R v Peters[2012] QCA 325

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P: I agree with Fraser JA's reasons for refusing this application for leave to appeal against sentence.

[2] FRASER JA: On 27 July 2012, the applicant was convicted on his plea of guilty of carrying on the business of unlawfully trafficking in the dangerous drug cannabis.  He was sentenced to imprisonment for three years and six months, with eligibility for parole fixed at 26 July 2013.  The applicant has applied for leave to appeal against the sentence.  He contends that the sentence was manifestly excessive and that the sentencing discretion miscarried in various ways. 

[3] The circumstances of the offence were set out in an agreed schedule of facts.  From about the end of 2007 Glen Debney was involved on behalf of Terry Barry in transporting cannabis from Melbourne to Brisbane.  Barry learned that the applicant was having financial difficulties in his business and approached him to act as a courier.  On four or five occasions between late 2007 and early 2008 the applicant went to Melbourne and drove a hire car containing cannabis from Melbourne to Brisbane in exchange for $1,000 paid by Glen Debney from money supplied by Barry.  After Glen and Tania Debney were arrested, the applicant transported some cannabis from South Australia to Queensland for Barry.  On the first occasion Barry gave the applicant $30,000 and the applicant transported 10 or 11 pounds of cannabis.  A couple of weeks later Barry gave the applicant $40,000 to purchase some more cannabis.  The applicant contacted Barry and advised him the cannabis was no good and the applicant later transport 11 pounds of cannabis from a different South Australian supplier nominated by Barry.

[4] The agreed statement of facts refers to numerous telephone intercepts of conversations and messages between Barry and the applicant in which they made arrangements for the applicant to travel and collect the cannabis and discussed deliveries that had already occurred.  In October 2008, Barry cancelled a proposed arrangement for the applicant to collect cannabis and subsequently told the applicant that the trip was off because Barry had lost his money with someone else and there had been raids in New Zealand and South Australia.  The applicant did not traffic cannabis after that time.

[5] The applicant was 41 and 42 years old when he committed the offence.  Six years earlier he had been convicted in the District Court in South Australia on one count of possession of cannabis for sale and one count of production of cannabis.  He was sentenced to 14 months imprisonment with a non-parole period of ten months.  The imprisonment was suspended upon the applicant entering into a bond to be of good behaviour for two years and he was also fined $3,000.  Sulan J described the offending as serious, expressed confidence that the applicant would not offend again, noted that the sentence he intended to impose should act as a deterrent to the applicant, and remarked that the applicant perhaps did not need further deterrence because he realised the seriousness of what he had done. 

[6] At the time of the sentence hearing in this matter the applicant was a single 46 year old man living in a rental property.  Of his four children from a previous marriage, his two sons, aged in their early 20’s, and his eldest daughter, 18 years old, lived independently, and his 15 year old daughter lived with his ex-wife.  In the period of more than three years after the applicant ceased to be involved in trafficking in cannabis he had been employed and he had not been charged with any offence.  Drug screening test results were clear and he was employed at a mine where detection of cannabis was likely if he used it.  Defence counsel tendered a report by a psychologist which referred to the applicant having experimented with cannabis when he was about 15 or 16 years old.  He did not then like it, but he returned to using cannabis after a motorcycle accident when he was about 21 years old.  The applicant said that he found that cannabis helped him to sleep and reduced chronic pain in his left wrist.  After a subsequent period of intensive use of cannabis, the applicant used it intermittently until he was about 33 years old.  The psychologist considered that the applicant had untreated depression at the time of the offending and was also then misusing cannabis.  In the psychologist’s opinion the applicant’s judgment was significantly impaired by a depressive disorder, cannabis use, and realistic fears that he would lose his business and become bankrupt.

[7] The sentencing judge regarded the applicant’s pleas of guilty as being important and thought that there might be good prospects of continuing rehabilitation, but it was a cause for concern that the applicant had committed the trafficking offence some years after the suspended sentence imposed by Sulan J when the applicant was in his mid 30’s.  The sentencing judge observed that the nature of the applicant’s offending was such as to emphasise considerations of both general and personal deterrence, especially given the applicant’s criminal history. 

