SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  I have had the advantage of reading the reasons for judgment prepared by Mackenzie AJA.  I agree with those reasons and the order proposed by his Honour.

[2]  MACKENZIE AJA:  The applicant was convicted on his plea of guilty of an offence of carrying on the business of trafficking in methylamphetamine.  The period alleged in the indictment is about seven and a half months, but in submissions it was said to be actually about six months.  He was sentenced to seven years imprisonment with parole eligibility after three years and three months. 

[3] The appeal is confined to the argument that the applicant has a justifiable sense of grievance when his sentence is compared to those of his co-offenders.  It is submitted that a sentence of six years imprisonment should have been imposed.  To reflect the plea of guilty, although admittedly very late, it would be within the court’s discretion to make a recommendation for parole after two and a half years.  Having regard to the nature of the issue in this application, it is necessary to set out in detail the facts relating to the applicant’s case and the basis upon which his co-offenders were sentenced. 

[4] The basis upon which the applicant was sentenced was that he used what purported to be a legitimate business as a front for his drug trafficking activities.  He was identified during a covert police operation as the operator of a network for the production and trafficking of methylamphetamine.  Electronic and physical surveillance was put in place and this confirmed that he was involved in those activities.  The business, which operated at wholesale and retail levels, was a substantial and profitable one, generating about $157,000 in unexplained income over the period of the trafficking.  The learned sentencing judge said that the operation encompassed sourcing precursor chemicals in Queensland and interstate, and manufacturing, selling, and supplying methylamphetamine.  The applicant and his de facto wife at the time, Melanie Feehan, were responsible for the sales and distribution of the drug.  A co-accused Anthony Bush was predominantly responsible for the physical process of manufacturing the drug and sourcing the chemicals to be used.  Bush was sentenced to five years imprisonment with a parole eligibility date of two years. 

[5] Feehan was separately sentenced by another judge of the Trial Division.  Her sentence proceeded on the basis that she was a willing participant but not the major offender, and that she had been subjected to physical and emotional abuse by the applicant.  While she managed distribution to customers and a limited number of sales, she essentially acted subject to the applicant’s direction.  She had pleaded guilty in a timely way.  She had a criminal history limited to offences of receiving and fraud in 1995, for which she received a community service order in the Magistrates Court.  Her period of offending was shorter than the applicant’s.  There was substantial evidence of rehabilitation in the four years between cessation of her offending and being sentenced.  She was sentenced to four years imprisonment, suspended after 15 months for five years. 

[6] Leaving aside issues concerning the relative roles in the trafficking and the nature of the personal relationship between the applicant and Feehan for later consideration, it may be conveniently mentioned at this point that the applicant’s antecedents were not as favourable as Feehan’s.  He had been sentenced in 1992 to imprisonment for one year for multiple charges of possession of motor vehicles with intent to deprive and to imprisonment for four and half years in 1996 for multiple similar offences and for false pretences.  He was then fined in 1998 for possessing tainted property. 

[7] His plea of guilty was a very late plea.  His trial, jointly with Bush, was set down to commence in mid-March 2008.  Bush indicated a week before the trial that he intended to plead guilty.  The applicant’s trial started on 18 March 2008 but the jury was discharged on 20 March 2008.  It restarted with a new jury five days later but once again, at the commencement of the second day, the jury had to be discharged.  Later that day he pleaded guilty.  Because of this course of events, the learned sentencing judge had the advantage, in assessing the nature of the business, of hearing surveillance tapes.

[8] The focus of the applicant’s submissions in the present application is that he has a justifiable sense of grievance when his sentence is compared with the sentences of the co-offenders.  It is submitted that a sentence of six years imprisonment should have been imposed.  To reflect the plea of guilty, although very late, it would be within the court’s discretion to make a recommendation for parole after two and a half years. 

[9] The possibility of the applicant feeling aggrieved if he received a significantly heavier sentence than Feehan was raised by his counsel at sentence (who was not counsel who appears here).  Feehan came to be sentenced separately from the applicant after there had been negotiations between her legal representatives and the Crown, and agreement reached as to the basis of the case against her.  Because of the applicant’s wish to go to trial, there was uncertainty about when she would otherwise be sentenced and that was a factor in her being sentenced separately.  The basis upon which she was sentenced had already been summarised.

[10] The applicant’s position, as put by counsel at sentence, was that he apprehended that there would be a significant disparity between his sentence and Feehan’s, due to her sentence being imposed on a version of the facts that he did not accept and which he had not had the opportunity to challenge.  In particular, he did not accept that she had been overborne in the way that she alleged and upon which she had been sentenced.  That had led to a perception on his part that he was being singled out for more severe punishment than she was.  That, in turn, had contributed to a failure to rationally appreciate the strength of the prosecution case and his consequent failure to take advantage of the benefit of pleading guilty in a timely way. 

