SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  I agree with the reasons of Muir JA and the orders he proposes.

[2] MUIR JA: Introduction

The applicant pleaded guilty in the Supreme Court in Townsville and was convicted on 19 February 2010 of one count of unlawfully supplying the dangerous drug methylamphetamine on 5 September 2008 (count 1) and one count of unlawfully supplying the dangerous drug methylamphetamine on 12 September 2008 (count 2).  He was sentenced to a term of imprisonment of two and a half years on each count with a parole release date of 19 December 2010.

The offending conduct

[3]  In the course of a covert police operation, a police officer (Kennedy), formed an association with a third party (Hollis).  Hollis was approached on 5 September 2008 by Kennedy with a request to purchase methylamphetamine.  Later that day, Kennedy and Hollis met the applicant at his workplace where it was agreed that the applicant would purchase an ounce of methylamphetamine and provide Kennedy with 3.5 grams.  Hollis was to receive some of the drug for introducing Kennedy to the applicant.  Kennedy gave the applicant $900.

[4]  Later that day, Hollis and Kennedy collected from the applicant a bag containing a crystalline substance.  The amount of the substance delivered by Kennedy to his controller weighed 2.630 grams and contained 0.102 grams of methylamphetamine.

[5]  On 12 September 2008, Kennedy requested that the applicant purchase one gram of methylamphetamine for him.  The applicant indicated that he did not have one gram pre-measured.  Kennedy then purchased from the applicant 1.5 grams of a substance containing 0.068 grams of methylamphetamine for $380.

[6]  The applicant applies for leave to appeal against the sentences on the grounds that they were manifestly excessive.

The applicant's circumstances and criminal history

[7]  The applicant was 31 years of age at the time of offending.  His last drug-related conviction was in December 2000 when he was convicted of possession of a dangerous drug and supply of a dangerous drug.  He was ordered to serve two years probation for the former offence and sentenced to nine months imprisonment, wholly suspended, for the supply offence.  He had been subjected to an 18 month probation order on 21 February 1995 for production and possession of a dangerous drug and for possession of a thing used in connection with the smoking of a dangerous drug.  His other drug-related conviction was in February 1999 when he was fined $1,000 for possession of a dangerous drug and possession of utensils or pipes used in connection with a dangerous drug.  The applicant's most recent court appearance was in the Townsville Magistrates Court on 17 April 2002 when he was dealt with for a breach of the probation order imposed in December 2000.

[8]  The applicant, who left school after Year 9, is a painter who, at the time of the offence, was employed as a spray painter of motor vehicles.  The offending conduct occurred after the break-up of a relationship of some years duration between the applicant and his de facto wife.  That, and "business pressures", led the applicant to engage in the offending conduct with a view to paying for drugs for his own consumption.  The applicant had a lengthy history of drug use, having first started consuming methylamphetamine when placed in foster care at around the age of 15.  That came about after his father was sentenced to life imprisonment for murder and his mother commenced a relationship with another man with whom the applicant clashed.

The sentencing remarks

[9]  In his sentencing remarks, the sentencing judge stated that: the applicant had demonstrated a willingness and preparedness to supply methylamphetamine; that the supply was commercial; and that the applicant had a significant criminal history which included drug offences and was a repeat offender.

The submissions of the applicant's counsel

[10]  Counsel for the applicant submits that the learned primary judge did not properly take into account the nature of the offending conduct or place sufficient weight on the unfortunate circumstances of the applicant.  He referred to the prosecutor’s description of the supply as a "low level street offence" and to the sales being made for the purpose of feeding the applicant’s drug habit.

[11]  Counsel for the applicant placed particular reliance on R v Anable;[1] R v Duggan[2] and R v Bagnall.[3]  He sought to distinguish R v Daly,[4] R v Robinson,[5] R v Kunst[6] and R v L,[7] which had been relied on by the prosecutor.  It was submitted that a head sentence of up to three years is appropriate for a higher level of offending where the offences have been committed over a lengthy period or where the offender is on bail, parole, or the like.

