SUPREME COURT OF QUEENSLAND

[1]  MUIR JA: I agree that the application should be refused for the reasons given by Fraser JA.

[2]  FRASER JA: The applicant was convicted on his pleas of guilty of one count of carrying on the business of unlawfully trafficking in the dangerous drug cannabis, five counts of unlawfully supplying that dangerous drug, one count of possession of that dangerous drug with the circumstance of aggravation that the quantity of the drug exceeded 500 grams, one count of possession of the dangerous drug 3,4‑methylenedioxymethamphetamine (MDMA), and one count of possession of things (mobile telephones) used in connection with the crime of trafficking.  On 5 April 2011, a sentence of four years imprisonment was imposed for the trafficking offence.  Lesser, concurrent terms of imprisonment were imposed for the offences of possession of cannabis and possession of MDMA, and the applicant was convicted but not further punished for the other offences.  The sentencing judge fixed a parole eligibility date of 4 August 2012, after the applicant will have served 16 months of the sentence. 

[3] The applicant has applied for leave to appeal against sentence on the ground that it is manifestly excessive. 

Circumstances of the offences

[4] On five occasions the applicant and his father sold cannabis to a covert police officer.  The total weight of the cannabis in those transactions was about nine pounds and at the business premises of the applicant and his father the police found another ten pounds ready for delivery under arrangements that had been made with the officer.  The total price paid by the covert police officer for the cannabis was $19,600, out of which the applicant made a profit of about $1,000.  The evidence revealed that the applicant and his father had other customers.  The applicant possessed white powder which included 0.76 grams of pure MDMA for his personal use.

The applicant’s personal circumstances

[5]  The applicant was 33 years old when he committed the offences and 37 years old when he was sentenced.  For most of his adult life he had worked in the family drum exchange business.  He was married but separated from his wife.  References tendered at the sentence hearing attested to the applicant’s otherwise good character and his voluntary community work, particularly in connection with a junior sporting body.  He had a criminal history which largely comprised minor offences committed many years before the offences the subject of this appeal.  The history included an offence in December 2002 of possessing property suspected of having been used in connection with the commission of a drug offence, for which the applicant was fined $200 with no conviction recorded. 

Sentencing remarks

[6] The sentencing judge noted that the applicant was not addicted to the drug in which he trafficked.  His trafficking was clearly commercial, although there was not much profit in it.  The sentencing judge had regard to the prevalence of drug offences within society and the need for the sentence to have a deterrent effect. 

[7] Her Honour considered that none of the matters in the applicant’s criminal history should be taken into account.  It was in the applicant’s favour that there was a significant period of time between the end of 2007 (when the applicant was charged and admitted to bail) and the sentence hearing in April 2011, during which the applicant had “remained out of trouble with the law”.  The delay was attributable to the ill health of the applicant’s father and the Crown’s investigation of financial matters relevant to the trafficking and supply offences.  The sentencing judge held that there was a reasonable explanation for the delay and that neither the defence nor the Crown was responsible for it. 

[8] It was also in the applicant’s favour that there was a hand-up committal and the applicant entered an early plea of guilty.  Her Honour observed that had the applicant not entered an early plea of guilty he would have been given a sentence of four and a half years imprisonment with parole eligibility after 18 months.

The applicant’s arguments

[9] The applicant argued that the sentencing judge failed to give adequate weight to the delay of about three and a half years between the offences and sentence, during which the applicant had not re-offended and had been a contributing member of the community.  The Court was referred to the statement in R v L; ex parte Attorney-General[1] that one case in which unfairness arising from delay should mitigate the sentence which otherwise should be imposed was “where the time between commission of the offence and sentence is sufficient to enable the court to see that the offender has become rehabilitated or that the rehabilitation process has made good progress.” 

[10]  The applicant also argued that the sentence was not sufficiently in parity with the sentence imposed upon Modini, a man who had introduced the covert police officer to the applicant and his father.  Modini was sentenced to three years imprisonment, with release on parole after 12 months, on one count of trafficking in the dangerous drug cannabis sativa, and he was given lesser, concurrent terms of imprisonment on seven counts of supplying the same drug.  The applicant submitted that Modini’s offending was objectively more serious because he had many other customers and had trafficked in the drug for years.  Modini also had previous convictions for offences relating to cannabis committed whilst he was subject to a suspended sentence, he committed the trafficking offence whilst subject to a suspended sentence, and he committed an offence whilst on bail.  The applicant acknowledged that Modini was not charged with possession of an aggravated amount of cannabis and that he was an addict, but emphasised that Modini had not demonstrated that he had been rehabilitated during a period of delay after he was charged. 

