SUPREME COURT OF QUEENSLAND

[1]  JERRARD JA: In this matter I have read Chesterman J’s reasons for judgment, and agree with them and with the order His Honour proposes.  I add the following further reasons which adopt the description of the relevant facts by Chesterman J.

[2] The essence of the argument on appeal was that the learned sentencing judge, Mr Murray’s own counsel, and counsel for the Crown, each acted under the error in common of equating Mr Murray’s criminality established by his pleas, with the criminality that would have been established had he pleaded guilty to trafficking in ecstasy on or between the dates of his offences of supply.  His senior counsel, Mr T Martin SC, contends that as a result of that error Mr Murray received an excessively high head sentence. 

[3] It appears that Mr Murray’s role in the June 2002 transaction was to introduce Mr D to Mr Warren, and thereby enable Mr D to supply Mr Warren with the drugs (ecstasy, but with traces of amphetamine and methylamphetamine in some of the tablets), for which Mr Raciti had paid $116,000.

[4] That exchange of money and drugs occurred, and when police subsequently intercepted Mr Raciti he was in possession of 9,145 tablets, not just 6,000; the police did not know the source of the other 3,000 tablets, but they were apparently from a different supplier.  The alleged source of the 6,000 tablets was also arrested by police, and found in possession of $113,000.  The missing $3,000 had been paid, $1,000 to each of Mr D, Mr Murray, and Mr Warren, for their services as go-betweens. 

[5] That was the largest transaction in which Mr Murray played a part.  His conduct certainly facilitated the exchange of a very large amount of cash for drugs.  Mr Warren also pleaded to the offence of supplying those drugs on that date and he was sentenced to four years imprisonment, to be suspended after he had served one year, with an operational period of four years in which he was not to commit another offence punishable by imprisonment if he is to avoid being dealt with under s 146 of the Penalties and Sentences Act 1992 (Qld) for the suspended sentence.  He has not applied for leave to appeal. 

[6] Neither Mr Warren nor Mr Murray were arrested in June 2002, although Mr Raciti and the alleged supplier obviously were.  The arrest of the intermediaries was not apparently of pressing importance to the police at the time.  Mr Warren was ultimately arrested on 20 February 2004 and had not involved himself in illicit drug dealing from June 2002 until sentenced (with Mr Murray) on 30 January 2006.  Mr Murray, the applicant, had involved himself further in that trade, by the offences he committed in August 2003. 

[7] In respect of the offence committed on 16 August 2003 Mr Murray agreed with one of those suppliers that he would purchase 600 tablets of ecstasy at a price of $19.50 each, and Mr Murray’s object was to re-sell those for between $22 or $23 each, returning him a gross profit of between $1,500 and $2,100.  However, the truck carrying the drugs to Brisbane was intercepted by police and found to be carrying 2,000 tablets (only 600 were for Mr Murray) with purity of between 30 to 35 percent - and no drugs were delivered to Mr Murray.  Presumably he pleaded guilty to the charge of supplying ecstasy to another on the basis of the extended definition of “supply” in s 4(1) of the Drugs Misuse Act 1986 (Qld) which provides that “supply” means:

“(a)give, distribute, sell, administer, transport or supply;

(b) offering to do any act specified in paragraph (a);

(c) doing or offering to do any act preparatory to, in furtherance of, or for the purpose of, any act specified in paragraph (a).”

[8] Mr Murray agreed to take and pay for 600 ecstasy pills supplied to him, and his plea must mean that he did not challenge the proposition that by offering to pay for drugs he received, he was offering to do an act in furtherance of the supply to him of those drugs.

[9] A similar position prevails with respect to the third count of unlawfully supplying ecstasy to which he pleaded guilty, committed on 28 August 2003; on that occasion he had once again agreed to receive ecstasy tablets from the same source, and once again the police intercepted the vehicle carrying the drugs.  Those particular ones were found to be of a very low percentage purity, of between 1 and 1.2 per cent of ecstasy.

[10]  In between Mr Murray had actually received a delivery of what was supplied to him as ecstasy, on 21 August 2003, and he pleaded guilty to the unlawful possession of that drug on that date.  That supply to him was of 600 tablets purchased at a cost of $20 each, and the Crown prosecutor told the learned sentencing judge, without challenge or correction, that Mr Murray on-sold those at $22 and $23 each.  His gross profit was accordingly between $1,200 and $1,800, on an outlay of $12,000.  He was not arrested when he received those, because, the sentencing judge was told, the police were still investigating. 

