SUPREME COURT OF QUEENSLAND

[1]  de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Jerrard JA.  I agree with the orders His Honour proposes, and with his reasons.

[2] WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Jerrard JA and there is nothing I wish to add thereto.  The orders should be as he proposes.

[3]  JERRARD JA:  On 10 April 2006 Mr de Carteret pleaded guilty to the offences of having unlawful possession of the dangerous drug 3, 4-methylenedioxymethamphetamine (MDMA, or “ecstasy”) on 21 February 2005 at Fortitude Valley in Brisbane, to possessing on 21 January 2005 $420 reasonably suspected of being the proceeds of an offence against the Drugs Misuse Act 1986 (Qld), and to possessing on that latter date two mobile telephones reasonably suspected of having been used in connection with the commission of an offence against that Act.  He was sentenced to imprisonment to two and a half years, suspended after serving nine months, with an operational period of three years.  That sentence was imposed for possession of the ecstasy, and for the other two offences concurrent terms of six months imprisonment were passed.  Mr de Carteret has applied for leave to appeal the nine months in actual custody, contending that in the circumstances that sentence was manifestly excessive.  He had not challenged the two concurrent terms of six months.

[4] Those circumstances were that Mr de Carteret, then aged 23, and 24 at the time of sentence, and who had no prior convictions, was located at about 10.30 pm on Friday 21 January 2005 at a toilet in a nightclub in the Fortitude Valley area, attempting to conceal a plastic bag in the front of his jeans.  The police detained him and removed the bag, which contained 251 ecstasy tablets, embossed with a crocodile emblem; he also had a second, smaller bag in his underwear which he produced later at the police station. The smaller bag contained another six tablets and a small amount of powder.  In all he possessed 20.536 grams of pure ecstasy.

[5] The $420 in his wallet was all in $20 notes.  The learned sentencing judge was told that the “going rate” for tablets of ecstasy was around the $20 to $30 mark.  One of the mobile phones contained on it a message reading “Can you still save those 20 Crocs for us?”  That message had been sent some time in January 2005, and there was another message saying “Do you have that 20 for us?”  On the other phone one message read “Babe, I am fully going to get stitched up if I can’t come up with shit.  I know you are trying but is there anyone else?  They don’t have to be the same.”

[6] Those circumstances, and the pleas of guilty to the three charges, support the submission that the prosecution made to the learned sentencing judge that Mr de Carteret was “obviously a drug dealer of some sort”.  The prosecutor referred to the possession of that substantial number of ecstasy tablets in a busy nightclub on a Friday night, together with possession with money in those denominations, and the messages on the two mobile phones.  The prosecutor accordingly suggested that the appropriate head sentence would fall between two to two and a half years imprisonment, which might be suspended after eight or nine months, depending on whatever view the learned judge took of the matter.

[7] The prosecutor referred in support of that submission to a decision of this Court in R v Wynyard [2004] QCA 431.[1] Mr Wynyard pleaded guilty to two counts of possessing dangerous drugs, those offences occurring in December 2002.  The first count related to possession of 422 tablets of ecstasy, with a net weight in excess of 30 grams, those tablets being found in a rubbish bin in a kitchen at Mr Wynyard’s unit.  The other count related to a small quantity of cannabis sativa.  Mr Wynyard gave inconsistent and unconvincing explanations for possession of those tablets, which were described as having a retail value of $12,000, and the learned sentencing judge had rejected Mr Wynyard’s evidence that those drugs were for his own use, inferring instead that the possession was for a commercial purpose.  Mr Wynyard was sentenced to two and a half years imprisonment, suspended after 12 months for an operational period of three years, and this Court dismissed his application for leave to appeal.

[8] Mr Wynyard was 42 when he offended, and therefore much older than Mr de Carteret, who is a still relatively young first offender; Mr Wynyard had no relevant prior convictions.  He had 422 tablets of ecstasy, and Mr de Carteret had 257 tablets, as well as the small quantity of powder (about 1.5 grams in weight).  The powder had a purity of 70 per cent, twice that of the average purity of the tablets (30 per cent), and the commercial value of what Mr de Carteret possessed was somewhere between $5,000 and $8,000, less than what Mr Wynyard had.  But Mr de Carteret’s possession happened in a nightclub where there would be ready customers, and the circumstances justified the conclusion that the learned sentencing judge drew, that Mr de Carteret possessed those drugs for the purpose of commercial dealing.

[9] The learned sentencing judge also referred to, and apparently accepted, information placed before the judge suggesting that Mr de Carteret himself had become accustomed to taking between 10 to 20 of those ecstasy tablets over an extended period of four days from a Thursday to a Sunday, on a regular basis, that he had bought tablets in bulk to achieve economies of scale, and that his dealing in those tablets was in infancy in the sense that he had not engaged in that kind of conduct for very long.  The judge also described being told that Mr de Carteret had ceased using drugs since his arrest.