[11] The learned sentencing judge was urged to sentence within the range from five years, suspended after two to two and a half years, up to six years without any recommendation for parole.  The reason for asking for a suspension if the sentence did not exceed five years and for not making a parole recommendation if it exceeded  five years was that there was a concern that, with the applicant’s criminal history, the Parole Board might not grant him parole at the recommended time, or at all.  If a sentence of more than five years was imposed, the plea of guilty ought to be recognised by a reduction of the head sentence.  It was accepted that, on the facts upon which Feehan was sentenced, the sentence was entirely appropriate and that, but for the parity issue, a sentence within the range suggested by the Crown Prosecutor of seven to nine years for the applicant would have been appropriate.

[12] In dealing with this submission, the learned sentencing judge referred to acceptance by the Crown and the defence that appropriate comparable sentences were R v Zeremes & Zeremes [2003] QCA 255, R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, R v Elizalde [2006] QCA 330 and R v Kashton [2005] QCA 70.  It was also said by her that the applicant’s sentence was affected by the question of parity with Feehan and the others sentenced in connection with related offences.  She said she was taking into account those sentences and all things that ameliorated or exacerbated the offending.  She referred to a passage from the judgment of Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606 at 609, concerning the factors and tensions involved in sentencing the parties for commission of the same offence. 

[13] Reflecting what Gibbs CJ said, the learned sentencing judge said it was clear, in the present case, that while there were similarities in the offending, the circumstances were quite different in the case of each offender.  She noted that Feehan had no relevant criminal background and was not the major offender.  Although she was a willing participant, she did not bear the same level of criminal responsibility as the applicant.  She made a positive finding that she was not a major offender and that the applicant was.  She referred to the fact that Feehan had been sentenced on the basis of physical and emotional abuse by the applicant and was suffering on a continuing basis from it.  However, she expressly said that she was not sentencing the applicant on the basis that Feehan was anything other than a willing participant.  Nor was she sentencing him on the basis that he committed domestic violence against her.  Earlier in her reasons, she had described the relationship as “troubled” and, on the basis of the history recorded in a psychologist’s report, that there were frequent arguments and tensions, for reasons she referred to.  She concluded by saying that the sentence she would impose was at the bottom end of what would be an appropriate sentence for the applicant’s offending because of the impact of parity on the sentence.

[14] She also addressed the issue of relativity between the sentences on the applicant and Bush, saying that the applicant was a much more serious offender than him.  She imposed a head sentence of seven years on the applicant and five years on Bush; the two year differential reflected her conclusion that the Crown’s submission, which implied the differential of only one year between them, did not sufficiently recognise the differences in criminality between them.

[15] It was conceded that, but for the parity question, the sentence was within proper limits.  There is nothing to suggest that there is an unjustifiable lack of parity between the applicant’s sentence and Bush’s.  The reasoning of the learned sentencing judge does not disclose any error in her approach to the question.  I am not persuaded that there is a disparity between those sentences leading to a legitimate sense of grievance which this Court must redress.

[16] With regard to Feehan, her criminality was less than the applicant’s.  Her role in the business was subordinate to his.  Her period of trafficking was significantly less than his.  Her criminal history was minor compared with his.  There was, in her case, evidence that in the quite lengthy period between the offending and sentence, she had achieved considerable rehabilitation.  In addition to these matters which might properly tend to reduce her head sentence, she had pleaded guilty in a timely way, which could found a claim to greater reduction of the proportion of the sentence to be spent in actual custody than would be available to the applicant, whose plea of guilty was belated.

[17] Feehan was sentenced on a different view of the nature of the relationship between them from that upon which the applicant was sentenced.  Whether it is treated as an assessment of the “instinctive synthesis” that the sentence is (Markarian v The Queen (2005) 228 CLR 357), or an attempt to assess the influence of the different views of the facts upon which the applicant and Feehan were sentenced, it is difficult to quantify how much further benefit Feehan got by reason of that factor.  As can be seen, there were other substantial factors tending to reduce her sentence as well.  The benefit the applicant got as a result of not being sentenced on the basis that the relationship was as Feehan alleged was that he was sentenced at the bottom of the range objectively appropriate for his behaviour.  Weighing up all the factors, I am not persuaded that the likely variance in the sentences attributable to the differences in treatment of the personal relationship issue is such that the sentence imposed on the applicant is manifestly excessive or so out of parity with Feehan’s that it requires the intervention of this Court. 

[18] I would refuse the application for leave to appeal against sentence.

[19] PHILIPPIDES J: I agree with the reasons for judgment of Mackenzie AJA and with the proposed order.