Consideration

[12]  In Anable, the 38 year old applicant, with no prior criminal history, was sentenced on each of two counts of supplying methylamphetamine, to nine months imprisonment.  One count involved the actual supply of one gram of powder containing methylamphetamine to an undercover police officer for $300.  The second count was constituted by the applicant's agreement to supply the undercover police officer with more of the drug later.  The applicant was a drug addict who sold the drug to finance his addiction.  In the course of her reasons, White J, agreeing with the reasons of de Jersey CJ, observed that, "With no relevant previous convictions another Judge might have wholly suspended the sentence or, indeed, crafted some other sentence, but I cannot conclude that the sentence imposed by his Honour below constituted appellable error …".  The application was refused.

[13]  Counsel for the respondent submitted that the usefulness of Anable is eroded by the applicant in that case having no prior criminal history and by the modest quantity of drug involved.

[14]  The 29 year old applicant in Bagnall had a number of relatively minor convictions related to the production and use of cannabis.  He was sentenced to three years imprisonment suspended after nine months with an operational period of five years for the offence of trafficking in MDMA and methylamphetamine between 1 June 2004 and 9 July 2004.  Over a 39 day period, the applicant made five sales of ecstasy tablets to an undercover police officer.  On one of those occasions, methylamphetamine was also sold.

[15]  In total, 261 ecstasy tablets containing 20.921 grams of MDMA and powder containing 1.382 grams of methylamphetamine were sold for a price of $8,780, of which $540 was attributable to the methylamphetamine.  The application for leave to appeal against a sentence of three years suspended after nine months was refused.  Chesterman J remarked in his reasons, with which the other members of the Court agreed, that a term of imprisonment of three years without any recommendation for early release or suspension would not have been excessive.  Plainly the quantity of the drugs, their value and the duration of the offending in Bagnall greatly exceeded what was involved in this case.  However, any use of the sentence in Bagnall as a basis for comparison should acknowledge the observations of Chesterman J.

[16]  The applicant in Duggan was convicted in September 2004 on a plea of guilty of two counts of aggravated possession of cocaine and methylamphetamine and sentenced to two and a half years imprisonment suspended after 12 months with an operational period of three years.  He was also convicted on a plea of guilty to one count of possession of MDMA, cannabis and ketamine, and sentenced to 12 months imprisonment suspended after four months with an operational period of 18 months.  The 5.157 grams of cocaine contained in 10.625 grams of powder, 1.3 grams of cannabis, 0.047 grams of MDMA and 2.087 grams of methylamphetamine contained in 2.664 grams of powder, together with traces of ketamine, were found at the applicant's house.  The sentencing judge found that the drugs were not wholly for the applicant's own use but declined to make a finding that he had them for a commercial purpose.

[17]  The applicant was aged 50.  He had been sentenced in 1995 to four years imprisonment for drug offences.  The applicant's sentence of two and a half years imprisonment suspended after 12 months with an operational period of three years was held not to be manifestly excessive.  The sentencing judge commented on the applicant's determined efforts to advance his business in the building industry and on his "significant efforts at rehabilitation".

[18]  The quantities of drug involved in Duggan were substantially greater than the subject quantities but the offender was not convicted of supplying drugs and the issue on appeal was only whether the sentence was manifestly excessive.

[19]  In R v Daly,[8] upon which counsel for the respondent placed considerable reliance, the 23 year old offender with a substantial criminal history of drug possession, had also served a term of imprisonment for supplying dangerous drugs.  After a timely guilty plea, he was sentenced on 11 June 2004 to concurrent three year terms of imprisonment for offences of possessing methylamphetamine and for supplying methylamphetamine.  One of the sentences was accompanied by a recommendation for post-prison community-based release after 12 months had been served; the other was ordered to be suspended after 12 months with an operational period of three years.  Three hundred and forty-seven days of pre-sentence custody was declared time already served under these and other lesser sentences.

