse, couched in language which might or might not have been his own, achieved less than he might have hoped.

The principle submission made on the applicant's behalf was that either the sentencing judge started the process of working out the sentence with a range which was excessive or she did not make adequate allowance for mitigating factors, particularly the plea of guilty or both. 

It was submitted that the starting point should have been a sentence of 10 years, that is this would be the sentence appropriate after a trial.  For that proposition counsel relied on a number of cases. 

R v Tilley (CA 244 of 1999) was an Attorney-General's appeal against a sentence of 9 years imprisonment imposed for trafficking in heroin and methylamphetamines.  The sentencing judge recorded that both the prosecutor and defence counsel offered 8 to 12 years as the range for the offence of trafficking on the basis that Tilley was at the top end of that range, that is 10 to 12 years.

On appeal, it was submitted on behalf of the Attorney-General that the judge misunderstood the prosecutor's submission and that the prosecutor proposed a sentence of the order of 11 years after allowance was made for the plea of guilty.  The Court proceeded on the basis that the prosecutor had failed clearly to make that submission and that the trial judge had adopted a course reasonably open to her by reducing the head sentence by two years.  The Court allowed the appeal to the extent of making a declaration of a serious violent offence.  I find the case of little help in establishing an appropriate starting point in the present case.

R v Le [2000] QCA 392 was drawn to the attention of the judge below.  In that case the majority of the Court, Thomas JA (with whom Pincus JA agreed, saying that the question was one on which his Honour's mind had fluctuated) rejected an appeal by the Attorney-General against a sentence of seven years imprisonment, with a recommendation for consideration for parole after two and a-half years.  In that case it was common ground between the parties that the starting point was about 10 years.  Davies JA dissenting, thought that within the appropriate range, although towards its lower end.  Doubtless in view of the common ground, the majority did not give detailed consideration to the starting point but assumed that in the absence of mitigating circumstances, a sentence in the range of 10-12 years would have been appropriate.  Again, I do not find it helpful in establishing the appropriate starting range in the present case.

In R v Geary [2003] 1 Qd R 64, the applicant was convicted after a trial of one count of trafficking in methylamphetamine, cannabis and THC and a second count of production of methylamphetamine in excess of two grams.  The sentence of the primary judge on the trafficking count was set aside for reasons not presently material and that on the production count was set aside because the circumstance of aggravation had not been properly established.  Resentencing on the trafficking count, the Court imposed a sentence of 10 years imprisonment. 

The case has a number of similarities to the present one and is, I think, relevant to our decision.  However, there are some important distinguishing factors.  A most important one is that Geary was trafficking only in methylamphetamine.  Moreover, at the relevant time, that drug was listed in schedule 2 to the Drugs Misuse Regulation, not in schedule 1, with the result that the maximum imprisonment for the offence was 20 years not 25 years.  In the present case, a considerable part of the trafficking - from September 2001 until November 2002 - took place after methylamphetamine was placed on schedule 1, while heroin was included in that schedule at all material times.  Geary's age is not referred to in the report.

R v Christensen [2002] QCA 113 is another relevant decision.  After pleading guilty, Kim Christensen was sentenced for a series of offences, the most significant of which was trafficking in methylamphetamine and cannabis over a four year period.  In some respects the case was more serious than the present.  The trafficking continued for a longer period and involved a profit of some half million dollars.  Christensen, who was aged 40, was twice given bail and reoffended.  On the other hand, he had only a minor criminal history of little relevance to the charges and the drugs involved were cannabis and methylamphetamine at a time when the latter was still a schedule 2 drug.  That was a factor which the Court explicitly took into account.  Williams JA, with whom the President and Muir J agreed, said,

"It seems to me that given the magnitude of the operation, the starting point could well have been a sentence as high as 13 or 14 years if one took into the calculation of the head sentence the fact that the trafficking had been carried on after the applicant had been arrested and released on bail on two occasions."

In R v Burrows [2004] QCA 306, the Court dismissed an application for leave to appeal by a 38 year old man sentenced to nine years imprisonment with a declaration that it was a serious violent offence, for trafficking in methylamphetamine from September 1998 when he was 32, until September 2001.  A number of other drug related offences were also present.  The applicant had a history of drug offending and committed some of the offences while undergoing an intensive correction order.  He twice continued the trafficking whilst on bail.  The scale of operation was much larger than in the present case, involving 10 employees and a substantial production operation.  The prosecution case was a strong one and the plea of guilty was late.  Dutney J, with whom McPherson and Jerrard JJA agreed, held that the starting point of 11 years imprisonment adopted by the sentencing judge was within range but without saying what the range was.  At all material times methylamphetamine was a schedule 2 drug.

