R v Eaton[2007] QCA 43

SUPREME COURT OF QUEENSLAND

[1]  MCMURDO P:  The application for leave to appeal against sentence should be dismissed for the reasons given by Williams JA.

[2]  WILLIAMS JA:  On 31 October 2006 the applicant was sentenced to two and a half years imprisonment with a parole date fixed as 30 June 2007; that meant she would spend eight months in actual custody.  That was the sentence imposed after the applicant pleaded guilty to two counts of supplying a dangerous drug, namely 3,4-Methylendixoymethamphetamine.  She seeks leave to appeal against the sentence on the ground that it was manifestly excessive.

[3] The offence was committed on 8 December 2005 during the course of a covert police operation designed to expose drug trafficking in the Toowoomba region.  On that date the covert operative made an arrangement with a man named Armstrong to buy 200 ecstasy tablets for $23.00 each.  Armstrong stated that he was using a female dealer to meet the order.  Subsequently a man using the name "Olf" came to the covert police officer and told him that the supplier would be arriving in 15 minutes.  The inference was that Olf was checking out the purchaser before the supplier arrived.  Shortly afterwards Olf returned with the applicant.  The policeman got into the applicant's vehicle and there was some discussion which seemed to indicate that the applicant understood the risk of dealing in drugs.  Eventually the applicant handed over to the policeman a heat-sealed bag containing pink tablets.  In turn the officer gave Olf $4,600.00, and he in turn handed that money to the applicant.  Immediately the applicant started to count the money; the car was moving and she had Olf hold the wheel whilst she attempted to do so.  Then she stopped the vehicle and counted the money whilst pretending to speak on a mobile phone.  The policeman was then let out of the vehicle.  On counting the tablets the police officer discovered that he had only been supplied with 100 instead of 200.  In consequence Armstrong contacted Olf to ask for half the money to be returned; but Armstrong indicated that the applicant was getting the other 100 tablets.  Arrangements were then made to meet at the carpark at Hungry Jacks.  There the applicant handed over to the police officer another bag containing 100 tablets.

[4] On analysis it was ascertained that the total weight of the 200 tablets was 51.323 grams, and the weight of the drug 3,4-Methylendixoymethamphetamine was 15.268 grams.

[5] The applicant was not interviewed until 16 March 2006 when the covert operation was closed down.  She admitted the transaction.  She said that after receiving the request she contacted another person who told her where she could collect the pills which had been hidden in a bush.  She asserted that the agreed price was $19.00 a pill. She said she hid the money in the same location where the pills had been collected.  She denied making any money from the transaction and said she could not recall receiving the $4,600.00.  She claimed that she was only supplying the drugs as a friend for a favour. 

[6] Her counsel in his submissions on sentence drew the court's attention to a passage in her interview where she said she was not "exactly sure who left them for me", but named one CD as the person who told her where the pills could be found.  The material does not disclose the results of any police investigation, if any was carried out, in relation to the person CD.

[7] It seems the applicant may have been contacted by Armstrong on more than one occasion in order to arrange the deal in question.  Her counsel said to the sentencing judge that whilst it would be too strong a word to say she was "pressured", she was "put in a position where there were persistent calls to her to come through with this drug." 

[8] During an exchange with the sentencing judge her counsel agreed that she was one step up from a street dealer.

[9] The applicant was born on 12 August 1982 making her 23 years old at the time of the offences and 24 when sentenced.  On 6 June 2005 she was dealt with in the Toowoomba Magistrates Court for possession of dangerous drugs on 9 May 2005.  No conviction was recorded but she was fined $1,040.00.  Shortly after the offence now under consideration, namely on 17 December 2005, she committed offences of entering a dwelling and committing an indictable offence, common assault, wilful damage and stealing.  Those matters, together with an offence of breach of a bail undertaking, were dealt with in the Toowoomba Magistrates Court on 7 March 2006.  Again no conviction was recorded and she was placed on probation for 12 months.  That means she was on probation for some six months before being sentenced for the offences in question, but no probation report was before the court.  From statements made in the course of the hearing in this Court it would appear that she had not attended on her probation officer regularly as required because of transport difficulties.

[10] Before the sentencing judge her counsel stated that she had commenced using Methylamphetamine when about aged 17.  It was asserted that by the time of standing for sentence she had stopped using hard drugs.  She is being treated for depression and anxiety.  At the time the offences in question were committed she was living in a de facto relationship and was the mother of two young children.  According to her, her partner was also a drug user and was also implicated, although not charged, in the offence committed in May 2005.  That relationship had broken down by October 2006 when the applicant was sentenced.  The offences committed in December 2005 appear to have been associated with the break down of that relationship.  After leaving school part-way through grade 12 the applicant appears to have been in reasonably regular employment up until the time of the commission of these offences.

[11] The sentencing judge referred, albeit briefly, to all relevant matters.  He noted the plea of guilty and observed that it "may be that you were not a particularly enthusiastic participant, but the fact is that you were prepared to carry out this substantial venture in respect of a drug of pernicious effect.".  He observed she was to be "commended for turning her back on personal use of Methylamphetamine."  He also noted her commitment to her children and her need to take anti-depressants and other medications.  He referred by way of comparison to sentences considered by this Court in R v de Carteret [2006] QCA 279, R v Sartori [2006] QCA 284 and R v Wynward [2004] QCA 431.  In doing so he noted that de Carteret was a "street dealer" whereas the applicant "as is rightly conceded by Mr Lynch who appeared for you, [was] one level up the chain as it were." 

[12] The applicant, who appeared on her own behalf before this Court, stressed that her name only turned up once in the entire 10 month covert operation being conducted in the Toowoomba area.  She also asserted that her partner at the time was the main user of drugs and that the conduct now in question was unusual for her; she was pressured to help out on the occasion in question and did so.  She again asserted that she did not make any profit out of the transaction, and stressed that she had not been imprisoned prior to the sentence now under consideration.  Further, she expressed concern for her two small children who were apparently being cared for by her ex-partner.  She has already spent some three months in custody and said that has been a salutary experience for her.

[13] The respondent in this Court again submitted that the applicant was more than just a street dealer; she was prepared to be involved in a serious supply of drugs.  In addition to the cases relied on by the sentencing judge the respondent also referred to R v L [2002] QCA 485.  It was submitted that the learned sentencing judge was correct in categorising this case as more serious than Sartori but less serious than de Carteret.

[14] As was referred to before the sentencing judge, and again submitted to this Court by the respondent, the supply of a commercial quantity of ecstasy is a very serious offence.  The drug in pill form is very saleable around nightclubs and to young people.  It is, as was said by the sentencing judge, a "pernicious" substance which can occasion great harm to a consumer.  Given that on the evidence the applicant only supplied the drug on effectively one occasion, the sentence imposed could be regarded as towards the top of the range, particularly given her age and lack of significant previous offending.  However, mainly because of the quantity of the drug involved, it cannot be said that the sentence imposed was manifestly excessive; it was clearly within the range set by the authorities to which reference has been made. 

[15] It follows that the applicant has not demonstrated that the sentence imposed was manifestly excessive and the application for leave to appeal should be dismissed.

[16] JERRARD JA: I agree with Williams JA.