R v Keenan[2007] QCA 411

SUPREME COURT OF QUEENSLAND

WILLIAMS JA:  The applicant, who has appeared on his own behalf, seeks leave to appeal against a sentence imposed on him after he pleaded guilty to one count of trafficking in dangerous drugs (methylamphetamine and cannabis sativa), seven counts of supplying methylamphetamine, one count of stealing and one count of fraud.

The head sentence imposed on the trafficking count was four years and 10 months' imprisonment with a parole eligibility date fixed at 1 September 2009.  That is, after serving approximately two years and two months in custody.

The applicant was born on 22 June 1970, making him 35 when the offences were committed and 37 when sentenced.  He had a lengthy criminal history.  He was fined in the Magistrates Court for possession of or producing dangerous drugs in 1988, 1990, 1995 and 1997. Then on 15 June 1998, he was convicted in the Wynnum Magistrates Court on five counts of fraud, one count of stealing and drug-related charges.

A variety of penalties were then imposed.  The penalties included community service and wholly suspended short terms of imprisonment.  He was convicted of further counts of false pretences in the District Court on 21 August 1998.

He breached the community service order and on 23 November 1998, he was re-sentenced on the original offences and then sentenced to imprisonment for eight months, suspended for a period of five years.  He was dealt with for a breach of that suspended sentence on 29 March 1999 and ordered to serve eight months' imprisonment.

Then in the District Court on 12 July 1999, he was given six months' imprisonment of charges of entering a dwelling house and fraud.  On that occasion, he was also convicted of an offence of robbery with actual violence and a further offence of attempted armed robbery.

Upon conviction for those offences, he was imprisoned for a period of four years and six months and a recommendation was made that he be considered for release on parole after serving 18 months.

It should be noted that when sentenced on that occasion, a number of other drug-related offences were also dealt with.  Subsequently, he has been dealt with in the Magistrates Court for property offences.

Of particular note is a conviction in the Holland Park Magistrates Court on 30 January 2006 when he was sentenced to six months' imprisonment on charges of possessing tainted property and unlawful possession of weapons.

Those latter offences were committed whilst on bail for the offences, the subject of this application.  It is also of significance that the applicant was on bail with respect to at least one of those earlier offences when he carried out the trafficking, the subject of this application.

In March 2004, the applicant moved into a house at Coorparoo with a person called Thompson.  The latter was the subject of a drug surveillance operation and in about August 2004, a listening device was installed in that house.  Telephone calls were also recorded.

The listening device and telephone calls intercepted constituted the evidence establishing that the applicant trafficked in methylamphetamine and supplied that drug on numerous occasions.

Essentially, the applicant assisted Thompson in making sales of methylamphetamine on the latter's behalf.  He also made some sales on his own account.  Also, the applicant sold cannabis on his own account.

The applicant was arrested on 4 February 2005.  From August 2004 to that date, the applicant had no legitimate employment.  It was unknown how much profit, if any, he made from the drug transactions.

It was submitted by the prosecution to the sentencing Judge that the applicant had been involved to a significant extent in the substantial enterprise. 

It should be mentioned briefly that the stealing charge related to the theft of a lawn mower from the applicant's landowner and the fraud charge that related to the pawning of that lawn mower.

The sentencing Judge concluded that the applicant assisted Thompson in a street level drug trafficking operation.  He noted that the applicant also conducted some business on his own behalf.

The sentencing Judge specifically referred to the plea of guilty as being a significant consideration in the applicant's favour.  He stated that he reduced the head sentence having regard to that and also took that consideration into account in determining the recommendation for parole.

The sentencing Judge could not make a declaration that the 48 days pre-sentence custody were time spent under the sentence because of the involvement of other offences, but he indicated that he took that into account in determining the head sentence and in fixing the parole date.

In his written submissions to this Court, the applicant contended that he did not profit from deliveries made on Thompson's behalf.  The principal submission addressed to this Court by the applicant was that the sentence imposed on him was manifestly excessive when compared with that imposed on Jannette Le Grice, another person charged with trafficking arising out of Thompson's activities.

Le Grice was sentenced on 18 June 2007 to three and a half years' imprisonment with a parole eligibility date of 17 October 2008.  The sentencing Judge noted that she was trafficking to feed her own addiction but she supplied at street level and had a number of personal problems which gave rise to her drug addiction.

She had a criminal history which included a conviction in 1985, selling heroin.  On conviction, she was sentenced to six months' imprisonment with three years' probation for that offence.

The criminal history of Le Grice, though concerning, was far less serious than the history of the appellant.  Her history did not contain any offences involving violence whereas the present applicant had been convicted of robbery with actual violence and sentenced to four and a half years' imprisonment for it.

Also, she was not on bail when the trafficking offence was committed.  At the time of sentence, she was undergoing a drug rehabilitation program and had references from employers and others. 

In the circumstances, I am not persuaded there was some inconsistency between the sentence imposed on Le Grice and that imposed on the applicant.

The applicant also submits that he has recently entered into a de facto relationship and that his prospects of rehabilitation are good.  Today, the applicant also submitted that the six months' period of imprisonment imposed on 30 January 2006 should be brought into account in some way when evaluating the current sentence because of the application of the totality principle.

It must be remembered, as already noted, that he was on bail for these offences when he committed those offences for which he was sentenced on 30 January 2006.

In all the circumstances, I have come to the conclusion that there is no substance in that submission and no credit should now be given for the fact that he served six months' imprisonment for those other offences.

Given that the head sentence was imposed for not insignificant trafficking in a schedule 1 drug, and given the applicant's criminal history, the sentence imposed was not manifestly excessive.

It is, in my view, supported by reference to the sentences imposed in Rizk [2004] QCA 382, Murray [2006] QCA 154 and Taylor [2005] QCA 379.  In all the circumstances, the application should be dismissed.

HOLMES JA:  I agree.

McMURDO J:  I agree.

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