SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  The applicant, James Briggs, pleaded guilty on 19 March 2012 to trafficking in the dangerous drug methylamphetamine between 31 January and 23 October 2008 at Mackay.  He was sentenced to eight years imprisonment with his parole eligibility date fixed at 19 November 2014, that is, after serving one-third of his sentence.  He has applied for leave to appeal against his sentence contending that it is manifestly excessive.

2. He was 43 at the time of the offending and 47 at sentence. He has an extensive and infinitely varied criminal history commencing in 1984 when he was fined for stealing. It includes numerous convictions for dishonesty. In 1987, he was sentenced to six months imprisonment and three years probation for three charges of break, enter and steal; stealing, unlawful use of a motor vehicle and receiving. He was first convicted of drug related offences in 1993. In 1999 he was fined for possessing dangerous drugs and utensils or pipes used in connection with dangerous drugs. He had two further drug related convictions in 2000. More significantly, in 2001 he was sentenced to 18 months imprisonment suspended after six months with a two year operational period for two counts of supplying dangerous drugs to a minor.  He had further drug related convictions in the Magistrates Court in 2001, 2004, 2009 and 2011.  The last two of those entries related to offences committed whilst on bail for the present offence.  In 2001, he was sentenced to 12 months concurrent imprisonment for dangerous operation of a vehicle whilst adversely affected.  In 2006, he was placed on 18 months probation and ordered to perform 150 hours community service for offences of assault, including on a police officer.  In 2007, he was convicted and fined for breaching those orders and resentenced, convicted and fined for the original assault offences.  He also had a shocking traffic history extending into a sixth page.

3. He was committed for trial to the District Court on the present offence in April 2011. He pleaded guilty in February 2012 after an unsuccessful application under s 590AA Criminal Code 1899 (Qld). 

4. A tendered schedule of facts was to the following effect. Police received information and as a result attended the applicant's caryard and towing business in Mackay where the applicant and others were present. He admitted he was the occupier. Police found a canister containing 10 clip seal bags of what was later analysed as 7.418 grams containing about 10 per cent methylamphetamine with a total weight of 0.791 grams.  Police also found clip seal bags, unused syringes and other material associated with the injection of drugs, as well as an envelope containing $4,000.  After interviewing others, police established the applicant regularly supplied about 15 customers with methylamphetamine.  He was arrested and declined to participate in a record of interview.  He told police he had no knowledge of the drugs and that his mother gave him the $4,000.  She denied this to police.  He now admitted the money was from the sale of drugs.  The agreed factual basis for his sentence was that over 38 weeks he supplied methylamphetamine with a street value of $190,000 (averaging $5,000 per week) through individual supplies of 0.5 to 1.0 grams for $100 to $200.

5. The prosecutor at sentence submitted that this was large scale trafficking in a schedule 1 drug. The applicant paid his employees in drugs. The operation was largely commercially motivated. The sentencing range was nine to 11 years imprisonment. A sentence of 10 years imprisonment was appropriate.

6. The applicant's counsel submitted that the applicant turned to drug trafficking in 2008 following the global financial crisis in order to maintain his failing towing and wrecking business. He also used his modest profits to fund his marijuana and methylamphetamine habit. He and his friends were heavy users. He did not attempt to target new clients or sell other types of drugs. He lived in a basic shed without plumbing on a property owned by his mother. He did not live the life of a wealthy drug trafficker. He was addicted to methylamphetamine and cannabis and used them daily.

7. Counsel tendered a probation report which indicated that drug tests on 16 June and 6 December 2011 found no methylamphetamine but confirmed the presence of cannabis. The report also noted that the applicant appeared to lack insight into his offending behaviour and at times to minimise his offending, and that it was concerning that he continued to use cannabis. Counsel submitted that he stopped using cannabis for three months in 2011 but found it difficult to sleep. His offending whilst on bail related only to cannabis use.

8. His schooling was disrupted as his mother frequently moved residence and he still struggled with literacy. He left school in about grade 7. He is talented at working with machinery and had a steady employment history prior to commencing his towing and wrecking business in 2006. He has not been in employment since 2008 because he knew he would be serving a lengthy prison sentence. He has a long term partner and two children born in 2005 and 2006. The delay in finalising the matter was not his fault. The committal was by way of statements without cross-examination and the s 590AA hearing took place over one afternoon.