[11]  The applicant argued that the notional sentence of four and a half years imprisonment with parole eligibility after 18 months mentioned by the sentencing judge revealed that the sentence imposed upon the applicant made insufficient allowance for the mitigating circumstances.  Reference was also made to the sentence imposed upon the applicant’s father for the same trafficking offence of four years imprisonment suspended after three months for an operational period of four years.

[12]  The applicant argued that the appropriate head sentence was in the range of three years and six months to three years and nine months imprisonment, and that the powerful mitigating factors (the absence of a significant criminal history, the applicant’s early plea, and his “rehabilitation” over a lengthy period) should have been recognised by fixing a parole eligibility date after 12 months. 

Consideration

[13]  In light of the concession that the sentencing discretion extended to a sentence of three years and nine months imprisonment with parole eligibility after 12 months, the applicant faced a difficult task in making good the contention that the sentence imposed was manifestly excessive.  The comparable decisions cited by the respondent[2] demonstrate that the contention cannot be accepted.

[14]  It is necessary to discuss only R v Collins,[3] which the sentencing judge rightly described as “significantly close factually”.  In that case the Court refused leave to appeal against a sentence of four years imprisonment suspended after six months with an operational period of four years imposed in respect of one count of trafficking in cannabis over a three month period.  The total amount of the drug trafficked was about nine kilograms of cannabis and the total price was almost $20,000.  Collins was 57 years old when he committed the offence and 59 years old at sentence.  He had a criminal history of no real significance, he pleaded guilty to an ex officio indictment, he provided information to police in respect of other drug activities, and he was willing to testify at trial (although that became unnecessary when the other offenders pleaded guilty).  Collins was remorseful, unlikely to re-offend, and at risk of losing a business which he had built up in the three years after he was charged.  Holmes JA referred to R v Whyte[4] (in which a sentence of four years imprisonment suspended after 12 months for an operational period of five years was upheld) and R v Haygarth[5] (in which a sentence of four years imprisonment was varied by adding a recommendation for eligibility for parole after 12 months).  Her Honour held that those decisions involved less serious offending and much younger individuals with stronger mitigating circumstances, and observed that:

“One would ordinarily expect a higher head sentence to be imposed in a case of the present kind; instead, the effect of the parity consideration in the present case has been to give the applicant the benefit of the same head sentence as those offenders received, while the discount for co-operation has produced an actual custodial component half of what they were required to serve.”[6] 

[15]  The sentencing judge took into account in the applicant’s favour that he had remained out of trouble with the law during a significant period of time between the date he was charged and sentence.  A similar circumstance was taken into account in R v Collins.[7]  There is no basis for the applicant’s contention that the sentencing judge afforded insufficient weight to that circumstance. 

[16]  The explanation for the order suspending the applicant’s father’s imprisonment after three months lies in what the sentencing judge described as his “significant health problems”, a matter which her Honour thought was “[b]y far the most concerning feature” in that case.  Nor is there merit in the argument that the applicant’s sentence should have been reduced merely because Modini was given a less severe sentence.  The applicant’s offending was simply mercenary, whereas Modini was a drug addict.  Modini’s offence involved about seven or eight pounds of the drug.  In the applicant’s case the weight was similar, about nine pounds, but there was also about ten pounds awaiting sale.  Furthermore, Modini had spent 46 days in pre-sentence custody that could not be declared as time served under his sentence. 

[17]  The sentencing judge’s reference to a notional head sentence of four and a half years with parole eligibility after one third of that period had the applicant not entered an early plea of guilty was unconventional, but the sentence imposed was within the sentencing discretion.  The sentence included appropriate recognition of the circumstances favouring mitigation by the early parole eligibility date.

Proposed order

[18]  I would refuse the application.

[19]  FRYBERG J: This application should be dismissed for the reasons given by Fraser JA.