R v Dunphy[2007] QCA 421

SUPREME COURT OF QUEENSLAND

WILLIAMS JA:  I will ask Justice McMurdo to deliver his reasons first.

McMURDO J:  On 22 March 2007, the applicant pleaded guilty to two counts of trafficking in dangerous drugs, one of stealing, two of stalking, in one case with violence, one of wilful destruction and one count of receiving stolen property with circumstances of aggravation.  He was sentenced to six years' imprisonment for the trafficking offences, six months for the stalking and wilful destruction and three months for the other offences, all to be served concurrently.  A parole eligibility date was set at 16 months from the date of the sentence, being 21 July 2008.

The applicant seeks leave to appeal against the sentences imposed for trafficking and the order for the parole eligibility date.  The sole ground is that the result is manifestly excessive.  He says that the result should have been concurrent terms of four and a half years for the trafficking with a parole eligibility date fixed at nine months, which is 22 December 2007.

The applicant was aged 21 or 22 when offending, and 24 when sentenced.  He had no criminal history.  He had an unhappy childhood.  He was diagnosed with a form of attention deficit disorder.  In 2006 he was diagnosed with depression.  He was an occasional user of ecstasy and later methamphetamine.

On 7 December 2005, police executed a search warrant and found that he was in possession of a pipe, a set of scales and a mobile phone containing drug related messaged.  The Prosecution conceded that there was insufficient evidence to prove trafficking without the information which the applicant then volunteered.

The trafficking for one count involved a period from 1 June 2004 to 8 December 2004.  The drug was ecstasy.

The second count involved a period from 1 April 2005 to 8 December 2005, in which both ecstasy and crystal methamphetamine were involved.

According to an agreed schedule of facts, his total turnover over both periods was between $113,500 and $125,500.  Again according to that schedule, at first his trafficking was profitable, but after some bad debts and thefts of cash, he fell into debt and his trafficking was directed to paying off his debts rather than motivated by greed.  He supplied at street level.  The extent of his profit is likely to have been between $10,000 and $20,000.

He was sentenced under Section 13A of the Penalties & Sentences Act.  He provided a statement to police in relation to another offender and had undertaken to give evidence according to that statement.  His information and evidence was valuable and police involved in that prosecution said that it would not have occurred without the applicant's evidence.  For this he was entitled to be described as a substantial informant and to expect a discount in the range of 20 to 50 per cent upon an otherwise appropriate sentence.  See most recently The Queen v. Ikin.

The applicant's argument places particular reliance on four decisions of this Court, being The Queen v. Coleman, The Queen v. Oldfield, The Queen v. McMahon and most recently, The Queen v. Atkins.

In Coleman, the applicant sought to appeal a sentence of four years with an eligibility for parole after two years six weeks for trafficking in methylamphetamine.  His total turnover was said to be $143,000 and the period was over four and a half months.  He was trafficking to support his own habit, but he had an extensive criminal history.  He had built up his drug business whilst on a suspended sentence, and he was in his late 40s.  There was a high level of cooperation but no Section 13A consideration.  His application for leave to appeal was refused. 

The present applicant especially relies upon this statement by Justice Keane, with whom Justice Jerrard and I agreed, that "Decisions of this Court show the trafficking in dangerous drugs to the extent engaged in by the applicant can be expected to attract a sentence of imprisonment in the range between five and seven years after a plea of guilty."  But as to that, the ultimate result here was not only a sentence of six years, but also a very early eligibility date.

In Oldfield, the applicant was aged 28 and had a relatively minor criminal history.  His trafficking involved sales to undercover police over some two and a half months but while he was on probation for other offences.  He unsuccessfully applied for leave to appeal his sentence of five years with a recommendation for parole after two years.  There was no Section 13A consideration.  But the present applicant had a much larger turnover and over a much longer period.

In McMahon, the applicant was in his late 30s when offending and 40 when sentenced and had a criminal history for drug offences.  He unsuccessfully applied to appeal his sentence for five years' imprisonment, suspended after two years with an operational period of five years for trafficking in methylamphetamine and cannabis sativa.  He was addicted to amphetamine.  For most of the period of his offending methylamphetamine was a schedule 2 drug.  His turnover could not be estimated but the trafficking occurred over 11 months.  Again there was no Section 13A cooperation and in other respects the present applicant was much more cooperative.

