R v WR[2007] QCA 16

SUPREME COURT OF QUEENSLAND

KEANE JA:  On 3 November 2006, the applicant was convicted on his own plea of guilty of one count of trafficking in the dangerous drug methylamphetamine, one count of production of methylamphetamine, four counts of supplying methylamphetamine and one count of possession of methylamphetamine.  The applicant also pleaded guilty to two summary offences of possession of property, acquired for, and used in connection with, the commission of an offence.  The learned sentencing Judge sentenced the applicant to five years imprisonment, suspended after two years for an operational period of five years in respect of the trafficking offence, and four years imprisonment suspended after 12 months in respect of the production offence, for an operational period of five years.  The sentences were to be served concurrently.  No further penalty was imposed in respect of the other offences. 

The applicant seeks leave to appeal against this sentence on the ground that it was manifestly excessive.

As to the circumstances of the offence, the applicant was apprehended by police officers after they were informed by a pharmacist that the applicant had purchased large quantities of drugs containing pseudoephedrine.  The applicant admitted to the police that he had engaged in trafficking methylamphetamine over a period of 13 and a half months between March 2002 and April 2003.  The applicant told police that he sold approximately 10 ounces, that is 280 grams, of methylamphetamine during this period.  The applicant operated at the retail level, as part of an interstate network selling to a regular client base, in his case, of between six and 10 individuals.  He was supplied by a third party, by parcels transported either on McCaffertys buses or through Australia Post.  Of his total turnover of $70,000, the applicant derived approximately $20,000.  He was addicted to methylamphetamine and it appears that the money he derived from his involvement in the business was largely used to support his addiction.

The applicant also admitted to police that over a period of approximately 10 months between June 2002 and April 2003, he obtained approximately 500 boxes of tablets of pseudoephedrine, which he couriered to other persons for the purpose of the production of methylamphetamine.  These tablets were purchased from many pharmacies in Queensland and New South Wales in the course of his occupation as a truck driver.  The applicant said, however, that he never actually participated in the actual manufacture of methylamphetamine himself.

The applicant admitted to four specific occasions when he supplied other persons with methylamphetamine between March 2002 and April 2003, and when the applicant was apprehended by police, 4.435 grams of white powder containing 1.005 grams of methylamphetamine were found in three separate clip seal bags in his motor vehicle.  The police also found three mobile telephones, a set of scales, $655 in cash and 75 packets of pharmaceutical drugs containing pseudoephedrine.

As to the applicant's personal circumstances, he was aged between 24 and 26 years at the time of the offending and he was 29 at the date on which he was sentenced.  The applicant's criminal history was of little significance.  In 1995 he was fined for possession of a dangerous drug and possession of a pipe used in making a dangerous drug.  In 1997 he was fined for dangerous driving. 

After being released on bail, the applicant obtained full-time employment.  The evidence from a clinical psychologist was to the effect that he became a user of methylamphetamine while working as an interstate truck driver.  He is said to be "extremely introverted" and to have "extreme difficulty relating to people".  He does not appear to have any supportive people in his life.  It appears, though, that the applicant has largely overcome his drug addiction.  During three and a half years between his apprehension and sentence the applicant committed no further offences.

The learned sentencing Judge referred, inevitably, to the need for a sentence which reflected considerations of deterrence and denunciations.  Her Honour noted that this was a case in which the applicant performed a role in a reasonably sophisticated drug distribution network. 

The learned sentencing Judge treated the applicant's plea of guilty as an early plea, even though a committal hearing had taken place.  The delay in bringing the matter to final determination was, it was common ground, not the applicant's fault.

The learned sentencing Judge heard submissions in-camera, pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld), relating to the applicant's co-operation with the authorities.  This co-operation extended to an undertaking to give evidence against individuals involved in the distribution of methylamphetamine.  Her Honour would have sentenced the applicant to seven and a half years imprisonment with a recommendation for consideration for release on parole, had it not been for the applicant's extensive co-operation with the authorities. 

On this application, the applicant contends that the sentence is manifestly excessive.  In my view, that contention cannot be accepted. 

On the applicant's behalf it is submitted the appropriate starting point, before taking into account mitigating factors, was six years imprisonment.  The applicant was a mature adult who traded in a Sch 1 dangerous drug.  He was active in his illicit trade, as part of a well organised network, for an extended period of time.  He was motivated, at least in part, by the prospect of financial gain, even though he used his profits largely to support his addiction.  Even allowing for his early plea of guilty and his apparent rehabilitation, a period of seven and a half years imprisonment was within the range of possible sentences indicated in the authorities, see R v Barton [2006] QCA 367 , especially at [15], where a head sentence of seven years was accepted by this Court as within range in a roughly similar case.  The applicant submits that a comparison with Barton's case suggested the present sentence was excessive, but in Barton's case the period of trafficking was only two and a half months, and the applicant in this case played an important role in a large production and distribution network.

The discounting allowed by her Honour for co-operation with the authorities and other mitigating factors, including the extent of the applicant's rehabilitation, was in truth, substantial.  It cannot, in my respectful opinion, be said that discounting was necessarily required to have been more generous. 

The first point to be made in this regard is that the value of the applicant's promise of co-operation in the future is limited.  Although the applicant identified his principal and other participants in the trade, the information which he provided to police about other offenders was given in broad terms and no significant drug traffickers have been apprehended as a result of this information.  It seems unlikely that he will be called upon to honour his undertaking as to future co-operation.  The prospect that he will be exposed to the risks to personal safety which are usually thought to call for a significant informer's discount, is therefore slight. 

The next point to be made here is that, to the extent that the applicant is entitled to consideration for his admissions because they reflect good prospects of rehabilitation, that consideration is largely subsumed by the rehabilitation actually achieved by the applicant.  While the applicant's apparent rehabilitation is commendable, it cannot deny the necessity for a substantial punishment for his lengthy, deliberate and persistent involvement in a well-organised criminal trade which causes enormous harm to the community.  The learned sentencing Judge gave the applicant the real benefit of a suspended sentence, rather than a recommendation for parole which may not have been acted upon by the authorities.  A sentence which obliged this applicant to spend less than two years in actual custody could reasonably have been regarded by the learned sentencing Judge as apt to constitute an affront to community standards, see R v Gladkowski (2000) 115 A Crim R 446 at [7].

In conclusion, I consider that the sentence which was imposed was not manifestly excessive.  I would therefore dismiss the application for leave to appeal against sentence.

WILLIAMS JA:  I agree.

MULLINS J:  I agree.

WILLIAMS JA:  Well, the order of the Court is that the application for leave to appeal against sentence is dismissed.