R v Budd[2012] QCA 120

SUPREME COURT OF QUEENSLAND 

[1] FRASER JA: On 18 January 2012 the applicant was convicted on his pleas of guilty and sentenced to concurrent terms of imprisonment of 18 months for 28 counts (counts 1-27 and 29) of supplying a dangerous drug and one count (count 28) of producing a dangerous drug.  He was sentenced to a concurrent term of imprisonment for six months on one count (count 31) of possessing a thing used for production of a dangerous drug.  The Crown did not proceed on count 30, which charged production of a dangerous drug.  The sentencing judge fixed a parole release date of 18 April 2012 (after three months of the 18 months effective sentence of imprisonment). 

[2] The applicant has applied for leave to appeal against sentence.  He contends that: the sentence was manifestly excessive.  He also contends that the sentencing judge erred in concluding that the last resort of imprisonment was necessary because some of the offending occurred after police searches, there were a large number of offences, and there was a need for parity with sentences imposed on other offenders.  He also argues that the sentencing judge failed to give sufficient weight to the applicant’s addiction being the cause of his offending.

[3] The applicant was between 29 and 30 years of age at the time of the offences and he was 32 years of age when he was sentenced.  He has a history of drug-related offending, having been earlier convicted and fined for offences which he committed in 1998 and 1999.  On 17 May 2010 he was again convicted and fined, for possessing dangerous drugs and related offences which he committed on 14 April 2010; he was released on bail when he appeared in relation to those matters on 4 May 2010.  He committed count 31 in the indictment on 6 May 2010, whilst he was subject to the bail granted two days earlier.  On 2 June 2010 he was convicted of further drug offences he had committed on 6 May 2010, which came to light during the search related to count 31.  On 4 January 2011 he was convicted of another drug offence which he committed on 20 June 2010. 

[4] The charges against the applicant arose out of a police operation which primarily targeted Gimm, during which his co-offenders, the applicant and Nelson, also became targets.  Gimm was producing methylamphetamine.  Recorded telephone conversations revealed that Nelson and the applicant were in contact with Gimm.  The applicant was in contact with Gimm more than once on each of 17, 18, 19, 20, 21, 22, 24, and 30 April and 13 May 2010.  Their conversations mainly related to the applicant buying drugs from Gimm, making enquiries about the production of drugs, or comments about the quality of the drugs.  After an incriminating utensil was found on the applicant during a search conducted on 20 June 2010 (which followed both the execution of the search warrant on the applicant on 14 April 2010 and  his consequential appearance in the Magistrates Court on 17 May 2010, and the execution of the search warrant on the applicant on 6 May 2010 and his consequential appearance in the Magistrates Court on 2 June 2010), the applicant agreed to provide police with a statement outlining his and Gimm’s involvement in the production and supply of methylamphetamine.  The applicant then provided police with such a written statement, which he adopted in an interview with police.

[5] The applicant knew that Gimm was producing methyalmphetamine and assisted him in that production by supplying cold and ‘flu tablets containing pseudoephedrine for use in the production, in exchange for the applicant being given some of the finished product.  The applicant stated that he had had a drug addiction for 16 years which was “on and off”.  He admitted knowing Gimm for 12 months and stated that Gimm was a methylamphetamine “cook”.  The applicant accepted that he was present when Gimm cooked speed on at least one occasion, that he purchased drugs from Gimm regularly over a 12 month period, and that he purchased drugs from him one to two times a week.  The applicant sometimes pooled money with friends and purchased small amounts of the drug for personal use; the supply counts were based upon the applicant’s admissions that he supplied drugs to friends on 25 occasions.

[6] The sentencing judge found that Gimm was the only one of the three offenders who had engaged in trafficking, that it was a business which he had engaged in for nearly 12 months, and that it was a commercial enterprise in which money changed hands.  Nelson’s role was at a lower level, being an assistant for some of the production, and he was not charged with trafficking.  The trial judge accepted that the applicant’s role was at an even lower level.  After discussing circumstances which were directly relevant to the sentences imposed upon Gimm and Nelson, the sentencing judge summarised the applicant’s personal circumstances and the circumstances of the offence directly relating to him.  The sentencing judge noted that although some of the charges were supported by evidence of the intercepted telephone conversations, some were not and some could not have been brought without the applicant’s admissions.  For that reason, the sentencing judge extended leniency to the applicant in accordance with the principle in AB v The Queen.[1] Reference was also made to the applicant’s early plea of guilty.  The sentencing judge accepted that the applicant’s offending was “underpinned by his addiction”, referred to a psychologist’s report tendered by the applicant’s counsel, and accepted that the report demonstrated that the applicant had mental health problems which required treatment and that he exhibited symptoms of anxiety and residual psychosis.  The sentencing judge observed that he had read and taken the psychologist’s report into account.

[7] After noting that the prosecution sought a term of actual imprisonment as part of the applicant’s punishment, the sentencing judge observed that he had to “seek to maintain some parity between your sentence and those of the others”.  After referring to the submission for the applicant in favour of a non-custodial, suspended sentence, the sentencing judge observed that the applicant had been convicted of a “large number of offences” and that “their continuation after the police search demonstrates that many of the mitigating factors in your favour are not quite sufficient to avoid some term of imprisonment.”

[8] In relation to the relevance of the applicant’s drug addiction, the applicant referred to R v Hammond,[2] in which the Court observed:

“[Drug addiction] is a factor that may help an offender to the extent of showing that his or her descent into the crime in question was a secondary consequence of desperation produced by a human weakness rather than a primary choice. … The offender must of course be held responsible for his or her own actions.  The drug addiction is not an excuse; but it is a factor that may tell the court that the real weakness of character is that of a drug addict rather than that of a robber.  That may be by no means inconsequential.  It is however a two-edged factor; it may also tell the court that rehabilitation is going to be difficult.”

