R v Shailer[2006] QCA 196

SUPREME COURT OF QUEENSLAND

KEANE JA:  On 2 March 2006, the applicant was convicted on his own plea of guilty on one count of unlawfully trafficking in the dangerous drug morphine and one count of unlawful possession of a sum of money obtained from trafficking in a dangerous drug, knowing that it had been so obtained.

He was sentenced in respect of each offence to concurrent sentences of six years imprisonment with a recommendation for post-prison community based release after serving two years of that period.  The sentencing judge declared 423 days spent in custody prior to sentence as time served in relation to the offences.

The applicant seeks leave to appeal against this sentence on the grounds that the term of imprisonment is excessive and that he "will be unable to get parole" and that, in any event, parole will be excessively onerous. 

As to the circumstances of the offences, during the period between 7 September 2000 and 9 April 2002, the applicant, who resided mainly in New South Wales or Victoria, would drive up to Cairns visiting doctors and, using a number of false identities, obtain prescriptions for morphine. 

He then used these prescriptions to obtain morphine and he resold the morphine through a number of Cairns residents.  The applicant's retailers included Lisa Schmidt who ultimately informed on him to the police. 

Schmidt told police that in the three months during which she had been selling morphine for the applicant, his profits from sales made by her was in the range between $16,000 and $23,000.  An analysis of bank accounts controlled by the applicant during the period from September 2000 to April 2002 showed that in excess of $88,000 was credited to him.

The appellant now asserts that these figures were excessive insofar as they reflect the proceeds of drug trafficking, but this Court cannot now be asked to act upon unsupported assertions which are contrary to the agreed basis upon which the sentence proceeded.

On the basis that, as appears to be the case, the appellant earned $30 for each tablet of morphine sold by his retailers, he must have supplied something in the order of 2,900 tablets.  The sentencing judge made an order forfeiting $90,000 in respect of the total amount derived by the applicant.  It is apparent that this order is unlikely to lead to any recovery from the applicant.

As to the applicant's circumstances, he was born on 3 February 1949.  He was in his early fifties when he committed the offences and he was 57 years old when he was sentenced.  The applicant receives a disability pension because of a neck injury he suffered during the 1980s.  He suffers continuing neck pain from that injury.

The applicant has a lengthy history of relatively minor criminal activity which began in 1969.  His previous offending involved, in the main, offences of dishonesty.  He was imprisoned in 1979 for unlawful use of a motor vehicle. 

The applicant has a long history of excessive drinking and smoking.  Since about 1990 he has suffered acute pancreatitis, in 1990 he suffered a liver abscess.  He is a diabetic and is therefore insulin dependent.  He also suffers from obstructive airways disease. 

The learned sentencing judge was told that because only high security prisons have the medical facilities needed by the applicant, his time in custody will be served in a high security prison.  The applicant's time in prison will, therefore, be harder than would otherwise be the case. 

On the other hand, it should be noted that the applicant was able to make three trips to Indonesia during the period of his unlawful trafficking in morphine and furthermore, the applicant took advantage of his ill-health to acquire the morphine which he then onsold. 

As to the sentence which was imposed, the Crown Prosecutor submitted below that the appropriate range of penalty was to six to eight years imprisonment with an early recommendation for parole to reflect the applicant's plea of guilty.  Counsel for the applicant submitted that the appropriate penalty was five years imprisonment with a recommendation for early release after two years. 

The sentencing judge regarded the criminality of the applicant's conduct as so serious as to require a longer period of imprisonment than five years even taking into account the benefit to which the applicant was entitled by reason of his plea of guilty.  In that regard, it must be acknowledged that the applicant was a substantial dealer in a Sch 2 drug, that his motivation was commercial and that he engaged in a persistent course of deception to obtain the drugs he needed for his business. 

The applicant contends for a head sentence of five years and seeks an order that his sentence be suspended after two years.  The applicant is also apprehensive that the recommendation for post-prison community based release will either not be acted upon by the authorities or will be unduly onerous for him.