[11]  Mr Warren did thereafter abandon his involvement in the drug trade, perhaps understandably because of the continuing police interception of potential supply, and was not responsible for the lengthy delay between his arrest in February 2004 and his appearance for sentence in January 2006.  By the latter date he had three children aged 6, 3, and 2.  He had been working as a subcontractor in the concreting field prior to sentence.  He had been involved in the drug trade when his self-employment as a concreter with a concrete truck collapsed following a lull in business activities on the Sunshine Coast area where he lived, and his subsequent bankruptcy.  He had one minor conviction for the possession of drugs in August 2000. 

[12]  Other co-offenders involved with Mr Raciti have been dealt with by this Court, principally a Mr Rizk,[1] who was successful in having reduced on appeal his sentence of eight years imprisonment with a recommendation for parole after three years, for an offence of trafficking in ecstasy between 5 June 2002 and 26 August 2002.  The sentence was reduced to six years, with parole recommended after he had served two years for that offence of trafficking.  Mr Rizk had frequently spoken with Mr Raciti on the telephone about the purchase of ecstasy (on and after 6 June 2002) and was caught in possession of 5,063 ecstasy tablets on 24 August 2002, for which Mr Rizk had paid over $87,500 to man named Mr Van Ryan.  Mr Raciti was sentenced to 11 years imprisonment for his offence of trafficking, and that sentence was not disturbed on appeal.[2]

[13]  When Mr Murray came to be sentenced, the Crown prosecutor informed the learned sentencing judge of the sentence imposed on Mr Raciti, and that that offender had been facing other charges as well, and of the sentence imposed on Mr Rizk.  The prosecutor submitted that Mr Rizk’s activities were of the same order as Mr Murray’s, and likewise Mr Van Ryan’s.  The prosecutor did not suggest that Mr Murray should be sentenced as a trafficker, but did submit that a head sentence in the order of six years was appropriate, accompanied by a recommendation.

[14]  The experienced counsel then appearing for Mr Murray was clearly of a like mind as the Crown prosecutor, because that counsel began his submission with an agreement with the prosecutor’s assessment of the comparison to be made between Mr Murray and Mr Rizk, and also Mr Murray and Mr Van Ryan.  Mr Murray’s counsel readily agreed that a six year head sentence was appropriate for Mr Murray.

[15]  Once again that submission did not suggest that that was because Mr Murray had pleaded to trafficking or should be sentenced as a trafficker; it was a comparison of general criminality.  The learned sentencing judge made no reference to any penalties imposed on other people, but sentenced in accordance with the submissions made by counsel before the judge, namely imposing a six year head term on Mr Warren with a recommendation for eligibility for parole after two years was served, as asked for by Mr Murray’s counsel.

[16]  In those circumstances Mr Murray’s counsel has not established that either the learned judge or the counsel had acted on a wrong basis in regarding a head sentence of six years as appropriate.  The issue on this application is whether Mr Murray’s (overall) unlawful conduct was comparable with that of Mr Rizk, and whether for such behaviour a head sentence of six years imprisonment is manifestly excessive.  It is helpful when trying to answer that question to have regard to sentences imposed on other offenders who have involved themselves in drugs distribution, even if not convicted of either trafficking or supplying, and also, obviously, to consider sentences imposed where offenders have been convicted of unlawfully supplying drugs.

[17]  In R v Patena [1996] QCA 152 that applicant pleaded guilty to eight counts of unlawfully supplying heroin, those offences being committed over a four month period in 1995, and was sentenced to five years imprisonment with a recommendation for parole after 15 months.  That offender was 29, with no prior convictions, and sold just over eight grams of heroin for a little over $10,000.  She was a heroin user, who may have received some benefit from the transactions in the sense that she obtained some heroin for herself, but the information before this Court and the sentencing judge did not show that she actually received any more direct financial benefit than $50 on one occasion.  Heroin was a schedule 1 drug.  This Court dismissed her application for leave to appeal.