9. His counsel submitted the appropriate sentence was eight years imprisonment with a parole eligibility date set at one-third, bearing in mind the applicant's plea of guilty and the level of his offending.

10. In passing sentence, the primary judge noted the following matters. It was concerning the applicant ran a small drug ring with a reasonably large turnover over a long period. His crime was serious and has had a devastating effect on our community. The maximum penalty was 25 years imprisonment. The applicant was a mature man with an appalling criminal and traffic history. He did not seem to care for the law. His criminal history was consistent with his admitted drug taking. He was not a wholesaler of multiple drugs with large demonstrable profits. He pleaded guilty and had a hand up committal but was not otherwise cooperative with the authorities. Defence counsel's submission that a head sentence of eight years with parole eligibility after one-third should be accepted.

11. The applicant is not represented in this application. In his written submissions, he contended that his long term partner and the mother of his children is considering ending their relationship because of his lengthy prison sentence. He is worried about the impact on his two sons, now aged six and seven, whom he dearly loves and could not cope without. In the past the thought of separation from them led him to attempt suicide. Imprisonment has taught him that his family is important and he needs to change his ways. He is willing to do whatever it takes to end his cycle of offending and to become a better father and partner and to be a positive role model for his sons. He also emphasised that he became involved in the offending because of his poor financial position. He supplied only associates and friends who were already drug users. After his arrest, he genuinely tried to get off drugs. He pleaded guilty because he wanted to have the case finalised and to have a more productive life with his family. He also submitted that his sentence was excessive when compared to R v Rickert, an unreported matter before North J in Mackay on 17 July 2012.  He made no oral submissions at the hearing.

12. Rickert was charged with trafficking in cannabis over a two year period and, during the last six months, methylamphetamine. He was aged 17 when his offending commenced and 19 at sentence. The evidence of his trafficking came from his admissions to police. His total profit was less than $30,000 which he spent on alcohol and living expenses. He had no criminal history, excellent references and promising rehabilitative prospects. He was sentenced to five years imprisonment suspended after 18 months.

13. It is immediately clear that Rickert is not clearly comparable to the present.  Rickert was 17 when he offended, had no criminal history and his own admissions were the source of the charges of trafficking.  By contrast, the applicant was a mature man of 43 years, with a shocking criminal and traffic history, who continued to offend whilst on bail and who falsely denied his involvement in the offence.

14. Whilst no two cases are ever the same, the applicant's sentence is generally consistent with that in R v Twaddle,^[1] R v Ikin,^[2] R v Johnson^[3] and R v Ungvari.^[4]  It is also the penalty requested by the applicant's counsel at sentence.  It is true the applicant pleaded guilty and his offending was at a lower level of criminality than that of large retailers or wholesalers who are not addicts and who traffic in dangerous drugs solely for commercial gain.  The applicant trafficked to support his own heavy use of cannabis and methylamphetamine.  But there was also a commercial element to it, albeit one aimed at subsidising his business in difficult financial times.  He was not, however, a cynical drug dealer living the high life on the profits of his filthy trade: see Johnson^[5] and R v Coleman.^[6]

15. There were, however, as the primary judge noted, serious aspects to this trafficking. He was a mature man. He had been given many previous opportunities to turn his life around but he did not avail himself of them. He had a shocking traffic and criminal history, including for drug offences, and he continued to commit drug offences whilst on bail. The maximum penalty was 25 years imprisonment.

16. No doubt these exacerbating features were in part because of his drug dependency. It is commendable that, after a period of incarceration, he at last seems to have some insight into the effect of his misuse of drugs, not only on him but on his partner and children. He is concerned that the lengthy term of imprisonment he must serve before gaining parole places his relationship with his partner and his much-loved children at jeopardy. It is impossible not to feel sympathy for the applicant and his present unfortunate predicament. Unfortunately, he only has himself to blame for it.

17. Critically for this application, he has not demonstrated that the sentence imposed was manifestly excessive or that the sentencing judge erred in any way in determining that sentence. It follows that the application must be refused. The applicant should now focus his efforts on his rehabilitation and in preparing his parole application so that he can be a responsible father to his young boys.

ORDER:

The application for leave to appeal against sentence is refused.

18. FRASER JA:  I agree with the reasons for judgment of the President and the order proposed by her Honour.

19. WHITE JA:  I have read the reasons for judgment of the President and agree with her Honour's reasons and the order which she proposes.