R v York [2004] QCA 361 was an exceptional case.  There, there had been an unusual level of co-operation with the authorities.  The period of trafficking involved was shorter than that in the present case and the accused had no previous drug history.  Most importantly, however, the starting point was determined not by the Court but by a concession from counsel appearing for the Crown in the Court of Appeal.  It was conceded that the starting point for a head sentence was 10 years.  The case, therefore, is not, in my judgment, authoritative determination by the Court of what the starting range is in a case determined after a trial.

The common factor which distinguishes the present case from Geary, Christensen and Burrows, is that the present applicant was trafficking in heroin and for part of the time methylamphetamine as a schedule 1 drug.  Parliament has set a maximum penalty in such cases which is 25 per cent higher than that applicable to trafficking in schedule 2 drugs.  That must be reflected in the sentences which Courts impose.  That was recognised by McPherson JA, with whom Jerrard JA and Jones J agreed, in R v Raciti [2004] QCA 359.

His Honour said:

"The question of the appropriate sentence for large scale trafficking in schedule 1 drugs has come before this Court on a number of occasions in recent times, of which R v Bradforth [2003] QCA 183 is to my mind the most relevant decision.  There the applicant was sentenced at first instance to 12 years imprisonment with a declaration under section 161(B) for one count of trafficking, mainly in speed, at a time when it was still a schedule 2 drug, but also in cocaine and in speed after it became a schedule 1 drug and in ecstasy.  He was also sentenced for one count of possession of various articles used in connection with the trafficking and one count of possession of a variety of drugs which included all those already mentioned.”

I will omit a couple of sentences at that point because it is not relevant.  Continuing the quotation,

"In reducing the sentence on count 1 from 12 to 10 years, Muir J, with whom Williams and Jerrard JJA agreed, said that a purpose of doing so was to give appropriate recognition to the early plea of guilty and to the fact that the applicant had been on remand for nine months before being sentenced."

After referring to the major determinants of penalty described by Muir J in Bradforth, his Honour continued,

"In my view, the effect of the decision in Bradforth is to suggest a sentencing range of between 10 and 12 years in trafficking cases of its kind." 

It is clear that he was referring to cases where there is a plea of guilty.  Obviously, in the absence of such a plea, the top of the range would be substantially higher.

In my judgment, that is sufficient to dispose of all of the applicant's submissions relating to comparable cases.  The result reached by the judge in the present case was to award the bottom of the range for cases involving pleas of guilty to trafficking in schedule 1 drugs on a substantial scale.  The sentence of 10 years imprisonment was not manifestly excessive.

The application should be dismissed.

WILLIAMS JA:  The relevant facts and circumstances have been stated by Fryberg J in his reasons. 

I would add that the scale of the appellant's trafficking can be gauged from a consideration of what was located by police when his home was raided on 19 September 2001.  Amongst the drug located on that date and the associated drug trafficking paraphernalia, the following was located:

a)48.244 grams of powder which contained 38.031 grams of methylamphetamine contained in 108 individual plastic bags.

b)79.531 grams of powder which contained 10.334 grams of heroin contained in 33 pieces of foil and 13 plastic bags.

The fact that the drug was so pre-packaged indicates to my mind that this was trafficking on a major scale.  I am not persuaded that in all the circumstances the sentence imposed was manifestly excessive.  That conclusion is supported by a consideration of the comparable decisions referred to by Fryberg J.  The application should be dismissed.

HOLMES J:  I agree with the order proposed.  My reasons can be shortly put. 

While it is useful and appropriate to advert to what can be identified as a sentencing range, the sentencing process, obviously enough, is not really one of applying arithmetic within absolute limits.  The essential question here is whether the sentence was manifestly excessive.  Looking at the circumstances of the offending and the mitigating circumstances, with what assistance can be obtained from roughly similar cases, I am not persuaded that it was.

WILLIAMS JA:  The order of the Court is the application is dismissed.