SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  This application for an extension of time to apply for leave to appeal against sentence should be refused for the reasons given by White JA.

2. WHITE JA:  Simon Robert Weekes, who appeared for himself, seeks an extension of time within which to seek leave to appeal against a sentence of five and a half years imposed on him in the Supreme Court in Cairns on 11 March 2010 for trafficking in cannabis.  He pleaded guilty on two ex officio indictments.  The first charged him with trafficking in cannabis sativa between 19 June 1999 and 30 October 2008, three counts of supply, one count of possession of cannabis, one count of possession of three watches obtained from trafficking and one count of possession of scales.  The second charged him with permitting premises to be used for the commission of the crime of possessing a dangerous drug, one count of possession of scales and one count of possession of cannabis.  He also pleaded guilty to a number of associated summary offences.  The sentencing judge made a pecuniary penalty order.  The applicant was sentenced to concurrent lesser penalties for the other offences.

3. The applications^[1] were filed in this court on 21 July 2011 making the applicant nearly 16 months out of time for his application for leave to appeal against sentence. 

4. The applicant contends that his head sentence of five and a half years is too harsh. However, in his most recent statement filed on 1 September 2011, he wrote:

“… I would suggest to the court that my charge of trafficking on a large scale over a period of 9 years is grossly unfounded and I will endeavour to produce evidence before the court to suggest that supply was the extent of my involvement.”

In his oral submissions the applicant indicated that he wanted to withdraw his guilty plea to trafficking being of the view that he was guilty only of supply.  This would entail an appeal against conviction, not merely an application for leave to appeal against the sentence imposed.

5. The applicant suggested that he was suffering from the after effects of epileptic seizures when he made statements to police in 2008 which constituted the evidence which implicated him in trafficking in cannabis over the period of nine years alleged in the indictment. The effect, he contended, was such as to make those admissions not merely unreliable, but, in fact, untrue. He has produced no medical or other evidence to support either his condition or, that either medicated or un-medicated, the consequences of a seizure would be likely to produce confusion leading to untrue statements of the kind he made to police. The applicant did say at the hearing that he had applied (or proposed applying) under the Freedom of Information legislation for his medical records.

6. The time for appealing conviction or seeking leave to appeal sentence is 28 days.  The court will be prepared to extend time but before doing so, as was said by this court in R v Tait^[2], it will examine whether there is any good reason shown to account for the delay and whether it is in the interests of justice to grant the extension.^[3] 

Explanation for delay

7. The applicant does offer several explanations for his delay in filing his application for leave to appeal against sentence:

1. He states that while he thought his sentence of five and a half years was excessive from the date of pronouncement he believed that he would get parole after 12 months.  This was not misconceived because a period of 442 days was declared as time served and the sentencing court directed that he be eligible for parole on 11 March 2011, that is, 12 months after the date that sentence was imposed.  Although the applicant filed his parole application six months before his eligibility date^[4] he has not received favourable consideration by the Parole Board because he has had difficulty in identifying a suitable residence should he be released.

2. The applicant received a letter from the solicitors who had represented him on his sentence on about 29 March 2010 (or perhaps earlier), that is, within time, advising him that the sentence imposed was “well within range” and he ought not appeal.  The applicant states that he wrote back to the solicitors to the effect that his lawyers had overlooked important matters, namely, the inaccuracy of his statement to police due to the effect of recent epileptic seizures; and that the length of time of the trafficking was less than that set out in the indictment.  He heard nothing more despite seeking assistance by telephone and by mail.  Unfortunately the applicant retained no copies of his written correspondence.

3. The applicant seems to have resigned himself to the fact that the time within which to appeal had passed until he received a letter dated 9 August 2010 from the Crown in relation to the pecuniary penalty order made on 11 March 2010 for $36,095.  He then decided to do something about the sentence.  To this end the applicant wrote to his solicitors from Lotus Glen Correctional Centre (where he was then housed) on several occasions without response.  Again, he did not keep copies of this correspondence.

4. The applicant attempted to access the Prisoners’ Legal Service on many occasions without success due, he contends, to the parlous state of the telephone system at Lotus Glen.

