R v Saunders[2007] QCA 93

SUPREME COURT OF QUEENSLAND

[1]  WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Muir J and I agree with what he has said therein.  The orders should be as he proposes.

[2]  KEANE JA: I agree with the reasons of Muir J and with the orders proposed by his Honour.

[3]  MUIR J: The applicant pleaded guilty in the Supreme Court to the following offences:

Count 1: Trafficking in 3,4-methylenedioxymethamphetamine (“MDMA”) and methylamphetamine between 8 October 2003 and 31 March 2004;

Count 2:Unlawful production of cannabis in a quantity exceeding 500 grams between 1 September 2003 and 28 October 2003;

Count 3:Possession of things used in connection with production of cannabis

Count 4 and 8: Unlawful supply of cannabis on various dates;

Counts 5, 6, 7 and 10: Unlawful supply of cocaine on various dates;

Count 9: Unlawful supply of gamma hydroxybutyric acid on a date between 11 December 2003 and 13 December 2003; and

Count 11: Unlawful possession of cocaine on 20 February 2004.

[4] The sentences imposed on 5 December 2006 for the offences were:

Count 1: Eight years imprisonment with a serious violent offence declaration.  The parole release date was the date on which 80 per cent of the term of imprisonment had been served;

Counts 2 and 3: Two years imprisonment;

Count 4: Six months imprisonment;

Counts 5, 6, 7 and 8: Two years imprisonment with a parole release date after 18 months;

Count 9: 12 months imprisonment;

Count 10: Two years imprisonment; and

Count 11: Three years imprisonment.

The terms of imprisonment were ordered to be served concurrently with each other, with other terms of imprisonment being served by the applicant at the date of sentencing and with the balance of the term of an activated suspended sentence.

[5] The applicant applies for leave to appeal against sentence on grounds that: the sentence imposed for count 1 was manifestly excessive; the sentencing judge erred in failing to properly take into account the principle of parity of sentencing; the serious violence offence declaration resulted in a miscarriage in the exercise of discretion; and a declaration of pre-sentence custody should have been made.

The applicant’s antecedents

[6] The applicant, born on 5 April 1966, had carried on business as a tow truck operator.  He had a number of convictions in Victoria between 1982 and 1994 for offences including theft, theft of a motor vehicle and burglary.

[7] On 27 July 2001 he pleaded guilty in the Supreme Court of Queensland to a charge of possession of cannabis in a quantity exceeding 500 grams and was sentenced to 15 months imprisonment, suspended after four months with an operational period of two years.  On 21 August 2006 he was sentenced in the District Court at Southport to three years and four months imprisonment on counts of assault occasioning bodily harm and robbery with actual violence in May 2002.

[8] There was also a conviction on 17 November 2006 of conspiring to import pseudoephedrine which attracted a sentence of four years and six months imprisonment, to be served concurrently with existing terms of imprisonment.  His parole eligibility date was set at 17 August 2009.

The subject offences

[9] Between 8 October 2003 and 31 March 2004 the applicant purchased and resold MDMA and methylamphetamine for an undisclosed profit.  During that period police investigations established that the applicant participated in various sales of MDMA tablets in batches ranging from 10 to 1500.

[10]  A bag in the possession of the applicant obtained by police on 20 February 2004 consequent upon the execution of a search warrant was found to contain 101.382 grams of methylamphetamine, 2,361.5 grams of MDMA and 17.705 grams of cocaine.

[11]  On 30 March 2004 the police, executing a search warrant at the house in which the applicant resided, found 139 MDMA tablets containing 12.762 grams of MDMA, a number of mobile phones and a set of scales.  Telephone intercepts recorded a telephone conversations by the applicant in which he revealed that he had sourced 9,000 MDMA tablets valued at about $180,000 for resale.

The sentences imposed

[12]  The learned sentencing judge observed that having regard to the overall criminality of the applicant’s activities and the large numbers and high value of the drugs involved in the various counts, a head sentence of at least 10 years could be supported.  The applicant was actively involved in the supply of drugs, particularly MDMA and cocaine and his Honour’s conclusion is amply supported by authorities such as R v Raciti[1], R v Bradforth[2] and R v Rizk[3].  Moreover, the applicant had a criminal history which included a conviction for a substantial drug-related offence committed prior to the subject offending conduct.

[13]  His Honour had regard to the fact that the applicant had breached the terms of the suspended sentence imposed on 27 July 2001.  That sentence was activated wholly and made concurrent with the other sentences imposed.  His Honour also took into account the applicant’s plea of guilty, which had been entered just prior to the commencement of his trial, his attempts at rehabilitation in prison and the difficulties he had experienced in prison.