[18]  The joint judgment of Davies JA and Pincus JA records (at pp 5-6) that while offenders who plead guilty to trafficking usually receive significantly longer sentences than those who are charged with and plead guilty to supplying, it should not be assumed that a collection of offences of unlawful supply will necessarily attract a penalty well below any trafficking offence. That judgment refers to the difficulty in obtaining comparable sentences (by the Court of Appeal) for the supply of heroin, and to the sentence of four and a half years imposed in R v Kleinschmidt [1995] QCA 541.  That applicant, with a criminal history, was convicted of 10 counts of supplying heroin, and of other offences.  The joint judgment remarks that that sentence seemed a light one.  On a comparison of the criminality of Mr Murray and Ms Patena, Mr Murray supplied only a schedule 2 drug, but he certainly expected a greater financial return than Ms Patena got from supplying a schedule 1 drug.  He was involved in drug dealing for over a year, compared to her four months, and his first transaction involved participating in a very big one.  Ms Patena’s sentence does not show that his was manifestly excessive.

[19]  In R v Lau [2002] QCA 542 that applicant sought leave to appeal against a sentence of three years imprisonment suspended after nine months with an operational period of five years, imposed on pleas of guilty to four counts of production of methylamphetamine, when it was a schedule 2 drug.  Those offences actually consisted of supplying an undercover police officer with Sudafed tablets on four separate occasions.  One was on 17 November 1999, when 7,200 tablets were supplied for $2,770, the second on 18 November 1999 when another 7,200 tablets were supplied for $3,120, and then on 19 November 1999 7,200 tablets were supplied together with half a kilogram of iodine for a cost of $2,920.  That applicant was a chemist who supplied Sudafed knowing that it would be used to produce pseudoephedrine, in turn used to produce methylamphetamine.  That applicant’s final supply occurred on 6 December 1999, when he supplied 2,700 for $1,050.  He pleaded guilty to an offence of producing methylamphetamine because of the expanded definition of “produce” in the Drugs Misuse Act 1986, which defines “produce” to include doing acts for the purpose of manufacturing drugs.  The sentencing court was told that a total of 958.56 grams of methylamphetamine could have been produced from the tablets supplied by that applicant.

[20]  This Court rejected Mr Lau’s application, holding that no additional discount was warranted because there was no prospect of any drug being produced (as the supply was to an undercover police operative).  That offender supplied those tablets in the expectation that they would be used for the production of a very large amount of methylamphetamine; the gross amount of money paid to that offender on each occasion was comparable to the profit Mr Murray received or expected to get, not to Mr Murray’s gross receipts.

[21]  The same general comparison can be made between Mr Murray and the applicant in R v Kunst [2002] QCA 400, where that applicant pleaded guilty to four offences of unlawfully supplying methylamphetamine to another between 28 August 2000 and 20 September 2000.  His offending was over a one month period; on the first three occasions he was paid $1,000 on each for providing an amount of 7 grams of white powder containing methylamphetamine, and on the last occasion he was paid $1,800 for providing 13.6 grams of white powder.  He was sentenced to three years imprisonment, with parole recommended after 12 months, and that sentence was not disturbed.  He had engaged in a repetitive pattern of committing other offences while on bail, and had a significant criminal history, which included convictions for assault occasioning bodily harm, dangerous driving, wilful damage to property, unlawful possession of motor vehicles, and stealing; he had been sentenced on four separate occasions for offences involving drugs.  The sums of money he received were much less than the gross takings Mr Murray expected to receive, although comparable to Mr Murray’s expected gross profit.

[22]  The sentences in Kuntz and Lau were imposed on offenders whose gross receipts were considerably less than what Mr Murray expected to get.  For that reason they do not show that the overall criminality in Mr Murray’s behaviour was the same as theirs, or any less than that of Mr Rizk’s. 

[23]  In R v Reid [2004] QCA 9 this Court reduced a sentence imposed after a trial on a police officer who had supplied methylamphetamine.  His original sentence was six years imprisonment (the drug was still then a schedule 2 drug) and this Court reduced that sentence to four and a half years imprisonment, while remarking that that applicant’s position as a police officer justified the imposition of a sentence higher than those imposed in Kunst and Lau.  The applicant in Reid had committed one offence of supply, when that applicant supplied another police officer (at the request of an undercover officer) with 500 tablets containing a total weight of methylamphetamine of 4.826 grams.  That applicant was paid $12,000.

