R v O'Brien[2006] QCA 482

SUPREME COURT OF QUEENSLAND 

HOLMES JA:  The applicant seeks leave to appeal against sentences imposed on him after a plea of guilty on one count of trafficking in methylamphetamine,

3,4-methylenedioxymethamphetamine (ecstasy) as I will refer to it, and cannabis sativa, five counts of supplying ecstasy, four counts of possessing a dangerous drug in excess of two grams, seven counts of possessing a dangerous drug simpliciter and one count of possessing things used in connection with supplying a dangerous drug. 

In addition there were 12 summary charges: three of possession, possessing a thing for use in connection with the supply of a dangerous drug, two of possessing proceeds of a crime, four of possessing utensils, two of possessing tainted property, one of possessing a restricted item (handcuffs) and one breach of bail conditions.

Separate sentences of imprisonment were imposed in respect of each of the offences on the indictment, the most significant of which were eight years with a recommendation for parole after two years and eight months on the trafficking, and six years on each of the counts of possession with a circumstance of aggravation.  No further penalties were imposed on the summary offences.

The trafficking was alleged over a 22 month period between March 2002 and January 2004.  The applicant first seems to have come to police attention in November 2002 when he was pointed out in a nightclub to a covert police operative as someone who could supply pills to her.  He duly gave her two ecstasy tablets for $80.  He told her that he usually attended three nightclubs, did not normally give a phone number to new customers and could supply tablets in lots of 100 at $27 each.

About a month later the same operative again approached the applicant at the same nightclub; he asked her if she wanted “whiz or pill”.  She made a purchase of five ecstasy tablets at $40 each. 

On the 27th of March 2003 police executed a search warrant on premises occupied by the applicant and found, inside safes in his bedroom, a variety of drugs apparently packaged for sale.  They comprised 284 ecstasy tablets, five clip seal bags of methylamphetamine, one amphetamine tablet, .013 of

N-dimethyltryptamine which was said, at the sentence, to be similar in effect to LSD, and four tablets which were either Ketamine or a mixture of caffeine and Ketamine.  Those discoveries gave rise to five of the possession charges.

The police also found two mobile phones, two sets of electronic scales, two calculators, clip seal bags and other paraphernalia which gave rise to the count on the indictment of possession of things for use in connection with the supply of a dangerous drug.  They also found a notebook and diary containing entries indicating receipts of over $30,000 in that year and the preceding year.  And they found handcuffs, smoking pipes and $25,610 in cash which gave rise to summary charges.  The applicant was, it should be noted, on bail from the time of these charges. 

On the 6th of December 2003 the police intercepted a package sent to a man in Cairns which was found to contain one bag with 50 ecstasy tablets and another with a single ecstasy tablet.  The recipient had deposited $3,000 to the applicant's account.  Two earlier transactions in the preceding weeks in which he had paid the applicant $2,500 and $1,200 were identified and were also charged as supplies of ecstasy.

On the 11th of December 2003 police went to the applicant's residence because of a domestic dispute and conducted a search of the premises with the applicant's consent.  They found 31 ecstasy tablets, two clip seal bags of methylamphetamine, seven bags of cannabis sativa weighing 55.4 grams and $1,750 in cash, as well as clip seal bags and scales.  On the 22nd of January 2004 another search of the applicant's premises located, in a wall cavity, 443 ecstasy tablets, seven clip seal bags of methylamphetamine and two clip seal bags containing 68 grams of cannabis sativa.  Again the police found four sets of electronic scales, clip seal bags, $1,650 and a diary and notebook containing references to drugs.  Those two searches gave rise to charges of possession of methylamphetamine, ecstasy and cannabis sativa.

The quantities of drugs the subject of the possession charges were summarised as 47.626 grams (pure weight) of methylenedioxymethamphetamine, 35.259 grams of pure methylamphetamine, .005 of amphetamine, 123.4 grams of cannabis sativa, 4.552 grams of Ketamine and .0103 grams of

N-dimethyltryptamine.  3.808 grams pure methylenedioxymethamphetamine were supplied.  It was accepted by the Crown that the purity of the drugs involved was generally low, at around 20 percent.  The Crown was able, from an analysis of the applicant's finances, to establish that for the seven months between September 2002 and March 2003 he had received about $60,000 from unknown sources.  No calculation was available for the balance of the period involved in the trafficking counts.

