R v Scott[2006] QCA 76

 SUPREME COURT OF QUEENSLAND

WILLIAMS JA:  I'll ask Keane J to deliver his reasons first.

KEANE JA:  On 16 December 2005 the applicant was convicted on his plea of guilty on one count of trafficking in dangerous drugs, three counts of possession of dangerous drugs and one count of possession of things used in connection with dangerous drugs.

In respect of the trafficking count he was sentenced to three years and six months imprisonment with a recommendation of post prison community based release after 15 months.  He was sentenced to lesser concurrent sentences on the other counts.

The applicant seeks to appeal against that sentence on the grounds that the learned sentencing judge "failed to place sufficient weight on mitigating factors in favour of the applicant" and that "the sentenced imposed is manifestly excessive".

As to the circumstances of the offences, the offence of trafficking concerned methylamphetamine and cannabis.  It was committed between 15 March and 22 May 2003.  The possession offences were committed between 18 May 2003 and 21 May 2003.  They related to methylamphetamine and cannabis and a mobile phone used in connection with the trafficking offences.

On 18 May 2003 police searched the applicant's unit at Kingston where he was residing.  The searched revealed drug taking paraphernalia and two plastic bags containing 2.458 grams of pink crystals which when analysed were found to contain 0.56 grams of pure methylamphetamine.  Four other plastic bags contained clear liquid residue and white powder.  One of these bags contained 0.374 grams of powder which contained 0.035 grams of pure methylamphetamine.  The applicant admitted the materials found in the other bags were glucose and Epsom salts.  These materials are used in the manufacture of commercial methylamphetamine.  He admitted he was a user of methylamphetamine.

As to the trafficking charge, on 21 May 2003, the police found the applicant with another person near a residence of interest to police because of drug activity focused thereon.  The applicant was found to have a small quantity, about 1 gram, of cannabis on his person and two plastic bags containing 2.288 grams of white powder which, when analysed, were found to contain 0.461 grams of methylamphetamine.  He was also in possession of a mobile phone and $200 in cash in $50 notes.

The applicant agreed to a formal interview with police in which he admitted supplying cannabis sativa and methylamphetamine to between five and eight people over a period of about two months.  He said that of the drug supplies he purchased he would use some for his own use and sell the balance to fund his own habit.  He admitted that he used a mobile phone to arrange the sale of drugs to other people.

The trafficking offence and the two other offences of 21 May 2003 were committed while he was on bail in respect of the offences of 18 May 2003.

As to the applicant's circumstances, he was born on 13 January 1982.  He was thus 21 years of age at the date of the offences and 23 years of age at the date of sentence.

The applicant has a minor criminal record including a conviction in October 2004 for possession of a dangerous drug.

The applicant has three children, two with his previous partner and one with his current partner.  It was said that he endured a "turbulent break-up" with his previous partner in 2002.  He became depressed and resorted to using amphetamines as a result.

The applicant is a plasterer by trade.  He is well thought of by a former employer and has the prospect of a ready return to work when released from prison.

It was said that the applicant suffers from an inherited disorder of the heart, the symptoms of which include tachycardia but it may be that this condition is affected by the use of methylamphetamines.

At the hearing below the applicant's counsel said that the applicant understood the seriousness of his offending and understood that a term of actual imprisonment was inevitable.  It was submitted that any term of imprisonment should be suspended after nine months.

The learned sentencing judge referred to the need for a severe penalty in relation to trafficking in drugs especially methylamphetamine.  His Honour took into account the applicant's plea of guilty but noted that it was a relatively late plea.  In this regard, the applicant was committed for trial on 28 July 2004.  An indictment was presented on 17 December 2004.  The applicant indicated to the authorities that he intended to plead guilty on 4 February 2005.  The matter was listed for sentence on 8 April 2005 but before that time the applicant changed lawyers.  According to the Crown Prosecutor's account of events, at first instance on 24 June 2005 the applicant's lawyers indicated to the Director of Public Prosecutions that it was likely that the matter would proceed to trial.  On 30 September 2005 the matter was listed for 16 December 2005 on the basis the applicant would be pleading guilty on that day.

There was some question before the learned sentencing judge in relation to the suggestion that the applicant had decided in June 2005 to proceed to trial but it is not clear that it was actually asserted that the prosecutor's version of events was factually incorrect.  The learned trial judge accepted that the applicant was entitled to a discount by reason of his plea but said that this discount would not be "the amount of mitigation" which the applicant would have obtained from a plea before committal.  His Honour's reference to a plea before committal was criticised as erroneous in point of law on the footing that there could not, in law, have been a plea of guilty to an indictable offence before committal.

