R v Tez[2007] QCA 227

SUPREME COURT OF QUEENSLAND

MULLINS J:  The applicant pleaded guilty and was sentenced on 20 March 2007 to trafficking in the dangerous drug cannabis sativa between 24 January and 24 March 2006, possessing the dangerous drug cannabis sativa on 23 March 2006 and possessing $280 obtained from trafficking in a dangerous drug knowing it to have been obtained from the trafficking.

A sentence of three and a half years' imprisonment was imposed for the trafficking and lesser concurrent sentences for the other offences.  The date on which the applicant will be eligible for parole was fixed at 19 August 2008 after serving 17 months.

The applicant applies for leave to appeal against sentence on the basis that the sentence is manifestly excessive and that the learned sentencing Judge failed to give sufficient weight to the matters of mitigation.

The applicant was 25 years old when he committed the offences.  He had a significant and relevant prior criminal history.  After being dealt with for offending during 1997 and 1998 on several occasions whilst under 18 years of age, he was sentenced to four months' imprisonment in June 1999 for a break and enter.  He was dealt with in the Parramatta Drug Court in late 1999 and participated in a Drug Court program.  He was dealt with by the Drug Court for 17 offences including breaking and entering and dishonesty offences in March 2000, for which he was sentenced to a minimum term of two months that had commenced on 7 January 2000 and an additional term of five months.

In April 2000, he was sentenced to 12 months' imprisonment commencing on 18 March 2000 for stealing.  He was given a non probation period of nine months.

He was dealt with in January 2001 for larceny and possess housebreaking implements and sentenced to three months' imprisonment.  He was fined for summary offences in July and September 2001. 

In November 2001 he was dealt with for possessing dangerous drugs and dishonesty offences and he was fined.  He had committed other drug offences and dishonesty offences in November 2001, for which he was sentenced in January 2002 to six months' imprisonment commencing 25 December 2001. 

In May 2003 he was convicted of drug, assault and dishonesty offences and sentenced to 12 months' imprisonment in respect of which a non parole period of three months seven days was fixed, which commenced on 20 February 2003.  In November 2003 he was dealt with for a number of dishonesty offences and sentenced to six months' imprisonment that commenced on 16 June 2003. 

In the Sydney District Court on 21 September 2004, he was sentenced for assault occasioning bodily harm in the company of others to imprisonment for two years four months, commencing on 11 October 2003 with a non parole period of one year.

He was given a concurrent sentence on 1 October 2004 of six months, commencing 21 May 2004 in respect of dishonesty offences.

In January 2005, a conviction for being armed with intent to commit an indictable offence committed on 21 May 2004 was confirmed and the sentence that was imposed for this offence was imprisonment of eight months commencing on 21 May 2004.

The applicant's New South Wales criminal history finishes in July 2005, which preceded his relocation to Queensland.  

In the light of this criminal history, the respondent's description of the applicant as “a hopeless recidivist for whom Drug Court interventions have failed” is apt.

The police had received information as to various “comings and goings” at the applicant's address that resulted in the execution of a search warrant on 23 March 2006.  Cannabis sativa packaged in quantities of 27.4 grams and 27.5 grams was located together with small clipseal bags, razor blades, and a set of digital scales.  Smaller amounts of cannabis totalling 6.1 grams were also located at the residence. The applicant participated in a record of interview and made admissions that he was trafficking in cannabis sativa.  He admitted to having a habit that he would buy three ounces of cannabis at a time for around $700 to $750 and he would on sell the cannabis in varying amounts.  His sales ranged from 20 deals per week up to 50 deals per week.  The deals were predominantly in the order of one to one and a half grams at $25 each deal.  On occasions he would sell larger amounts up to seven grams. 

Based on the applicant's admissions, it was estimated that the applicant had a turnover of around $500 per week up to $1000 to $1200 in a good week.  The applicant told police that he sold to some 10 to 15 people on a regular basis.  The applicant informed the police that he began buying cannabis sativa in bulk to reduce the cost for his own habit and then started selling cannabis sativa to others in order to fund his own habit.  In addition, he used the funds he made to pay his debts and meet living expenses.

After being charged with the subject offences, the applicant was released on bail.  He was then charged with another set of drug offences on 21 July 2006, possessing dangerous drugs and possessing utensils or pipes, for which he was dealt with in the Magistrates Court on 22 July 2006.  He was fined $300 on that occasion.

His lawyers had made a request for an ex officio indictment but the applicant failed to appear on a mention date in the Magistrates Court for the subject offences on 14 August 2006.  A warrant issued for his arrest.  When he was before the Magistrates Court on 16 October 2006, the matter proceeded by way of hand-up committal.  An indictment was presented in this Court on 15 December 2006.

The applicant's lawyers were endeavouring to negotiate with the Crown in order to moderate the charges but was unsuccessful and on 23 February 2007, the matter was set down for sentence.

The sentencing Judge was informed that the applicant had been on the methadone program since approximately 2003/2004.  A letter was tendered from Queensland Health that confirmed that the applicant had attended Biala Drug and Alcohol Acute Care Service on 21 September and 12, 13 and 14 October 2006.  A further letter dated 16 March 2007 from the Clinical Director of Biala confirmed that the applicant had attended on 6 March 2007 and most days since then “in an effort to get in control of his substance use disorder”.

The sentencing Judge described the applicant as “a low level trafficker” and after referring to the extensive criminal history, described the applicant as “a persistent criminal offender”.  The sentencing Judge referred to the applicant's cannabis sativa habit and sporadic attendance on the methadone program.  The sentencing Judge acknowledged that the sentence should be mitigated for the admissions made to the police when interviewed and the plea of guilty which the sentencing Judge described as “not a last minute plea”, but that “it was not an early one”.

The sentencing Judge expressly referred to the mitigating circumstances being diminished by the commission of the further offences whilst on bail. 

It is acknowledged on behalf of the applicant that the range of sentence for trafficking in cannabis sativa at the lower level is between two to four years:  R v. Guzan [2005] QCA 158.

The applicant submits, however, that his conduct is comparable to that in R v. Gault [2006] QCA 316 in which a 49 year old offender with no relevant criminal history who had trafficked in cannabis sativa at the lower level for six months in order to generate funds for his medical expenses was sentenced to two and a half years' imprisonment suspended after six months. That was also a case where the offender would not have been prosecuted successfully for trafficking but for his admissions.  The sentence was not disturbed on appeal.

The circumstances of the applicant are clearly distinguishable from the offender in Gault.  Although the applicant is considerably younger than the offender in Gault, the applicant's criminal history is so serious and relevant that a sentence at the higher end of the range was justified.

On the basis that the head sentence is not able to be successfully challenged, the applicant also argues that insufficient weight was given to the matters in mitigation.

The sentencing Judge recognised that there were matters for which allowance should be made in the applicant's favour, but balanced those against the related matters of further drug offending whilst on bail and failing to appear whilst on bail.

Viewed in the context of the applicant's criminal history, those related matters suggested  that the applicant's prospects of rehabilitation were poor.  Although it is common for a guilty plea and cooperation with the administration of justice to result in an eligibility for parole date being fixed after about one-third of the head sentence has been served, it is not an invariable approach.  The sentencing Judge has given the applicant an earlier date for eligibility for parole than would follow from the statutory eligibility date. 

In these circumstances where the sentencing Judge has balanced competing factors, it cannot be concluded that the sentencing Judge has failed to give sufficient weight to the matters of mitigation.

The application should be dismissed.

THE CHIEF JUSTICE:  I agree.

JERRARD JA:  I agree.

THE CHIEF JUSTICE:  The application is refused.