[24]  The sentence of four and a half years must have reflected both the fact that the offender was a police officer and that he had not demonstrated any co-operation with the administration of justice.  Presumably the head sentence would have been in the order of three years imprisonment had there been such co-operation by a plea of guilty.  But that applicant committed only one offence of supply, which was comparable to Mr Murray’s offence of obtaining possession of 600 tablets bought for about $12,000, and which he purchased for commercial re-sale.  Mr Murray’s three other offences, all of supply, mean that the head sentence imposed on him would necessarily be significantly higher than the three years for which Mr Murray’s counsel argued on this appeal.

[25]  In R v Crocker [1999] QCA 377 this Court dealt with an applicant convicted (on his plea) of seven counts of supplying methylamphetamine, and of other offences; and who was already serving a term of imprisonment when sentenced for the supply offences.  Putting those complications aside, what is relevant on this application are the statements in the joint judgment of the President and Thomas JA that – even taking into account that the supply offences were committed when Mr Crocker was on bail and that Mr Crocker had a criminal history for offences of another kind (prostitution and gaming related offences) - “we find it hard to see how a case of seven supplies (amphetamines) to an undercover agent over two months with sales of a total value of $6,000.00 calls for a sentence beyond four years.  In fact this ‘range’ might more fairly be described as between eighteen months and four years.” page 5 of the joint judgment).  Their Honours added later that for those offences of supply, considered alone, it was difficult to think that a sentence greater than three, or perhaps three and a half years was justified.

[26]  That applicant received in cash less than half of what Mr Murray got in cash for the drugs he obtained possession of in August 2003, and re-sold; and then Mr Murray also committed the offence in June 2002, and the other offences in August 2003.  The observations in Crocker support the sentence imposed here, and I agree the application should be dismissed.

[27]  CHESTERMAN J: On 30 January 2006 the applicant pleaded guilty to four charges brought against him under the Drugs Misuse Ac 1986 (Qld).  The charges arose out of the applicant’s involvement in two separate sets of activities involving drug dealing.  The drug in each instance was MDMA, or ecstasy.  The charges were contained in two indictments which reflected the different personnel involved in the two different sets of transactions.  He was sentenced to six years’ imprisonment on each count with a recommendation that he be eligible for post-prison community-based release after serving two years of the sentence.  The learned judge who passed sentence noted that he had been invited to fix a sentence which reflected the overall criminality of the applicant’s involvement in all the offences and his Honour expressly accepted the invitation.

[28]  Count two on indictment 493 of 2005 charged the applicant, and three others, with supplying MDMA at Mooloolaba on 7 June 2002.  The transaction in question involved the sale of 6,000 ecstasy tablets for a price of $116,000.  The buyer was one Raciti and the seller is best identified as B.  Both buyer and seller took precaution not to deal directly with each other, and never to be together, one in possession of the drugs and the other of the very large amount of cash.  In an endeavour to avoid detection these principals engaged agents who would meet and exchange the cash for the drugs but in such a way, so it was hoped, as to conceal their involvement. 

[29]  A man named Warren was Raciti’s agent.  B’s agent was a man who is yet to come to trial whom I shall call D.  The applicant was to play the role of intermediary and bring Warren and D into communication with each other to allow the sale to proceed.  Warren, D and the applicant were each paid $1,000 for their successful negotiation of the transaction.

[30]  The 6,000 tablets the subject of the sale weighed over two and a half kilograms.  The weight of pure MDMA was 587 grams. 

[31]  The applicant’s involvement in the second criminal enterprise was the subject of counts eight, nine and twelve on indictment 1058 of 2005.  The charges were of supplying MDMA on 16 and 28 August 2003 and possessing MDMA on 21 August 2003. 

[32]  The indictment charged Robert Grady, Shane Lymbery, Leslie Steven Phillips and Travis Tito with various offences against the Drugs Misuse Act.  These four men were said to constitute ‘a small syndicate’ who arranged for the supply of MDMA from New South Wales to various buyers in Queensland.  The applicant was one of their buyers.  On two occasions, the subject of counts eight and twelve, the applicant arranged with a member of the syndicate to buy a quantity of ecstasy tablets.  He seems to have bought, or arranged to buy, tablets in lots of 600.  He negotiated to pay $19.50 for each tablet for the purpose on on-selling at a marked-up price of between $22 and $23 each.  The purchase price was $11,700 and the applicant intended to make a profit of between $1,500 and $2,100 per consignment, by selling the drugs for between $13,200 and $13,800.

