SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  The applicant pleaded guilty to two counts of trafficking in dangerous drugs – 3,4-methylenedioxymethylamphetamine (ecstasy) and methylamphetamine on the first count and cannabis and growth hormone on the second count – and was sentenced on each count to imprisonment for five years.  He also pleaded guilty to, and received lesser sentences in respect of, 11 counts of supplying a dangerous drug, methylamphetamine (on three of those counts the applicant was charged alone, and on eight counts with a co-accused, AB); one count of possession of the dangerous drugs, growth hormone, nandrolone, stanozolol, trenbolone and testosterone (which, it was accepted, were for the applicant’s personal use); and one count of possessing money ($4,720) obtained from trafficking.

[2] The applicant seeks leave to appeal the five year sentences for trafficking, arguing that they are manifestly excessive and, in particular, that although the sentencing judge took into account information that he had given in relation to other offenders, his Honour did not sufficiently ameliorate the sentence to recognise the applicant’s fear of being harmed while in custody.

The offences

[3] The applicant was 23 years of age over the trafficking period, which extended for seven and a half months from mid 2009 until his arrest in February 2010.  During most of that period he was on bail in relation to an offence of possessing ecstasy tablets, although that charge was not ultimately proceeded with.  He was in daily contact with another man, HJ, who supplied him with commercial quantities of cannabis, ecstasy and methylamphetamine, while he supplied HJ with human growth hormone.  In the later stages of the trafficking, however, the applicant supplied methylamphetamine to HJ and to an associate.

[4] The applicant received several ounces of methylamphetamine every couple of days from HJ.  On one occasion they were heard (through a listening device) discussing a supply of two pounds.  He cut, packaged and distributed the drugs for profit.  He received thousands of ecstasy pills at a time, which again he divided and distributed for profit, and similarly obtained cannabis from HJ and sold it; the largest supply of that drug was 26 pounds.  Meanwhile, the applicant sold HJ boxes of human growth hormone in 2009, and in early 2010 sold the substance to other customers.  For the last one and a half months of the trafficking, the applicant was assisted by his co-accused, AB, who was selling drugs for him as well as trafficking on her own account.  AB was intercepted on 26 February 2010 with a large amount of methylamphetamine, four and a half ounces of which she was intending to supply to HJ on the applicant’s behalf.

[5] The trafficking was consistent and regular, with the applicant seeking supplies every few days or, sometimes, every few hours.  He and HJ communicated by sending each other text messages over a number of mobile phones.  The transactions they referred to in text messages regularly involved amounts between $10,000 and $30,000, but on occasion larger sums were involved.

The applicant’s background

[6] The applicant had some criminal history.  It consisted in the main of wilful damage and charges related to graffiti, but he had been fined in the Magistrates Court on one occasion for possessing a dangerous drug (which appears to have been cannabis) and on another occasion had been placed on 12 months probation for supplying and possessing dangerous drugs.  He declined to be interviewed when he was arrested, but his committal had proceeded by way of a hand up brief without cross‑examination and he had pleaded guilty in what the Crown accepted was a timely way.

[7] While on remand, the applicant provided information to police which the Crown accepted was timely, accurate and of substantial assistance; in one instance his information resulted in the seizure of a large amount of cannabis and in another led to the laying of charges against two people for serious drug offences.  Other information was still the subject of investigation at the time of his sentence.  However, although in a position to do so, the applicant declined to assist the police in their investigation of two particular suspects.

[8] The applicant had particular reason to be apprehensive that others would perceive him as a police informer.  In 2008, he was required to appear before the Australian Crime Commission where he gave information about obtaining methylamphetamine and ecstasy from two individuals whose names he gave in full and some other persons whom he did not identify beyond Christian names.  In September 2010, the transcript of the examination was provided by the Crown to the individuals whose full names he had given, as part of disclosure in their prosecution.

