R v Prendergast[2012] QCA 164

COURT OF APPEAL

de JERSEY CJ

MUIR JA

FRASER JA

CA No 1 of 2012

SC No 92 of 2010

SC No 114 of 2011

THE QUEEN

v

PRENDERGAST, Shannon Peter   Applicant

BRISBANE 

DATE 18/06/2012

JUDGMENT

THE CHIEF JUSTICE:  The applicant pleaded guilty to carrying on the business of unlawfully trafficking in methylamphetamine and MDMA over a two year period from May 2006.  He also pleaded guilty to a number of counts of supply, mostly during the trafficking period, and other related counts.

He was sentenced to eight years' imprisonment for the trafficking with parole eligibility intended after one-third of that term; that is, at the two year, eight month point.  I say "intended" because of what the sentencing Judge said.  Her Honour, in fact, specified the date as the 14th of August 2015, which was one year later.  There will need to be amendment of the sentence so that it records a parole eligibility date of the 14th of August 2014.

The eight year term was imposed for the trafficking in the context of the prosecutor’s having contended for a range of seven to eight years with parole set at one-third.  Defence counsel had contended for a range of five to seven years.  The applicant seeks leave to appeal against the sentence on the ground that the eight year term is manifestly excessive.

When he committed these offences, the applicant was aged between 31 and 33 years.  His prior criminal history was not material to the sentencing.  He had a good employment history, and is the father of two children who live with their mother, from whom he is estranged.

The trafficking operation was of some sophistication.  The applicant used seven couriers to transport the drugs between cities within Australia on at least 43 occasions by air.  Substantial sums of money were involved.  One courier estimated having collected between $20,000 and $30,000 for the applicant over a two month period.

Large amounts were deposited into the applicant's bank account and his TAB account.  They were withdrawn at different locations soon after they were deposited.  Over three months, from January, 2008, $61,980 was deposited into the applicant's bank account.  So-called "tick lists" disclosed 18 regular customers who were provided with drugs on credit in amounts of up to five grams.

They owed substantial sums to the applicant, ranging up to $14,200.  The learned Judge held that $111,225 was the minimum amount of unsourced income derived by the applicant during the trafficking period.

It is necessary to traverse some of the history of the proceeding.  On the 31st of August 2006, four months into the trafficking period, police officers executed a search warrant at the applicant's house.  They found drugs, scales and pipes.

The applicant was that day charged with those offences which have found their way in to the subject indictment as Counts 4, 5 and 6.  The applicant was also charged with a fourth offence.

He pleaded guilty to what became Counts 4, 5 and 6, and went to trial on that fourth charge.  The trial commenced in June, 2007, but miscarried.

After the applicant was charged with the four offences on 31st August 2006, he continued offending for the ensuing 20 months, being the balance of the trafficking period.  The Judge observed that this lent a flagrancy to his offending.

These four charges were, as I have suggested, eventually subsumed into the larger indictment under which the instant sentencing occurred.  The larger indictment is the one which includes the count of trafficking.  The applicant was charged with that trafficking on the 31st of April 2008 at the end of the trafficking period.

In September 2009, a two day committal hearing took place.  The subject indictment was presented on the 19th of February 2010.  At a mention in April 2010, the defence mentioned wanting to seek a financial report for the applicant.  The matter was first listed for sentence on the 7th of February 2011, and the defence interest in obtaining such a financial report was again raised with the matter adjourned to the 20th of June 2011.

In anticipation of that hearing, the applicant was on the 17th of June 2011 arraigned.  The sentencing eventually proceeded on the 14th of December 2011.  Apparently no financial report was obtained.  Certainly none was provided to the prosecution or tendered at the sentencing hearing.

The substantial delay between the applicant’s having been charged and sentenced is therefore explained in large part by the circumstances of the committal and the defence interest in pursuing a financial report.

Counsel for the applicant submitted in writing that the learned Judge erred in three respects:

1.by attributing insufficient weight to the feature that the applicant did not re-offend for three years after being granted bail on the trafficking charge.  An aspect which Mr Walsh, appearing for the applicant, reinforced with oral submissions;

2.by regarding the trafficking as sufficiently serious to warrant sentencing at the top of the range put forward by the prosecution;

3.by finding that the amount of unsourced income was at least $111,225.

I deal first with the absence of re-offending.  This can be a mitigating circumstance.  See R v Donnelly and Corbic [2007] QCA 77.

The learned Judge was, however, sceptical about a contention that the absence of further offending should weigh substantially, noting that the applicant's claim to be drug free did not surpass assertion, there was no evidence of urine testing or the like, and observing there was no evidence of the applicant’s having undertaken rehabilitation of any formal nature such as by courses.  The Judge did acknowledge that the applicant had a good employment history.

The matter was put before the Judge on the basis that the applicant was, or at least had been, a drug user but was not an addict.  Her Honour's observations were open and apposite.  The absence of re-offending did not of itself mandate a sentence lower in the range, which is what counsel's submission must come down to if other circumstances including, of course, the desirability of securing deterrence and marking appropriate denunciation, warranted a sentence at the top of the range.

I turn to the question of the seriousness of the trafficking.  Mr Walsh submitted that the applicant:  "Was more of a low-level dealer generally selling in quantities ranging between single shots and half grams."  The aggregation of the features already summarised, taken with the commerciality and sophistication of the operation and the flagrancy of his continuing with that operation for 20 months after being charged in August 2006 and for 11 months after participating in a criminal drugs' trial in the Supreme Court in June 2007, justified her Honour regarding the offending as very serious.

I turn to the third matter, the amount of unsourced income.  Mr Walsh submitted in writing that the figure of $111,225 should have been reduced to take account of income likely derived by the applicant from a used clothing business he conducted over the relevant period from his house.  Police located a substantial quantity of saleable clothing when they executed the search warrant.

The applicant was unable to provide documentary records in relation to the sale of the clothing, presumably because for taxation reasons he did not maintain them.  Also, he had ample opportunity to provide a forensic analysis of his financial position but failed to do so.

The learned Judge properly regarded those matters as significant.  Her finding as to amount was open in the context of her observations as to:  "The highly sophisticated organisation and courier, freight and flight systems (the applicant) had organised, and having regard to the large amounts of money in the tick book and being deposited in to (his) bank accounts."  That was a reasonable summary of the position.

Turning to other cases, the Judge was referred, as were we, to three cases.  R v Taylor [2006] QCA 459; R v Ikin [2007] QCA 224; and R v Cooney ex parte Attorney-General [2008] QCA 414.  The sentences involved in those cases were respectively eight years, effectively, eight years and five years.

Taylor trafficked for four months by contrast with the applicant's two years.  He was only 21 years of age.  His operation involved sales to only one customer, a police undercover agent.

Ikin trafficked for 18 months (the Judge referred to eight months, which she said was slightly shorter than the present applicant's two year period, so one should regard the reference to eight months, if not an error in transcription, as nevertheless an error without consequence), and while he carried the burden of a substantial relevant prior criminal history, he had cooperated, not insubstantially, with the police.

Cooney trafficked for a much lesser period, probably of the order of about four months.  Her Honour appropriately dealt with those comparisons and contrasts.

The sentence of eight years imposed in this case, with parole eligibility after one-third, sits comfortably with those previous cases.  I would order that the application for leave to appeal against sentence be refused, save that in the sentence imposed the date 14 August 2014, in relation to parole eligibility, should be substituted for the specified date of 14 August 2015.

MUIR JA:  I agree.

FRASER JA:  I agree.

THE CHIEF JUSTICE:  Those are the orders.