The applicant is 36 years old and was aged 32 or 33 at the time of the offences.  He had no criminal history.  He had completed an undergraduate degree in Applied Science and some post-graduate diplomas and was a licensed plane and helicopter pilot.  In the mid-1990s he had worked in responsible positions in aviation and in 2000 had set up his own helicopter business.  In 2001 he was involved in a helicopter crash.  Because of its psychological effects on him, together with the fact that the helicopter was underinsured, the business failed.

The applicant then began using amphetamines and ecstasy and started selling drugs to support his addiction.  He was not employed again over the period of the offending apart from a six month contract as an Environment Health Officer, but he did set up two companies, one of them doing graphic design work and the other training services for businesses in outdoor education and adventure programmes.  He had a good deal of community work to his credit.  He had been involved in surf lifesaving, was an Australian Red Cross examiner and had volunteered during the 1990s as a fire fighter. 

A psychologist's report tendered on the applicant's behalf suggested that his drug use resulted from low self-esteem and immaturity, aggravated by the helicopter crash and the loss of his business.  The psychologist considered that he was currently in remission from his drug dependence but required long term psychotherapy to assist with his personality problems and to avoid a return to drug use.

In the applicant's favour it was put before the sentencing judge, and was accepted, that since receiving bail on the 27th of February 2004 he had abided by stringent conditions, including a curfew without re-offending.  He had made significant attempts to rehabilitate himself: he had not used drugs and had since mid-2004 been employed again as an Environmental Health Officer, staying in the same employment, with the local authority, ever since.

References from friends and his parents spoke of his remorse and rehabilitation.  The case then proceeded by way of full hand up committal with an early indication of a plea of guilty.  The learned sentencing Judge proceeded on the basis that the applicant had acted alone in supplying drugs.  He observed, however, what was obvious that it was a very serious set of offending aggravated by the fact that a number of the offences were committed while he was on bail.

The applicant's primary argument was that insufficient emphasis was given to the applicant's rehabilitation in circumstances where he had not, prior to the matters for which he was sentenced, committed any offences and had, since February 2004, complied with the bail conditions, remained drug free and continued in steady employment.  Counsel also pointed out that the effect of the Judge’s sentencing was to leave the applicant without any recommendation for parole on the possession charges so that he would not be eligible until he had served three years imprisonment.  That seems, clearly, to have been an oversight.

Both Crown and applicant referred to sentences in what were said to be comparable matters.  The applicant relied on

R v Rizk [2004] QCA 382, R v Kashton [2005] QCA 70 and, probably of most assistance to the applicant, R v Barton [2006] QCA 367.  In Barton, the applicant had pleaded guilty to trafficking in methylamphetamine over a two and a half month period.  On seven occasions she had sold methylamphetamine to an undercover police officer for $14,700 in total.  The applicant was 24 years old at the time of the offences and was the mother of a small child.  She had had a long-standing drug addiction and a relatively insignificant drug-related criminal history.  She was sentenced to seven years imprisonment with a recommendation for parole after two years and three months.  On appeal, this Court, concluding that the recommendation did not properly recognise her “impressive and apparently successful efforts at rehabilitation” since her daughter was born, set aside the sentence to the extent of replacing the recommendation for parole with one of eligibility after 18 months.

The Crown relied on R v Bradforth [2003] QCA 183, R v Taylor [2005] QCA 379 and placed most emphasis on R v Raciti [2004] QCA 359.  Raciti had pleaded guilty to trafficking in ecstasy, methylamphetamine and cocaine over a four month period.  He had been under surveillance and had been detected in purchases of large quantities of ecstasy tablets, some of those offences taking place while he was on bail.  He was middle aged, had previous drug convictions and, it seems to have been accepted, was a user.  He had, by the time of sentencing, progressed well in a detoxification course; but that factor, the Court said, was rendered much less impressive by the fact that he had previously been given a chance and gone back to trafficking while on bail.  He had been sentenced to 11 years imprisonment; because of an error, the Court considered itself required to re-sentence but imposed the same sentence on the trafficking charge, observing, having regard to a range which the Court elicited from the Bradforth case, that a sentence of 11 years was justified.