[9] The applicant provided an affidavit and was cross-examined on it before the sentencing judge.  He said that in late 2011, an acquaintance told him he had obtained a transcript of the ACC hearing from a criminal.  Soon after, a copy was delivered to the business which the applicant was then running.  The man who had initially acquired the transcript told him that he was a “dead man walking” and that he would be lucky to live another month.  The applicant immediately removed himself from the area where he was living and went into hiding.  He received text messages accusing him of being a “dog”.  In consequence of those events, he had suffered from anxiety and had been counselled by a psychologist.

[10] A report from that psychologist was tendered.  The writer noted that the applicant had a tendency to exaggerate his symptoms, although that might be motivated by his concern for the future.  He did not think it likely that the applicant’s claims to fear prison were feigned so as to avoid a prison term; a concern about the implications of being in a prison environment seemed warranted in the circumstances.  In an update to that report, the psychologist expressed the view that the applicant was experiencing stress and anxiety in relation to concerns about his safety.

The sentencing remarks

[11] The trial judge reviewed the facts of the trafficking and supplies.  He noted that there was no evidence as to the amount of money the applicant had earned; the Crown had conceded that he did not appear to be “living the high life”.  His Honour took into account the early indication of a plea of guilty and the information which the applicant had given to the police.  He noted that the contents of the applicant’s ACC interview had been made known to the persons inculpated in it, while copies of the transcript had become available to other individuals engaged in crime.

[12] The sentencing judge had been referred to the High Court’s decision in York v The Queen[1] concerning the leniency to be extended to an offender who, because of assistance to authorities, had to serve a sentence under the risk of reprisals.  His Honour said that he took into account what had been said in that decision and quoted this passage from the judgment of Gleeson CJ:

“It is common sentencing practice to extend leniency, sometimes very substantial leniency, to an offender who has assisted the authorities, and, in so doing, to take account of any threat to the offender’s safety, the conditions under which the offender will have to serve a sentence in order to reduce the risk of reprisals, and the steps that will need to be taken to protect the offender when released.”[2]

[13] The learned judge noted that in York that there was evidence of the extent of the risk to which that applicant was exposed; she faced a very real danger of being killed in prison.  There was, he observed, no similar evidence in the present case.  Before making findings about the level of threat to the applicant, his Honour referred to remarks in York about the difficulty of measuring the extent of a risk of harm to a prisoner and the relevance of the more onerous conditions under which an offender perceived to be at risk would serve his sentence.

[14] The sentencing judge found that the applicant’s understanding of the threats made against him was based on second-hand information from others; although under cross‑examination he had claimed to have received a specific direct threat, it had not been mentioned in his affidavit.  His Honour noted other aspects of inconsistency in the applicant’s evidence.  He said that he had formed the clear impression that the applicant was very concerned about his safety, but had also exaggerated substantially and embroidered the evidence.  He noted also that although there were references to the applicant in text messages and social media as a “dog”, he had nonetheless continued to engage in text conversations with some of the people responsible for the statements.  The applicant had declined to engage the police or any other authority to make a risk assessment on his behalf.  The sentencing judge concluded that although threats had been made, there was not sufficient evidence of a real threat of harm or of a risk such as to warrant the adoption of the approach in York, of suspending the sentence immediately.  There was, he said, no evidence that the people who had made threats to the applicant had any greater ability to cause him harm in gaol than if he were at large.

[15] The sentencing judge regarded the applicant’s criminality as less than that of HJ (who was sentenced to an effective sentence of 14 years imprisonment for four counts of trafficking) but greater than that of AB (who received a sentence of four and a half years imprisonment, with parole eligibility after 18 months).  His Honour noted the competing considerations of encouraging co-operation by giving a discount on the sentence and of ensuring that the reduction did not result in a sentence that was an affront to community standards.

[16] In the absence of the applicant’s co-operation, the judge would, he said, have imposed a sentence of between 10 and 11 years.  He instead imposed the sentence of five years imprisonment on the trafficking counts, noting that he had given a substantial discount on the bases of the applicant’s co-operation and the “real concern” he had about the risks to which he felt he would be exposed.  His Honour observed that, whether or not the transcript had been revealed, the applicant

“would always be in the position of being able to be described possibly, or exposed possibly as an informant”.