[20]  Police officers found in the offender’s possession, 14 clip sealed plastic bags of powder, 72.7 per cent of which consisted of 2.26 grams of pure methylamphetamine.  Thirteen of the bags contained between 0.14 and 0.18 of a gram of methylamphetamine and one contained nearly one gram.  The applicant told police that the methylamphetamine was mainly for his personal use but that he had sold a bag of it for $50 within the previous week.  He admitted to supplying marijuana.  The application for leave to appeal was brought because the applicant had not received a hearing date for his application for release on parole, even though it was lodged on about 16 June 2004.  The hearing date of the application for leave to appeal was 3 September 2004.

[21]  It was found that the sentencing judge had proceeded on an incorrect assumption about the date on which the applicant was likely to be released from custody and that accordingly, the exercise of the sentencing discretion had miscarried.  It was ordered that a sentence of three years imprisonment, suspended forthwith, with an operational period of three years, be substituted for the three year sentence with a recommendation for post-prison community-based release after 12 months.

[22]  The applicant in Daly was a much younger man than this applicant and the quantities of drug supplied, it may be inferred, were lower.  However, the quantity of the drug found in the offender’s possession was more than twenty times that supplied by this applicant and it was an obvious inference to be drawn from the packaging of the drugs that they, or some of them, were held for the purposes of supply.  The high purity of the materials was also suggestive of a much more commercial operation than that engaged in by the applicant.  It therefore seems to me that Daly does not support the subject sentence.

[23]  The respondent's counsel relied also on R v Neave.[9]  In that case the 43 year old offender with a lengthy and substantial criminal history supplied a total quantity of pure methylamphetamine of 0.219 grams to undercover police operatives on six occasions.  The applicant was described in the reasons of Davies JA as being "at the bottom end of the chain of supply to persons in the community who wanted to buy amphetamine".  The sentence of two years and nine months imprisonment with a recommendation after two years, which Davies JA described as "a high one", was not disturbed on appeal.  The brief reasons in Neave make it difficult to gain a full understanding of the relevant circumstances but it seems likely that the offender’s criminal history played a significant role in the sentence imposed.

[24]  The respondent's counsel also placed reliance on observations of McMeekin J (McMurdo P and Fraser JA agreeing) in R v Robinson:[10]

"It appears that a sentence of three years imprisonment has been accepted as appropriate where the offence is the supply of a schedule 1 drug particularly where there are other drug offences.  Daly and Kunst are consistent with that.  The sentence of three years imprisonment that his Honour imposed on count 9, the first count of supplying methylamphetamine, reflects that approach."

[25]  In Robinson, the offending conduct occurred over a period of about seven months and took place whilst the applicant was on bail, probation and under a suspended sentence.  He also had a criminal history involving drug offences.  Counsel for the applicant argued that the primary judge had misconstrued the words "other drug offences" in the above quotation as referring to a prior criminal history rather than to other drug offences for which the offender was being sentenced.  It is unnecessary to pursue the question of construction.  McMeekin J's observation was a general one only and was of some relevance to the exercise of the sentencing discretion as something which the sentencing judge was entitled to take into account.  The sentencing judge did not refer to the passage or even to R v Robinson in his sentencing remarks.  Robinson, L and Kunst were cases involving a much higher level of offending than that of the applicant.

Conclusion

[26]  The above review of the authorities and, in particular, R v Anable, supports the applicant’s contention that the sentences were manifestly excessive.  Each offence was a "low level street offence" involving powder of low purity.  The applicant had to procure the drug on each occasion in order to supply it.  His supply was for the purposes of feeding his drug habit and, as the applicant’s counsel pointed out, the applicant’s last conviction for possession of dangerous drugs was in the Magistrates Court in 2000.  Accordingly, I would allow the application for leave to appeal, allow the appeal, set aside the sentences imposed at first instance and substitute for each a sentence of 18 months imprisonment with a parole release date fixed at 19 August 2010.

[27]  McMEEKIN J:  I agree with the reasons of Muir JA and the orders he proposes.