[33]  Unknown to the syndicate, and to the applicant, their activities were observed by members of the Australian Crime Commission who intercepted the transportation of the drugs.  The first shipment consisted of more than the 600 tablets the applicant had contracted to buy.  Obviously other people in a position similar to the applicant’s had also placed orders with the syndicate.

[34]  The syndicate was apparently keen to keep the applicant as a customer.  To overcome his disappointment at not receiving the consignment of 600 ecstasy tablets one of the other accused, Phillips, supplied the applicant with 600 tablets at a price of $20 each.  These tablets came from some other source.  The applicant on-sold those tablets at between $22 and $23 each, making a profit of about $1,500.  This activity was the subject of count nine, possessing MDMA.  The possession was obviously for commercial purposes.

[35]  The second consignment of tablets, the subject of count twelve, supplying MDMA on 28 August 2003, met the same fate as the first.  The truck carrying the drugs was intercepted and the drugs were seized.

[36]  The applicant does not appear to have made any further attempts to deal in drugs after the second frustration. He was arrested in February 2004. 

[37]  The prosecutor submitted that “a head sentence in the order of six years is appropriate”.  Experienced counsel who represented the applicant agreed with the submission that “a six year head sentence is appropriate in all the circumstances”.  Mr Farr went on to indicate that his submissions were intended to persuade the sentencing judge to recommend that the applicant be eligible for early release having served two years.  The recommendation was to take account of the applicant’s personal circumstances and his early plea of guilty.  It will be appreciated that the sentencing judge accepted the submission advanced on behalf of the applicant.

[38]  It is now said that the sentence imposed was manifestly excessive.  A number of factors are relied on.

[39]  The first is the applicant’s personal circumstances.  He had an inconsequential criminal history and a good record of employment.  He was married with children whom he supported.  He was a concreter who had commenced his own small business which unhappily failed when building activity on the Sunshine Coast declined.  The applicant apparently turned to drug dealing to provide another source of income.

[40]  The applicant pleaded guilty at an early stage of the charges brought against him.

[41]  Some two and a half years elapsed between the last of the applicant’s drug dealings and his sentence.  There were two years between his arrest and sentence.  The only explanation offered for that delay was that the police and officers of the Australian Crime Commission were investigating the activities, and bringing charges against the principals, of the two drug syndicates with which the applicant had been involved.

[42]  The applicant voluntarily ceased his criminal trading in drugs.  He had no involvement in their purchase, possession or sale after 28 August 2003.  His involvement in the syndicates’ affairs was known to police but the applicant did not know that.  His decision to sever business dealings with the syndicate was not made because he was apprehended by police or believed he would be.

[43]  Lastly it is said that a comparison with other similar cases shows that the applicant has been harshly treated.

[44]  In passing sentence the learned judge noted that “general deterrence is a fundamental consideration in offences of the kind” which the applicant committed.  The sentence of six years was ameliorated by the recommendation for early release “largely in recognition of [the applicant’s] co-operation, including the plea of guilty”.

[45]  Counsel for the applicant referred us to a large number of cases of persons sentenced for possessing, supplying or trafficking in MDMA with a view to showing that the applicant’s sentence was manifestly excessive.  There are, I think, two particular cases which are apposite.  They both involve persons who participated in the transactions of the syndicate with which the applicant was involved in June 2002. 

[46]  The first case is R v Rizk [2004] QCA 382.  Rizk was engaged in the same line of business as Warren.  After the transaction which is the subject of count two in the first indictment against the applicant Raciti was arrested but granted bail.   He immediately returned to drug trafficking and engaged Rizk as his agent to organise the sale of drugs by contacting buyers and making the arrangement for delivery and payment.  Rizk’s involvement lasted from 5 June 2002 until 26 August 2002.  He appears to have been involved in two separate transactions, one involving the purchase of 5,000 ecstasy tablets for a price of $87,500.  Rizk collected the tablets and paid over the money.  He was caught with the drugs in his car.

[47]  Rizk was charged with trafficking in MDMA.  He was sentenced, on appeal, to six years’ imprisonment with a recommendation for release after serving two years.  He was said to have been addicted to ecstasy but that the motivation for his offending was profit. 