[8] It is convenient to defer consideration of the contention in ground one of the proposed appeal that the sentence was manifestly excessive until after consideration  of the grounds which contend for specific errors in the sentencing discretion.

[9] Ground two of the proposed appeal contends that the sentencing judge’s discretion miscarried because “no weight or not sufficient weight” was attributed to the applicant’s psychiatric illness before and at the time of the commission of the offence, his rehabilitation since the commission of the offence, and “all other mitigating circumstances”.  As was submitted for the applicant, a mental disorder may lessen the moral culpability of an offender and so moderate the need for deterrence as a sentencing consideration.[1]  The applicant’s counsel submitted that the sentencing judge made no allowance, or insufficient allowance, for the fact that the applicant’s offending was partly due to his major depressive disorder.  That argument should not be accepted.  The sentencing judge observed that the applicant decided to engage in trafficking cannabis “…for a number of reasons that included untreated depression, an ongoing cannabis addiction and financial difficulties…”.  That accurately reflected the evidence on those topics at the sentence hearing.

[10] The applicant’s counsel submitted that the sentencing judge misstated the evidence in the remarks that, “Despite what had been said to Judge Sulan on your behalf, you had been using cannabis since your mid-teens.”  That was an accurate summary of the evidence, notwithstanding that the applicant apparently used cannabis in his mid-teens only for a short time.  Sulan J’s sentencing remarks do not refer to the applicant having used cannabis at all before his motorcycle accident.

[11] The sentencing judge also referred to the evidence of the applicant’s rehabilitation in the lengthy period following the offence.  Contrary to the contention in this ground of appeal, there is no reason to think that insufficient weight was given to this factor.  The applicant’s counsel did not identify any other mitigating circumstance to which the sentencing judge did not refer.  The argument that the sentencing judge attributed no weight to the matters mentioned in ground two cannot be sustained.  The sentencing judge adverted to each matter and an allowance in the applicant’s favour was adequately provided in the sentence, particularly bearing in mind that the period until the applicant will become eligible for parole is less than one third of the term of imprisonment.  There is no ground for holding that the sentencing judge did not attribute weight or sufficient weight to any mitigating circumstance upon which the applicant relied at the sentence hearing. 

[12] Ground three of the proposed appeal is that the sentencing discretion miscarried because the sentencing judge gave undue weight to the applicant’s prior conviction and role in the offending.  As to the second matter, it is sufficient to say that the sentencing judge accurately described the applicant’s role in the drug trafficking operation and there is no reason to think that undue weight was given to it.  As to the prior conviction, the submission for the applicant was that the sentencing judge wrongly characterised the prior conviction as involving “commercial exploitation” of cannabis.  There is no substance in that submission.  The previous offence, as it was described in Sulan J’s reasons, involved a commercial element; the charge was that the applicant knowingly had cannabis in his possession for the purpose of selling it to another person and that the offence involved more than two kilograms of cannabis.  Furthermore, Sulan J sentenced the applicant on the expressed bases that the amount of cannabis involved was approximately five kilograms, it had a value of somewhere between $25,000 and $60,000, the applicant had intended to sell about half of that quantity to friends, and the applicant “…would have received a large amount of money from friends”.  Although Sulan J accepted the applicant was not in the business of growing cannabis for profit or as a business, he was “…taking advantage of the large amount of cannabis that you had accumulated and, undoubtedly, you would have made ... a considerable amount of money from the stock that you were going to sell.”  The sentencing judge’s description of the previous offence as “involving the commercial exploitation of a substantial quantity of cannabis” was accurate.

[13] Ground 4 of the proposed appeal contends that the sentencing judge “…failed to give proper and adequate consideration to the issue of parity” and that the applicant has a “…justifiable sense of grievance when sentences of other offenders involved in this operation are compared to the applicant’s sentence.”  The applicant’s counsel relied upon a sentence of three years imprisonment suspended after nine months for an operational period of three years for trafficking over a three and a half month period which was imposed on Marsh by Daubney J on 17 September 2010.[2]  The submissions for the applicant and respondent agreed in the proposition that Marsh’s level of involvement was comparable to the applicant’s involvement, but the applicant’s counsel contested the submission for the respondent that the differences in the sentences were justified by differences in circumstances. 