Having regard to the cases cited, it is quite clear that the head sentence of eight years here was not excessive.  A factor which weighed strongly against the applicant was his earlier repeated re-offending on bail.  But he was entitled to credit for his co-operation and his apparent rehabilitation.  (By co-operation I mean to some extent the fact that he allowed the police to search his house on one occasion, but more importantly the timely plea of guilty and the full hand up committal.)  The recommendation for parole after a third of the sentence appropriately recognised that aspect of co-operation, but not sufficiently, in my view, the other aspect of rehabilitation.  The case had the unusual feature that before November 2002 the applicant had led an exemplary life, and after February 2004, and for the period of two and a half years up until sentence, he seems to have resumed it.  Unlike the situation in Raciti, this was a turnaround too substantial and significant to be entirely outweighed by the feature that the later offences had occurred while he was on bail.  It should, in my opinion, have been reflected in an earlier recommendation for parole, at two years, applied also to the sentences on the counts of possession with a circumstance of aggravation. 

I would allow the application for leave to appeal.  Although no point was taken on appeal, it was inappropriate to impose separate sentences in respect of the supply counts: see R v Elhusseini [1998] 2 Qd R 442, R v Ianculescu [2002] Qd R 528. 

I would, therefore, set aside the sentences on counts 2, 3, 10, 11 and 12.  I would vary the sentences on counts 1, 4, 7, 16 and 17 in this way: in respect of count 1, by deleting the recommendation that the applicant be eligible for parole after two years and eight months, and in respect of all of those counts fixing the applicant's parole eligibility date as 15 July 2008.  That gives effect to a recommendation after two years, allowing for 36 days that the applicant had already spent in custody.  The declaration that the applicant had already served 36 days of his sentence on all counts between 22nd of January 2004 and the 27th of February 2004 should remain.

THE CHIEF JUSTICE:  I am grateful to Justice Holmes for setting out the relevant circumstances.  The features to be balanced here were principally the seriousness of the offences, especially the trafficking in the schedule 1 drug, methylamphetamine, and MDMA, over a substantial period of 21 months, that the applicant twice continued to reoffend in substantial ways after being granted bail, and on the other side, his previously exemplary life of considerable accomplishment and serious promise of his rehabilitation together, of course, with his pleas of guilty and cooperation.

The sentencing Judge's remarks show that he gave careful and comprehensive reasons for the sentences he imposed, which indicated he balanced those and other relevant factors in what he fairly described as a difficult exercise.  I do not consider the applicant has shown the sentence with parole recommended after two years eight months, or one third, to have been manifestly excessive.

The applicant sought a recommendation before us after 18 to 20 months.  I do not consider this Court should disturb his Honour's recommendation in that way.  In short, the applicant has not demonstrated that the Judge's discretion miscarried.  As to R v Barton [2006] QCA 367 and R v Raciti [2004] QCA 359, I do not consider we should proceed on an assumption a one third parole recommendation is the norm for cooperation with the authorities in pleas of guilty. 

A recommendation is crafted to reflect a number of features in the usual case, and in this one the feature of rehabilitation was one of them.  A recommendation will usually be made in the general recognition also of the gravity of the offending, here enhanced by its resumption following grants of bail.  In the end I am not satisfied that to make a recommendation for parole after as long as one third of the head sentence involved an approach to sentencing which was manifestly excessive such as would warrant interference.

I would dismiss the application save for setting aside the sentences on the supply counts numbers 2, 3, 10, 11 and 12, for the reason given by Justice Holmes, and adding the same parole recommendation, that is after two years eight months, to the six year terms imposed in respect of counts 4, 7, 16 and 17.

JERRARD JA:  While I respect the authority of the views of the Chief Justice, I agree with the orders imposed by Justice Holmes and with her Honour's reasons.  I consider that the sentences imposed do not sufficiently reflect the two and a half years on bail in which this applicant took impressive steps to show that he had rehabilitated himself.  That was a matter relevant to the sentences to be imposed and for that reason I agree with the orders suggested by Justice Holmes.

THE CHIEF JUSTICE:  The orders are as indicated by Justice Holmes.