Reference to decisions of this Court concerned with trafficking in methylamphetamine where it was, as morphine still is, a Sch 2 drug shows clearly that the submission that a head sentence for five years imprisonment is excessive must be rejected.

In R v Grima [2000] QCA 105, the offender pleaded guilty to trafficking in methylamphetamine and possession of cannabis on two occasions.  He was sentenced to four years imprisonment for the offence of trafficking and lesser concurrent sentences for the other offences.

At the time of the offences, as I've mentioned, methylamphetamine was a Sch 2 dangerous drug.  The trafficking took place over a period of about six weeks.  It generated cash received to the offender of $15,200.  The offender had no previous criminal convictions.  This Court held that a sentence then under review of four years was not manifestly excessive.

The facts in Grima may be contrasted with the facts of this case in that in Grima the offending conduct occurred over a much shorter period.  It was productive of a very modest reward in comparison with the applicant's earning in this case.  The offender in Grima was at the retail or street level and did not engage in the criminal deceptions which characterised the applicant's modus operandi in this case.  Finally, of course, the offender in Grima had no criminal record.

In R v Macey [2002] QCA 271, the offender pleaded guilty to seven counts, the most serious of which were trafficking in methylamphetamine, producing the drug and possessing property obtained from trafficking.  The offender was sentenced to seven years imprisonment on the trafficking count and lesser concurrent sentences on the other counts. 

That offender was 26 years of age when he committed the last of the offences in question and he had no previous convictions.  It seemed that the trafficking occurred over a period of about seven and a half months. It also seems that the offender derived $15,000 from the operations.  The offender's main customers were truck drivers. 

This Court held that the sentence was not manifestly excessive and observed that the decision of this Court in R v Geary [2002] QCA 33 showed that the range of sentence could well extend to 10 years imprisonment.

In R v O'Connor [2002] QCA 467, the offender was sentenced after a trial to seven and a half years imprisonment for one count of trafficking in methylamphetamine. He was also convicted of eight counts of supplying methylamphetamine. 

The period of trafficking was approximately two years, the evidence established that the offender had received $13,600 from the sales of drugs made by him.  The offender was a wholesaler of drugs whose motivation was commercial.  He was 49 to 50 years at old at the time of the offending.  He had no prior convictions.  This Court refused an application for leave to appeal against sentence.

In the light of these decisions, on no view can the sentence of five years imprisonment in this case be said to be excessive.  This is a case of prolonged commercial drug dealing for substantial profits.  The drugs were obtained by a process of persistent and cynical dishonesty. The applicant's unfortunate personal circumstances cannot alter the need for a sentence which reflects the serious criminality of the applicant's offending. 

The applicant's unfortunate personal circumstances and the benefit to which he was entitled by reason of his plea of guilty were reflected in the recommendation for early release.  See in this regard R v Corrigan [1994] 2 Qd R 415. 

The applicant's prospects of being released on post-prison community based release are in his own hands.  He is certainly not a suitable candidate for a suspended sentence.  His history of dishonesty and his alcohol problems indicate that it is in both his interests and the interests of the community that his early release from prison should be subject to close supervision by the authorities. 

The applicant says that he will experience extreme difficulty in earning an honest income as a gold prospector because of the requirements of supervision while on parole.  But that consideration cannot render a suspended sentence appropriate for a person with his record of dishonesty and tendency to use his ill-health as an occasion for earning a dishonest living.

In my opinion, the application for leave to appeal against sentence should be refused. 

I should correct what I said earlier in relation to the period of sentence imposed on Mr Shailer. The period of sentence was six years imprisonment. That period is, by reference to the authorities to which I've referred, by no means excessive.

THE CHIEF JUSTICE:  I agree.

THE PRESIDENT:  I agree.

THE CHIEF JUSTICE:  The application is refused.