His Honour took into account, with less reservation, the mitigating effect of the applicant's admissions to the police, the unsophisticated nature of the applicant's trafficking business and his youth.

Importantly his Honour accepted that the applicant had largely overcome his drug addiction.

The learned primary judge did not accept that a suspended sentence was appropriate because he thought that it would be desirable to ensure that the applicant has the benefit of further supervision.  His Honour was willing to recommend the applicant's release on parole earlier than would ordinarily be expected. 

The applicant contends that the circumstances of mitigation in his favour were not given sufficient weight by the learned sentencing judge.  The applicant refers in particular to the applicant's pleas of guilty and the circumstance that the trafficking charge was only brought because of the applicant's confession to the police.  The applicant contends that the learned sentencing judge erred in trying to treat the applicant's plea of guilty as an "early plea".

The facts on this issue are the subject of some dispute, but in my view, it is not necessary to resolve this issue because I consider that even if the applicant's plea is regarded as an "early plea", the sentence which was imposed should not be varied as the applicant contends.  The head sentence for which the applicant's counsel contended was three years.  The Crown contended for a range of between three and five years and it is apparent from the decision of this Court in R v Oldfield [2004] QCA 435 and the decisions reviewed there (see especially R v Fry & Fry [2000] QCA 89; R v Zeremes & Zermes [2003] QCA 255 and R v Burge [2004] QCA 161), that in cases of trafficking in methylamphetamine even at the lower end of the scale of seriousness, a range of three to five years is appropriate.  It was clearly open to the learned sentencing judge to take the view that a suspended sentence was inappropriate in this case having regard to the applicant's history of addiction and the desirability of providing support and supervision when the applicant returns to the community.  The applicant does not now urge a contrary view.

The applicant contends that the learned sentencing judge should however have made a recommendation for post-prison community based release after nine months.

The range of imprisonment, having regard to the authorities, was three to five years.  It is apparent, from what has been said above concerning the learned sentencing judge's approach, that he gave the applicant substantial credit for the circumstances personal to the applicant, including his admission to trafficking, in fixing upon a sentence at the lower end of the range and in further moderating that sentence by recommending that the applicant be considered for post prison community based release six months earlier than would have been the case had no recommendation been made.

The question for this Court is whether a sentence which obliges the applicant to serve 15 months imprisonment before he will become eligible for parole is manifestly excessive.  In my view this question must be answered in the negative.  In any event, even if the relevant question was whether a non-parole period of nine months is appropriate, I would also answer that question in the negative.

In so far as it is said that the applicant has cured himself of his habit, that establishes a positive prospect for the applicant's rehabilitation, but does not obviate the need for general deterrence and for a sentence which reflects the serious criminality of the offending by an offender who is now a mature man.  In the case of an offence of trafficking committed whilst the offender is on bail, considerations of personal deterrence are also engaged. 

As I have said, the sentence which was imposed reflected a substantial discount for mitigating circumstances.  It cannot be said that the absence of greater liberality renders the sentence excessive when one bears in mind that, in R v Fry [2000] QCA 89, a 22 year old female addict with no substantial prior convictions, pleaded guilty and co-operated with the police and was sentenced to three years imprisonment without any recommendation.  The trafficking involved in that case was more extensive than in the present case, but the sentence was imposed before methylamphetamine became a Schedule 1 drug.

In R v Burge [2004] QCA 161, a sentence of three years imprisonment suspended after 18 months for an operational period of three years was varied on appeal to this Court by an order that the sentence be suspended after nine months.  In that case, however, the offender was 18 to 19 years of age at the time of the offending and had acted as the secretary to her de facto husband who played the dominant role in the supply of methylamphetamine.  The offender had no criminal history and had made genuine attempts at rehabilitation.  The case was said to be in a "very special category warranting unusual leniency" because of the offender's youth, her addiction, her dependence on her de facto husband as her supplier and her subservient position in a very abusive and violent relationship with her de facto husband.  Factors of that kind are not present in this case. Further there is here, counterbalancing the applicant's admission to trafficking, the circumstance that the trafficking offence was committed while the applicant was on bail for the earlier offences.

The circumstances of the present case fall within the category of cases represented by the decision in the R v Fry rather than the class of the very rare case of which R v Burge is an example.

In my respectful opinion, the sentence which was imposed was not excessive, indeed it was clearly appropriate for circumstances of the case.  I would dismiss the application for leave to appeal against sentence.

WILLIAMS JA:  I agree.

DOUGLAS J:  I agree.

WILLIAMS JA:  Well, the order of the Court is the application is dismissed.