[14] In Green v The Queen; Quinn v The Queen,[3] French CJ, Crennan and Kiefel JJ stated that “the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances” and that the Court will not intervene “…where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.”  The less severe sentence imposed on Marsh is readily explicable by the circumstances that, unlike the applicant, Marsh made full admissions to police of his own involvement, he told police about the involvement of others, and, importantly, he had no previous convictions.

[15] The remaining ground of the proposed appeal is ground one, which contends that the sentence was manifestly excessive.  That contention is difficult to maintain in light of the sentence of four years imprisonment with parole eligibility after ten months which was imposed in this Court on Prior in R v Broad & Prior.[4]  Prior, pleaded guilty to trafficking in cannabis over a five month period.  He had acted as a warehouseman of the cannabis, collecting it from a courier and keeping it overnight in his home until its collection the following day by someone else.  Like the applicant, Prior was also entrusted with money to pay for the drugs.  He was given at least eight payments each of about $500 or $600 for the occasions on which he collected drugs, totalling between $4,000 and $4,800.  Prior’s background was similar to the applicant’s in that Prior had been in constant employment, was married, had children from previous marriages and a child of the present marriage, supported his wife and the younger children, and had a home subject to a mortgage, the payments of which he could not make whilst in prison.  Also like the applicant, Prior was a consumer of cannabis before his offending, said that he used cannabis as an analgesic, his motivation for his offending was purely financial, he said that he was remorseful, and he pleaded guilty in a timely fashion.  Prior was also convicted of possessing property ($110,000) which was reasonably suspected of being the proceeds of an offence against the Drugs Misuse Act.  The large amount of that money arguably supplies a ground for a more severe sentence in Prior’s case, but on the other hand his role was arguably less significant than the applicant’s and, unlike the applicant, Prior’s one previous conviction (some 20 years earlier) was regarded as having no relevance and Prior gave police a full account of his involvement in the offence.  Notwithstanding the various differences between this case and Prior’s case, the relevant circumstances are quite closely comparable.

[16] The applicant’s counsel also referred to R v Guzan[5] and R v Collins[6], albeit in the context of a submission about the appropriate sentence if, contrary to my own view, the Court found a specific error in the exercise of the sentencing discretion.  In R v Guzan, an offender who sold cannabis during a 45 day period and earned more than $10,000 was sentenced to two years and nine months imprisonment with a recommendation imposed on appeal of eligibility for post-prison community-based release after six months.  That offender had previous drug convictions.  As the respondent pointed out, however, when nine months pre-sentence custody which could not be declared as time served under the sentence is taken into account, the effective sentence was three and a half years imprisonment with eligibility for release after 15 months.  With that in mind, the sentence for the unlawful trafficking offence in R v Guzan does not support a submission that the applicant’s sentence was manifestly excessive.  In R v Collins, the offender was sentenced to four years imprisonment suspended after six months for the unlawful trafficking of cannabis over a three month period.  It is unnecessary to describe the circumstances of that offence, which was certainly more serious than the applicant’s offence.  R v Collins is not useful as a comparable sentence because that offender’s criminal history was described as being “some decades old, of no real significance”[7], he co-operated with the police to the extent of implicating other persons suspected of drug trafficking and indicating his willingness to give evidence, and this Court regarded the sentence as “advantageous treatment”[8] for that offender. 

[17] The maximum penalty for the applicant’s offence is 20 years imprisonment.[9]  The sentence of three years and six months with eligibility for parole fixed after 12 months was not manifestly excessive.  There was no error in the exercise of the sentencing discretion.

[18] The application for leave to appeal should be refused.

[19] BODDICE J: I have read the judgment of Fraser JA.  I agree, for the reasons given by Fraser JA, that the application for leave to appeal should be refused.