[48]  The second case is R v Van Ryan (unreported, Supreme Court of Queensland, Philippides J, 31 August 2005, Indictment No. 421 of 2005).  Van Ryan was the man who paid Rizk the $87,5000 in exchange for the 5,000 tablets.  Rizk and Van Ryan had arranged the sale of the drugs on behalf of their respective principals.  The total weight of the tablets was 1.4 kilograms and the pure weight of MDMA was 445 grams.  Van Ryan was also sentenced to six years’ imprisonment with a recommendation for release after serving two years.  Both had comparable personal circumstances though Van Ryan had had some disadvantages in his youth.  He had been a drug addict who had made determined efforts at rehabilitation.  By way of contrast it may be noted that both Rizk and the applicant had satisfactory personal backgrounds and turned to drug dealing for personal gain.

[49]  The comparison of the applicant’s case with the two I have mentioned might suggest that the applicant’s sentence was unduly severe.  Both Rizk and Van Ryan pleaded guilty to a count of trafficking MDMA rather than supplying it.  They both were intermediaries for their principals, as was the applicant.  In relation to count two their involvement in the sale of the drug was greater than the applicant’s whose precise role was not described.  I infer, from the general description given, that the applicant took the money from Warren and gave it to D, who passed it on to B.  D gave the drugs to the applicant who passed them on to Warren who conveyed them to Raciti.

[50]  The submissions advanced on behalf of the applicant at the hearing focused upon what was said to be an error shared by the prosecutor, counsel for the applicant, and the learned judge.  The submission was that the applicant was dealt with as though he had been convicted of trafficking in MDMA when the charges to which he had pleaded guilty were to the lesser offence of supplying the drug.  This is said to follow from the fact that both Rizk and Van Ryan were convicted of trafficking in MDMA and sentenced accordingly.  To impose the same sentence on the applicant as that given to the others is, it is submitted, to treat him unfairly and to make his sentence manifestly excessive.

[51]  The comparison between the applicant and Rizk and Van Ryan cannot stop with his involvement in the transaction the subject of count two because the applicant’s offending did not stop with that transaction.  The counts involving him in the second indictment show that the applicant was dealing on his own account with a different drug-supplying syndicate.  On two occasions he arranged to buy a consignment of drugs for the purposes of on-sale at a profit.  On a further occasion he took possession of a similar quantity of drugs for the same purpose.  He was buying and selling significant quantities of MDMA, and he was carrying on business as a principal.

[52]  When one has regard to this activity, in addition to the other, the sentence imposed compares favourably with that passed on Rizk and Van Ryan.  The judge was asked to, and did, impose one sentence to reflect the overall criminality of the applicant’s offending.  Taken by itself the sentence imposed on count two may be excessive but when one has regard to the whole of the applicant’s criminal activity it is not.

[53]  Subsequent to the hearing of the application the parties supplied the Court with further written submissions and schedules setting out, for the purposes of comparison, a summary of a large number of sentences for trafficking, supplying and possessing MDMA and amphetamines. 

[54]  As one would expect the schedules reveal a considerable range of sentences imposed for these offences.  The variability in result is accounted for by the differing circumstances of the offences and the offenders.  The number of offences, the duration of the offending, the quantity of drugs possessed or traded, and the financial return are all, obviously, relevant to a determination of the seriousness of the offence and the severity of the punishment.  The variability of the personal circumstances of the offenders is too obvious to require comment.

[55]  This variability makes for difficulty in comparing one case with another.  It must also be borne steadily in mind that for any given offence and offender there is a range of appropriate penalties.  The task of an appellant who challenges the severity of a sentence is to establish that the particular penalty is beyond the acceptable range.  It is not enough to show that another, more lenient, penalty would have been appropriate or even more appropriate.  An applicant must show that his penalty is beyond the appropriate range.

[56]  The other point to make is that it is erroneous to think that an offence of trafficking will always be more serious than an offence of supplying, and that an offence of supplying will always be more serious than one of possessing.  I am talking, of course, of the same drug.  Although there is a gradation in the seriousness of the offences as indicated by the maximum penalty applying to each, the circumstances of an offence of supplying (for example) may be more serious than what was involved by an offender convicted of trafficking.  As a general rule the gradations in seriousness of the offences will be reflected in the gravity of the penalty imposed, but it is not always and inevitably so for all cases.  This point has been made before, in R v Patena [1996] QCA 152 and R v Simpson [1995] QCA 303.