[10]  The comparison of Mr de Carteret’s circumstances with Mr Wynyard’s shows that Mr de Carteret had gone further along the path of dealing in ecstasy than Mr Wynyard was shown to have done, and that comparison shows that Mr de Carteret’s sentence is not manifestly excessive compared to Mr Wynyard’s, nor disproportionate, and it does not give Mr de Carteret any legitimate grounds for any sense of grievance at his sentence.  Mr de Carteret’s legal representative accepted on the sentence that it was appropriate to impose a head sentence in the region of two to two and a half years, and so the only issue was whether or not some of that imprisonment should be ordered to be served, or whether it could all be suspended, as that lawyer urged the sentencing judge to do.  I respectfully agree with the learned judge that it was not possible to fully suspend the sentence because of the overall circumstances, and that there has to be a significant element of general deterrence in cases of this kind.  The judge might have imposed a shorter period of imprisonment in actual custody, namely of between six to eight months, as Mr de Carteret’s lawyer now urges should be ordered, but even that submission reveals that the penalty imposed was not manifestly excessive, and was within the proper exercise of the sentencing discretion. 

[11]  Mr de Carteret’s lawyer placed considerable reliance on the appeal on the outcome in R v Bagnall [2005] QCA 20[2], where this Court dismissed an application for leave to appeal a sentence of three years imprisonment suspended after that applicant had served nine months, with an operational period of five years.  That sentence was imposed after that applicant had pleaded guilty to an ex-officio indictment charging him with trafficking in MDMA and methylamphetamine for a five week period in July 2004, and for more minor offences of possession of cannabis and of methylamphetamine on the date of his arrest, 8 July 2004.  That applicant was arrested during the course of a police investigation involving covert officers, and the applicant had sold MDMA tablets and methylamphetamine to a covert police officer on five separate occasions in the 39 day period of that applicant’s trafficking.  On all five occasions MDMA tablets were sold, and some methylamphetamine was sold on one as well.  That applicant supplied that covert police officer with a total of 261 ecstasy tablets, with a concentration of pure MDMA of 20.921 grams, and with a small quantity of methylamphetamine.  That applicant was paid a total of $8,780 for those five transactions.  He maintained that he made no profit from selling the drugs, and that his only reward was ecstasy tablets for his own consumption.

[12]  That applicant had a number of prior convictions for drug offences, those being one in 1994 for possessing cannabis, one in 1996 for another such offence, a third cannabis possession offence in early 2003, and a conviction in mid-2004 for possessing both cannabis and MDMA.  He was 29 years old when arrested and when sentenced. 

[13]  That applicant was convicted of trafficking, and not simply of possession, and had prior convictions.  His offending with MDMA was in respect of a like quantity of that drug in pure form to Mr de Carteret’s offending, and involved almost the same number of tablets, but because of that offender’s prior history and the conviction for trafficking, that offender would normally receive a heavier sentence than Mr de Carteret could expect.  Accordingly the comparison between those two sentences, much relied on in this application, does at first suggest that Mr de Carteret’s sentence was higher than could be expected.

[14]  But that argument cannot be sustained once one notices the concluding remarks in the judgment in R v Bagnall, delivered by Chesterman J, and which was the judgment of the Court.  His Honour remarked:

“In my opinion a term of imprisonment of three years without any recommendation for early release or suspension would not have been excessive.  In ordering that the sentence be suspended after nine months her Honour gave considerable weight to the factors in the applicant’s favour.  To ask for even more favourable treatment, is in my opinion, impudent.”

[15]  It follows that the judgment in R v Bagnall does not show that this sentence was manifestly excessive, only (and expressly) that that other sentence was lenient.  Accordingly, the application for leave to appeal fails on the merits, but should be allowed – and the appeal dismissed – to enable this Court to correct a formal defect in the indictment.  The Court is grateful to Mr M J Copley for bringing this defect to its attention.  As noted in the first paragraph of this judgment, Mr de Carteret pleaded guilty to possessing ecstasy on 21 February 2005 and to two other offences committed on 21 January that year.  In fact all offences occurred on 21 January 2005 and this Court should exercise its power of amendment (given by s 572(3) of the Criminal Code 1899 (Qld)) and order the indictment be amended.  That results in the indictment reflecting what the parties understood the case to be[3] and causes no injustice.  I would order:

●        that the application for leave to appeal be allowed;

●the indictment be amended to delete the word                       “February”    in count 1 and insert the word “January”;

●        the appeal be otherwise dismissed.