The judge went on to remark that, the sentence having been set at five years, the applicant was spared the consequences of being convicted of a serious violent offence.  He concluded by recommending that Corrective Services authorities consider the applicant’s status and take steps necessary to ensure his protection.

The applicant’s contention

[17] The applicant submitted that the sentencing judge had started his considerations from too high a notional head sentence, and had not recognised the more onerous conditions under which he would serve his sentence, given his fear of being harmed.  Further threats made to him in custody confirmed that his fear was warranted.  The judge had not sufficiently discounted the sentence to reflect that factor and the applicant’s co-operation.  In addition, in considering the appropriate discount, the judge had wrongly taken into account the fact that imposing a sentence of less than ten years meant that the applicant would not be required to serve 80 per cent of his sentence before being eligible for parole.  The head sentence imposed should have been between three and four years, with either immediate suspension or suspension after one year was served.

The notional head sentence

[18] The applicant submitted that the learned sentencing judge was wrong in starting his consideration of the appropriate sentence, before allowance for co-operation, at 10 to 11 years.  He did not point to any comparative sentences which would support the submission that a sentence in that range was outside a proper exercise of discretion for the offending.  The respondent Crown, on the other hand, identified a number of decisions which supported a head sentence of at least 10 years imprisonment for trafficking of these proportions: R v Bradforth;[3] R v Feakes;[4] R v Westphal;[5] R v Rodd; ex parte A-G (Qld)[6] and R v Kashton.[7]

[19] In R v Bradforth, the applicant was sentenced to 12 years imprisonment for a 12 month period of trafficking in cocaine, ecstasy and methylamphetamine.  He was 26 years old, without any previous drug-related convictions.  He had been sufficiently successful to give up his day job, but there was no evidence of any great wealth accrued.  This court set aside the sentence and substituted one of 10 years imprisonment to recognise firstly, the applicant’s early plea of guilty, and secondly, the fact that he had been on remand for nine months before he was sentenced.

[20] In Feakes, the applicant was charged with trafficking in cocaine, ecstasy (at a time when it was still a schedule 2 drug) and a chemical variant on ecstasy, 3,4-methylenedioxyethylamphetamine (also a schedule 2 drug).  He was about 30 years old at the time and had only a very minor drug history.  The trafficking took place over a six month period, but had commenced at the very end of his being on a four month good behaviour bond in relation to a minor drug charge.  He had entered a timely plea of guilty.  The trafficking involved his supply of drugs to covert police operatives.  He had, since being charged, undertaken programs to reduce his cannabis use and had remained abstinent for two years.  This court observed that although the applicant might properly have been sentenced to nine years imprisonment, the sentence imposed, of 10 years imprisonment, notwithstanding that it involved a serious violent offence declaration, was not excessive, given that the applicant was not a youthful first offender and had trafficked at a high level when he had quite recently been placed on a good behaviour bond.

[21] In Westphal, the applicant was convicted of two counts of trafficking in methylamphetamine.  He was sentenced to 10 years imprisonment in respect of one (involving a 14 month period of trafficking) and five years imprisonment in respect of the other (involving a one month period).  A financial analysis showed that he had spent $215,000 which could not be accounted for from legitimate sources.  On the other hand, he was a registered informant and had arranged a meeting between a covert police officer and a dealer which resulted in the prosecution of the dealer for the charge of supplying a dangerous drug.  That evidence was not before the sentencing judge but was placed before this court by way of affidavits from the applicant and the police officers involved.  Having regard to that co-operation, the 10 year sentence was set aside and a sentence of nine years imprisonment, with parole eligibility set after six years, was substituted.