[57]  The applicant’s submission is essentially that the sentence imposed on him was manifestly excessive because it is the same as that given to Rizk and Van Ryan, both of whom, as I have mentioned, were convicted of trafficking in MDMA.  The premise is not universally sound.  The appropriate penalty for a particular offence depends, as I have said, on the circumstances.

[58]  Consideration of the further submissions and an examination of the relevant schedules does not lead me to the conclusion that the sentence of six years, ameliorated by the recommendation for early release, is beyond the appropriate range of penalty for the applicant’s offending.  I have already explained why a bare comparison between the applicant’s involvement in the offence described in count two in the first indictment with the criminal behaviour of Rizk and Van Ryan is inadequate, and therefore misleading, when one is considering whether the sentence imposed on the applicant is manifestly excessive for the whole of his criminality.

[59]  An examination of some of the cases in the schedule establish that the applicant’s sentence was not beyond the range.  In Bellino v R (1999) 105 A Crim R 137 the accused was a 29 year old who carried on the business of trafficking MDMA over a two month period.  On four occasions he supplied a total of 600 ecstasy tablets for a consideration of $22,400.  He pleaded guilty early and had a minor previous conviction.  He was sentenced to six years’ imprisonment with no recommendation for parole.  Although convicted of trafficking his involvement in the supply of MDMA was less than the applicant’s.  Reid ([2004] QCA 9) was a serving police officer who, on one occasion, supplied 500 methylamphetamine tablets for a price of $12,000.  He was sentenced to four and a half years’ imprisonment.  The penalty was no doubt increased because Reid was a police officer but, making allowance for that, it would seem that three to three and a half years was thought appropriate for one count of supplying the drug by someone not a police officer.  Dean ([1999] QCA 378) was a 34 year old who pleaded guilty and was sentenced to five years’ imprisonment with a recommendation for parole after 18 months for possessing 200 grams of methylamphetamine which she was to carry to Perth.  Her fee was $3,000.  Dean suffered internal injuries in the attempt to convey the drugs.  But for that she would have been sentenced to six years imprisonment.  So six years was thought to be appropriate for one count of possessing drugs as a courier.  In Gould (unreported, Supreme Court of Queensland, Douglas J, 29 March 2005, Indictment No. 853 of 2004) a 25 year old with an insignificant criminal history who pleaded guilty was sentenced to four years imprisonment to be suspended after 10 months for one count of supplying MDMA.  The amount was very substantial:  10,000 tablets for a return of $100,000; but Gould was not the principal offender.  He found a supplier for the buyer and assisted the supplier by driving him to various places where he assembled the tablets and he went to the place where the exchange, drugs for cash, was to occur.  Gould’s reward was to be $200.

[60]  It is not right to say that the learned judge mistakenly dealt with the applicant as though he had been convicted of trafficking.  The indictments on which the applicant was arraigned before his Honour were of supplying and possessing MDMA.  Neither counsel suggested that the applicant was to be dealt with as a trafficker and nothing said by his Honour indicated that he was proceeding on that basis.  It is not to be supposed that the learned judge misunderstood the charges for which he was punishing the applicant.

[61]  No submissions were addressed to the sentencing judge that the lapse of two years between arrest and sentence had worked unfairly on the applicant.  The onus of proving unfairness was on the applicant.  None of the factors identified in R v Law;  ex parte Attorney-General [1996] 2 Qd R 63 which can result in a reduction of sentence for delay was shown to be present in this case which seems to have been one in which the complexity of the illegal transactions in which the applicant involved himself led to extensive investigations which were necessarily time consuming.  In such cases the lapse of time is not a factor going in reduction of sentence.  See Jones & Harris v R (1989) 41 A Crim R 1 at 19. 

[62]  It is to the applicant’s credit that he voluntarily abandoned trading in illicit drugs.  His sentence reflects his actual criminal activity and would have been greater had the applicant persisted in drug dealing.  The applicant’s cessation may well be explicable on the basis that he was unable to secure deliveries of MDMA.  His consignments were being intercepted in transitu.

[63]  The factors going to mitigate the seriousness of the applicant’s offences were, in my opinion, adequately recognised in the early recommendation for release.

[64]  I would dismiss the application.

[65]  MULLINS J: I agree that the application should be dismissed.