In The Queen v. Atkins, six years was imposed for trafficking by a 32 year old involved in trafficking over a five week period with a turnover of about $60,000.  His parole eligibility date was fixed at two years.  Leave to appeal was refused.

The applicant here specially relies upon comments made by Justice Holmes in two respects.  One of those is that it can be relevant where it is the case for an applicant to point to some positive act of desistance.  But as I see the present case, it is not one of that kind.  As I have already said, the offences of trafficking were able to be established by the information which the applicant himself provided, but this is not a case where he desisted prior to his connection with drugs being detected upon the execution of a search warrant.

The other matter commented upon by her Honour in Atkins was that it can be relevant to consider that the trafficking was at a street level, or alternatively at a wholesale level.  With respect, that is undoubtedly correct.  As I have said, the trafficking in the present case is at a street level.

A comparison of the applicant's case with only these cases, with particular regard to the Section 13A matter in his case would indicate that a sentence of six years was excessive and that the parole eligibility date of 16 months could well have been set earlier.  However, the Prosecution relies upon three other decisions, Bradforth, Taylor and Barton.

In Bradforth, the applicant trafficked in cocaine, ecstasy and methylamphetamine over a 12 month period.  He was sentenced to 12 years' imprisonment, which on appeal was reduced to 10 years with a declaration of a serious violent offence.  He was substantially motivated by greed.  He was 26 when sentenced.  He had no drug related convictions but had previous convictions for stealing, wilful damage and entering a dwelling house.  His trafficking came to an end when police found in a hotel room his bag, which contained over 1300 ecstasy tablets, 63 grams of cocaine and seven grams of methylamphetamine.  He also had five mobile phones in his possession when apprehended.  Whilst on bail for the trafficking, he was stopped by police and found to be in possession of drugs including cocaine and ecstasy as well as a set of scales.  The extent of the trafficking in Bradforth seems to have been greater than in the present case.

In Taylor, the applicant was sentenced to a total of seven years and four months for trafficking in a number of Schedule 1 drugs.  The period of trafficking was about three months.  He was 21 when offending and 23 when sentenced.  He had some criminal history, including for possession of a dangerous drug a few months prior to this matter.  He sold to undercover police who paid him a total of $38,500.  He did not challenge the head sentence.  His complaint was that none of the sentence had been suspended, nor had there been a recommendation for release on parole, notwithstanding his plea of guilty.

In addition to his supplies to the police, it was clear that he was, as Justice Jerrard described him, a "significant dealer in cocaine."  The sentencing Judge would have fixed the head sentence at eight years, but had reduced it to seven years four months to take into account a period spent in custody which could not be declared as time served.

His sentence was varied on appeal by fixing a parole eligibility date of 26 November 2008, which was two and a half years into his term of seven years four months.  His case is fairly comparable with the present, save that there was no Section 13A matter.

In Barton, the applicant was sentenced to seven years for trafficking, with a recommendation for eligibility for parole after two years and three months.  On appeal that was varied to a recommendation after serving 18 months.  She was 24 when offending and 26 at sentence and had a short criminal history.  The trafficking occurred over a two month period.  She was an addict, trafficking to feed her own habit.  Her trafficking was less extensive than in the present case, although again there was no Section 13A matter.

Overall, the head sentence here of six years, having regard to the applicant's age, lack of criminal history and Section 13A cooperation could be seen as excessive.  But the parole eligibility date was set relatively early, after 16 months.  Had the sentencing Judge fixed a head sentence of say five years an eligibility date after 16 months would still have represented a substantial discount.

Ultimately I am not persuaded that the result here was manifestly excessive.  This was, after all, a trafficking occupying two periods of, in aggregate, more than 12 months and involving substantial sums.  The very serious nature of this offending, even by such a young offender, has to be recognised in an outcome which provides a sufficient deterrence.

I would refuse the application.

WILLIAMS JA:  I agree.

MUIR J:  I agree.

WILLIAMS JA:  The order of the Court is that the application is refused.