5. It was, he states, only when transferred to Maryborough Correctional Centre on 30 May 2011 that he was able to access the Prisoners’ Legal Service and lodge his application for an extension of time but even then not until 21 July 2011.

8. It seems that the applicant’s failure to be granted parole at the time pronounced by the sentencing judge and the proceeds of crime order have prompted this application. He was aware of his rights about appealing but allowed the date to pass. If the interests of justice dictate that an extension of time ought to be given, the delay of the extent demonstrated on this application would not be insuperable.

Prospects were an extension granted

(i)The facts

9. The sentence proceeded on two ex officio indictments in conformity with the provisions of Practice Direction No. 2 of 2000.  A draft of the intended indictments and certificates signed on behalf of the Director of Public Prosecutions and by the applicant’s legal representatives were filed in the court.  The certificate certified that the factual basis for intended pleas of guilty had been agreed upon:

“The attached Schedule of Facts, marked “A”, is the factual basis of the accused’s plea of guilty and that there are no factual issues in dispute that remain to be resolved at the hearing of the sentence in this matter.”

The certificates were signed on behalf of the applicant on 2 September 2009 and the Director of Public Prosecutions on 10 November 2009. 

10. In summary, Schedule A contained the following –

On 29 October 2008 police executed a search warrant on the property where the applicant resided.  He was present during the search.  During the search the applicant made a number of admissions to police about items located on the property and his involvement in the drug trade.  Police found small amounts of cannabis in six separate locations in the house, three sets of electronic scales and three wrist watches as well as scissors used to chop up cannabis.  The applicant told police that he started selling cannabis to 15 regular customers at the age of 22, that is, in 1999, which grew to about 100 regular customers.  He used a mobile phone to facilitate the transactions.  He was assisted by his brother and two others:  one maintaining drug records and the other doing pick-up and delivery.  The applicant told police that he bought 500 gram vacuum sealed bags of hydroponically grown cannabis once a month from various suppliers in the Cairns/Gordonvale region paying $2,500 for each bag.  He divided the cannabis into smaller quantities and on sold them for $100 for a 7gm bag, $50 for a 3.5gm bag and $25 for a 1gm “stick”.  The applicant told police that he sold a quarter of an ounce of cannabis a day for which he received $300 to $400.

11. The applicant told police that he had purchased two kilograms of hydroponic cannabis sativa that day for approximately $10,000.  He sold it all (inferentially, wholesale) and had made a net profit of $900.  He also admitted to supplying one ounce of cannabis to one of his associates for $320 and supplying three sticks of cannabis to three people for $75 in total.  The applicant explained the three watches as payment on account for drugs supplied which had not been redeemed.  He told police that he used the scales to measure the weight of the cannabis.

12. The applicant was charged and released on bail. The second indictment’s schedule reveals that on 24 December 2008 police again executed a search warrant at the applicant’s address where there were a number of people, including the applicant.  Police observed one of the occupants holding a water pipe and lighter in his hands which he said he was about to smoke.  The applicant admitted that he had packed the pipe with cannabis.  In a cupboard in one of the bedrooms police located a set of digital scales with a small quantity of green leafy residue on the scales.  In a black box in the living area police located seven foils containing green leafy material which, on analysis, was cannabis sativa weighing seven grams.  The applicant told police that they were for personal use.  Those matters were the subject of the three charges on the second ex officio indictment.  He was arrested and remained in custody until his sentence on 11 March 2010.

(ii)Discussion

13. The applicant was aged between 22 and 31 during the period of offending. He has a significant criminal history which commenced at the age of 17 consisting of public order offending, dishonesty offences, unlawful use of motor vehicle offences, fraud, a serious assault in 2004, minor drug possession charges and numerous breaches of bail and other court imposed orders. In the past he had been given probation and community based orders as well as short periods of imprisonment. It may be inferred that the applicant has a long history of drug dependency.