The application of the parity principle

[14]  With regard to the parity principle the sentencing judge took into account sentences imposed on co-offenders, Sparrow and James.  He noted that Sparrow, who pleaded guilty to trafficking in cocaine, cannabis, ecstasy and possession of ecstasy and cannabis, was sentenced on the basis that he was the applicant’s agent and under his influence.  Sparrow, who was in his early 20s and had no previous convictions, was sentenced to eight years imprisonment with a recommendation for parole after two years.

[15]  James was found guilty after a trial of one count of trafficking and one count of supply of MDMA and sentenced to a term of seven years imprisonment for count 1.  James’s dealings were between 24 January 2004 and 3 March 2004 and concerned the supply of about 25,000 tablets.  In the learned sentencing judge’s view, James was something of an aider and abetter of the applicant’s activities.  He was 53 years old at the time of sentencing and had no relevant criminal history.

[16]  The nature and extent of James’s dealings were thus considerably less than those of the applicant and his role in the supply network was subsidiary to that of the applicant.  Consequently the parity principle was not offended.

Recognition for time spent in pre-sentence custody

[17]  The ground of appeal that the sentencing judge erred in not declaring the time spent in pre-sentence custody time spent in serving the applicant’s sentence lacks substance.

[18]  The applicant was never held in custody only in respect of the subject offences.  Section 159A of the Penalties and Sentences Act 1992 (Qld) thus did not apply and that was conceded by the applicant.  It was argued however that the sentencing judge did not take such time spent sufficiently into account.  Examination of the practical consequences of the sentence imposed shows the submission to be unfounded.  After the conclusion of the term of the sentence of four years and six months imposed on 17 November 2006, only about three years and seven months of the eight year sentence would remain to be served.

The serious violent offence declaration

[19]  The way in which the sentencing judge came to make the declaration under s 161B(3) of the Act was as follows.  The applicant was serving the sentences referred to earlier and had a parole eligibility date of 17 August 2009.  The Crown Prosecutor submitted that the suspended sentence should be activated and served cumulatively with the existing sentences and with a term of six years for count 1.  It was submitted that a parole eligibility date of 17 July 2013, a date three years after the six year sentence commenced to run, was appropriate.  The applicant’s counsel submitted that the sentence should be eight years and that all sentences should be served concurrently with eligibility for parole being set after three years.

[20]  His Honour regarded the sentencing scheme advanced by the Crown as “somewhat complex” and explained his thought processes as follows:

“Since I am satisfied that a notional starting point for the sentence is 10 years or perhaps slightly more for the criminality involved in this matter, which would carry an automatic serious violent offender declaration, it is an easier solution to impose an actual head sentence that is less than 10 years but with a serious violent offender declaration which is discretionary in that instance, to take into account the totality principle, the fact that you have spent time in custody that cannot be formally taken into account, the plea of guilty and other matters in your favour… and the fact that you have committed a breach of suspended sentence.”

[21]  His Honour’s process of reasoning is consistent, in a general way, with the approach to sentencing articulated in Markarian v The Queen[4], which requires a sentencing court to take into account all relevant considerations as part of an integrated process directed to the determination of a just sentence.  See also the discussion in R v McDougall & Collas[5].  But a court exercising the discretion under s 161B(3) of the Penalties and Sentences Act must consider whether the circumstances of the offence are such that the making of a declaration in respect of it is warranted and give reasons in that regard.[6]  The sentencing judge did not approach the exercise of his discretion in this way.  Once he concluded that the head sentence should be less than 10 years it followed that any sentence to be imposed would not attract an automatic declaration.  A discretion under s 161B(3) thus had to be exercised upon due consideration of all material facts.  His Honour did not appear to consider whether the relevant facts merited the making of the declaration.  Rather, he applied s 161B(3) in order to achieve the term and parole release date which he regarded as appropriate.

[22]  For these reasons, the sentencing discretion miscarried and it is necessary for this Court to re-exercise it.  I would not make a declaration under s 161B(3).  Although the nature and extent of the applicant’s offending is grave and merits condign punishment, there is little about the circumstances surrounding the offences which distinguish them from those involved in many other case of this type.  In this regard it is relevant that the trafficking offence is in respect of a schedule 2 drug.

[23]  I would reimpose an eight year term of imprisonment to be served concurrently with the other terms of imprisonment imposed by the sentencing judge and with the terms of imprisonment being served for other offences.  The respondent has not appealed against sentence and a higher sentence is thus inappropriate.  Any lesser sentence would not recognise the overall criminality of the offending conduct and would not take into account the consequences of its concurrent nature.

[24]  For the same reasons, the parole release date should not be earlier in any material respect than that fixed by the sentencing judge.  Of particular relevance in that regard is the fact that the applicant’s parole eligibility date under the sentence imposed on 17 November 2006 is 17 August 2009.

[25]  I would: allow the application and the appeal in respect of count 1; set aside the declaration and sentence in respect of count 1; reimpose a term of imprisonment of eight years to be served concurrently with all other sentences being served by the applicant and fix a parole eligibility date of 25 March 2013.