[9] The applicant submitted that the number of offences and the continuation of the offending conduct by the applicant after police searches were indications of and secondary to the addiction suffered by the applicant, and that so much was supported by the psychologist’s opinion that the applicant did not harbour anti-social or pro-offending attitudes.  It should also be noted, however, that the psychologist reported his opinion that the applicant was at a medium level of recidivism risk, reflective of the level of risk associated with the lack of organised activity, such as employment, structured activities or involvement with the local community group or centre.  The psychologist considered that the applicant’s risk of re-offending was closely related to his risk of continuing to use illicit substances, and that the applicant would benefit greatly from “long-term, assertive management of his mental health symptoms, with efforts to medicate him appropriately being a central priority”.  The psychologist went on to make recommendations about the treatment which should be given to the applicant should he receive a custodial sentence or, alternatively, a non-custodial sentence.  The report did not suggest that the applicant could not receive appropriate treatment in prison. 

[10] The sentencing judge referred to the psychologist’s report and expressly took it into account.  There is no ground for thinking that the sentencing judge did not give appropriate weight to the effect of the applicant’s addiction.

[11] As to the number of the offences committed by the applicant and his continued involvement in using drugs, it was submitted that these did not demonstrate lack of remorse or defiance of authority.  They were more properly to be attributed to the applicant’s addiction rather than any inherent disposition towards offending.  Again, it is clear that the sentencing judge gave anxious consideration to this matter, concluding that the applicant’s persistence in offending after the police search demonstrated that the factors in favour of mitigation were “not quite sufficient” to avoid a term of actual imprisonment.  The sentencing judge was bound to take into account the number of offences.  That legitimate consideration was not given undue emphasis.  Nor can it be doubted that the applicant’s conduct in offending whilst on bail and after having been searched by police in relation to other drug offences was an aggravating circumstance.

[12] The applicant argued that a non-custodial sentence was open and that it was therefore appropriate that such a sentence be imposed.  It was submitted that this conclusion was required by the provision in s 9(2)(a) of the Penalties and Sentences Act 1992 that a court must have regard to the principle that a sentence of imprisonment should only be imposed as a last resort.  However there is no ground for thinking that the sentencing judge did not “have regard to” that basic sentencing principle.  It must be borne in mind that s 9(2) also obliged the sentencing judge to have regard to many other matters, including the maximum penalty prescribed for the offence (20 years imprisonment for the supply and production offences, and 15 years imprisonment for the possession offence charged in count 31), the offender’s age and intellectual capacity (the applicant was a mature man whose intellectual capacity was certainly sufficient to appreciate his wrongdoing), the prevalence of aggravating or mitigating factors concerning the offender (I have referred, for example, to the applicant’s offending whilst on bail and after being searched by police), and the prevalence of the offence (these offences are notoriously prevalent): see s 9(2)(b), (f), (g), and (h).  I refer to those matters by way of example, simply to make the point that, although the principle that a sentence of imprisonment should only be imposed as a last resort is important, it is but one of many matters to which the sentencing judge was obliged to have regard in formulating a just sentence in the particular circumstances of this case.

[13] The applicant argued that the sentencing discretion miscarried as a result of the sentencing judge’s reference to a need to maintain parity between the applicant’s sentence and the sentences imposed upon Nelson and Gimm.  In Green v The Queen; Quinn v The Queen,[3] French CJ, Crennan and Keifel JJ observed that “[a]s with the norm of ‘equal justice’, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.”  The applicant argued that, in light of the significant differences between the circumstances concerning the applicant and those concerning his co-offenders, the “last resort” principle could not be displaced by a requirement to imprison the applicant in order to maintain parity with the co-offenders’ (appropriate) custodial sentences.  It was also submitted that it was not a proper application of the parity principle to adjust only the sentence of one offender (the applicant’s sentence), rather than conducting an assessment to ensure that there was due proportion amongst all of the sentences in light of the differing circumstances of each offender.  The latter proposition finds support in the statement by McMurdo P in R v LY,[4] that “[i]t would have been an error of law for the judge to have sentenced LY to a period of detention that was not for the least time justified in the circumstances so as to minimise the inevitable disparity with Hockey’s sentence.”

[14] There is, however, no indication that the sentencing judge erred in any of the ways for which the applicant contended.  The sentencing judge had earlier referred to the varying degrees of culpability of each offender, specifically noting that the applicant’s culpability was at a lower level than that of the co-offender Nelson, whose culpability was itself at a lower level than that of the co-offender Gimm.  The sentencing judge also expressly took into account the particular mitigating factors urged for the applicant, including his addiction.  In the context of the sentencing remarks read as a whole, the reference to seeking “to maintain some parity between your sentence and those of the others” did not indicate that the sentencing judge imposed a sentence of imprisonment even though that penalty of “last resort” was not required by reference to the circumstances of the applicant’s offending and his personal circumstances. 

[15] The applicant did not develop an argument or refer to any decision which suggested that the sentence imposed upon the applicant otherwise could be regarded as manifestly excessive.  In my opinion the sentence was not manifestly excessive.  The applicant has not established any error in the exercise of the sentencing discretion which might justify appellate interference.

Proposed order

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

[17] MARGARET WILSON AJA: The application for leave to appeal against sentence should be refused for the reasons given by Fraser JA.

[18] APPLEGARTH J:  I agree with the reasons of Fraser JA and with the order proposed by his Honour.