14. Apart from the applicant’s contention that his admissions to police which founded the schedule of facts was incorrect due to the after effects of an epileptic seizure(s), he also contends that he could not have been involved in trafficking in cannabis over a nine year period because he spent much of the time between 2001 and 2007 in prison. His explanation, given partly in his written submissions and partly orally at the hearing, was that his statement to police was an account of what he had witnessed other people do over the years. On 9 April 2008, when he was sentenced in respect of a number of offences in the Magistrates Court, 174 days in pre-sentence custody was time declared and he was released on parole that day.  That seems to be the longest period of incarceration.  Prior thereto, so far as can be gleaned from the criminal history, the applicant was incarcerated for relatively short periods of days or a month or two. 

15. It is not necessary that a person charged with trafficking in dangerous drugs must work every day at the business, or indeed, on a regular basis.^[5]  The duration and frequency of the business might affect any assessed pecuniary penalty.  The amount of the order which, it might be inferred, was the amount sought, was quite modest when some $11,295 was admitted to have been earned on 29 October 2008.  The balance of approximately $25,000, would easily accommodate the periods in prison reflected in the criminal history, the profit which the applicant told police he made, the number of customers and the generally low level of dealing.

16. The applicant’s solicitors negotiated a schedule of facts with the Office of the Director of Public Prosecutions so that the matter could proceed on ex officio indictment(s).  Whilst this court does not have the benefit of the transcript of the sentence proceedings, the applicant does not deny that he pleaded guilty to each of the charges on the indictment.  He said that he just “froze” in court and could only say “guilty” when the charges were read out to him.  He tended to attribute both this conduct and the admissions to police to his epilepsy. 

17. On this hearing the applicant effectively conceded that he was engaged in selling drugs but in a group with the pooling of money to get a better price and/or that the dealing was low level.

18. Had the applicant remained silent when police executed the search warrant on 29 October 2008 he could not have been charged with trafficking or with the offences of supply.  Where an offender confesses to previously unknown crime he merits special leniency.^[6]  His pleas on ex officio indictments must also be given recognition in the sentences imposed.^[7]   Both are significant acts of co-operation in the administration of justice and save the taxpayer considerably.

19. The sentencing judge took into account the applicant’s co-operation in the administration of justice in admitting to criminal conduct which would not otherwise have come to light but for those admissions. But for the AB v The Queen admissions his Honour would have sentenced the applicant to seven years imprisonment.  This was at the top of the proposed range of five to seven years for a plea of guilty to this level of drug trafficking and with the applicant’s extensive criminal record.  The authorities of Johnson^[8], Lammonde^[9] and Turner^[10] supported that range.

20. In Johnson^[11] the applicant’s sentence was altered on appeal to eight years imprisonment from the nine years imposed at first instance in respect to a guilty plea on ex officio indictment for trafficking just over a five year period in methylamphetamine and cannabis sativa.  The offender was 34 when he commenced trafficking in drugs and was an addict.  He was under covert electronic surveillance for several months and during that time purchased methylamphetamine from wholesalers and made numerous sales of speed to people who came to his house.  He also supplied cannabis.  He had a criminal history for minor convictions for drug and street offences.  During the period of the trafficking he had been convicted of possession of dangerous drugs and was fined on each occasion.  He was sentenced to two years probation towards the end of that period.  This court referred to a number of comparable sentences and concluded that trafficking at street retail level to maintain an offender’s own addiction suggested a range of four to eight years imprisonment.  Keane JA said:

“The sentence to be imposed upon the applicant by this Court must reflect the seriousness of his crimes, especially having regard to the long period during which he offended, and the fact that during part of that period he was on probation.  The sentence must at the same time, however, recognise that his offending was at a lower level of criminality relative to larger retailers or wholesalers who traffic in dangerous drugs for commercial gain.”^[12]

Balancing those several factors led the court to reduce the sentence to eight years.

21. The applicant in Coleman^[13] trafficked in methylamphetamine for three and a half months.  He had an extensive criminal history and had been a major supplier of drugs in the area whilst subject to the terms of a suspended sentence.  He was sentenced to four years imprisonment but Keane JA in Johnson said^[14] he was entitled to a special degree of leniency because of his co-operation with the authorities extending to informing police of the full extent of the trafficking which led to a much more moderate sentence.  The level of trafficking would otherwise have attracted a sentence of imprisonment in the range of five to seven years after a plea of guilty. 

22. In Lammonde^[15] the offender was convicted after a plea of guilty of one count of trafficking in cannabis, a number of counts of supply and possession to six years imprisonment on the trafficking count.  Parole eligibility was fixed after two years and six months.  The duration of the trafficking was just short of three years.  That offender had an extensive criminal history involving offences for dishonesty and possession of drugs.  Her domestic partner was in prison.  He was a drug addict and required money for his habit leading the offender to become involved in drug trafficking at street level.  She involved her own children and step-child in the business.  For reasons personal to the applicant her parole eligibility date was reduced to 18 months to allow her to rehabilitate herself and provide emotional and financial support to her large family.  The head sentence of six years was held not to be excessive.

23. The offender in Turner^[16] pleaded guilty to trafficking in cannabis over seven and a half years and in morphine over a slightly lesser period.  He was sentenced to five years imprisonment suspended after two years with an operational period of five years with respect to the trafficking in cannabis and lesser period for the trafficking in morphine and other allied offences.  The applicant was targeted in a controlled operation carried out in the Townsville district.  The police had clear evidence for charging the offender with supplying drugs and possessing drugs and possessing money obtained from trafficking but in the course of a subsequent interview she admitted selling cannabis from 1997 on a regular basis.  She used the drug herself and funded that use by selling to a group of people known to her.  She admitted that the volume of sales increased over the years.  She had begun selling morphine from early 1999 and by February 2005 was selling four tablets a week.  The offender was aged 54 and had a relevant criminal history involving minor drug offending as well as convictions for stealing and a traffic offence.  She had health problems.  It was conceded that she was making relatively small sums of money each week out of the trafficking.  This court concluded that the five years head sentence was well within range given the lengthy period of the trafficking in both cannabis and morphine.  The issue was whether adequate weight was given to the mitigating factors personal to the offender which were accounted for in suspending the sentence after two years.

24. Those cases indicate that the range of five to seven years submitted before his Honour was within range for a plea of guilty.  The AB v The Queen factors of co-operation dictated a sentence at the lower end of that range.  In fixing a sentence of five and a half years it cannot be demonstrated that there is manifest excess on the evidence in the schedule of facts even if a different judge might have given greater credit for the admissions.  The applicant did not point to any other error in the House v The King^[17] sense in the sentencing process. 

Conclusion

25. The applicant’s contention that he has always regarded his sentence as manifestly excessive may be accepted. However, his explanation for the delay is not compelling. He seems able to have put in his parole application at the earliest possible time notwithstanding his accommodation at Lotus Glen which, he contends is, in part, responsible for his difficulties in advancing his application for an extension of time. He is able to offer no supporting evidence for his contention that in some manner his epileptic condition led him to make detailed admissions to police, or led to his accepting the schedule of facts and entering a plea to the trafficking charge. It is fanciful to suppose that he was merely telling police, as he asserted on this hearing, what they wanted him to say. The applicant had a long period in pre-sentence custody in which to reflect upon the charges and the basis upon which he was to be sentenced. With his extensive criminal history it may be assumed that he was familiar with the criminal justice process, even though his previous offending had been dealt with in the Magistrates Court.

26. It is likely, as the applicant himself concedes, that he is frustrated in his attempt to obtain release on parole on his eligibility date. Indeed, failure to accord that recognition tends to render his pleas of guilty and co-operation of less benefit to him. It seems, from what he said at the hearing, that it is only his placement which is impeding his progress to release on parole.

27. The explanation for the delay is not satisfactory but, more importantly, the sentence imposed on the schedule of facts was within range and due recognition was given to the applicant’s co-operation in the administration of justice. Accordingly, it would be futile to grant an extension of time.

Orders

28. I would refuse the application for an extension of time.

29. FRYBERG J:  I agree that this application should be refused for the reasons given by White JA.