[22] In Rodd, the applicant was about 30 years old and had a minor criminal history.  He had trafficked in methylamphetamine for a period slightly over two years and had also produced the drug over the same period.  A good deal of his offending had occurred while he was on bail.  He was sentenced to nine years imprisonment with parole eligibility after six years on the trafficking count and seven years imprisonment on the production count.  The applicant had used violence and threats of violence to control those who assisted him in the production process and lived a very extravagant lifestyle.  Although there was a lengthy committal hearing, he had pleaded guilty.  His guilty plea, however, was entered only one and a half weeks before his trial listing, and there had been previous listings and adjournments of the trial.  He was addicted to amphetamines but had stayed drug-free over four years during which he had been on remand.  On the Attorney-General’s appeal against sentence, the court remarked that a sentence as high as 12 to 13 years imprisonment would not have been excessive, but since the appellant contended for no greater sentence than 10 years imprisonment, that term of imprisonment was substituted.

[23] In Kashton, the applicant was sentenced to 10 years imprisonment for trafficking in heroin and methylamphetamine over a period of two and a half years.  The court observed that, apart from his plea of guilty, there was little evidence of any willingness to co-operate in the administration of justice.  Kashton had attempted to evade arrest, had refused to be interviewed by police, had continued to offend on bail, had required two committal proceedings involving the calling of evidence (having been re-arrested after the first was conducted) and had provided no assistance as to the sources of his drugs.  His application for leave to appeal against sentence was refused.

[24] Those cases support a head sentence of 10 or 11 years for trafficking of the proportions in this case.  The applicant did not really resist that proposition.  Instead, he relied on the fact that the notional sentence was only three to four years less than the sentence imposed upon HJ.  The proposed appeal ground was that the sentence was manifestly excessive, not that there was disparity in the treatment of co‑offenders; but the logic was that parity considerations would have dictated a lower starting point for the head sentence, which was a factor underlying the submission that the ultimate sentence was excessive.  It was submitted that the notional head sentence would properly have been set between seven and eight years.

[25] HJ and the applicant were not charged with the same offences; but it is sufficient to attract the application of the parity principle that the charges against the two arose out of the same criminal enterprise.[8]  HJ was certainly dealt with for more serious offending.  There were four counts of trafficking against him, with the relevant drugs including gamma-hydroxybutyric acid as well as methylamphetamine, ecstasy and cannabis.  The period, at least for the trafficking in cannabis, was longer, almost three years in duration.  HJ, who was 32 years old, had been convicted some 10 years previously of drug offences and sentenced to nine months imprisonment, wholly suspended.  The Crown was able to point to his receipt of some $600,000 in unsourced income.  Some of the offending had occurred (as was the case with the present applicant) while HJ was on bail for other offences.

[26] HJ, it was accepted, was a drug user, although the sentencing judge found that his conduct went well beyond that of an addict endeavouring to feed an addiction.  In his favour, he had entered early pleas of guilty and was said to have taken “significant steps” towards rehabilitation.  His application for leave to appeal against sentence was refused.  This court observed that the fact that much of the offending conduct occurred while HJ was on bail for other offences was a seriously aggravating feature which meant that, but for his early pleas of guilty, he could have expected to have received a sentence substantially in excess of 14 years imprisonment.

[27] Putting aside questions of co-operation, I do not consider that a sentence of 10 years imposed on the applicant would have been such as to give rise to a justifiable sense of grievance, when considered against the 14 years HJ was required to serve.  There were obviously features of HJ’s case which rendered his offending worse, (the longer period of trafficking and the additional drug involved) but the criminality involved here, although of lesser dimension, was of a similar kind.  And although his criminal history was more serious, HJ, unlike the applicant, was a drug user who had made some advances in rehabilitation.  Both cases shared the aggravating circumstance of continued offending on bail.  A difference in the sentences no greater than three or four years would, in my view, have been unremarkable.

The applicant’s fear of being harmed

[28] The applicant accepted that the finding that he was not in any greater danger in gaol was properly made.  His complaint was that the sentencing judge had not gone further to take into account his actual fear of being harmed, which would make the service of his sentence more onerous than would be the case for other prisoners.  The judge had not referred in his sentencing remarks to the psychologist’s report.  The sentence should have been further ameliorated to reflect the applicant’s concerns.

[29] I do not think that it is, in fact, accurate to say that the sentencing judge disregarded the applicant’s fear for his safety.  He made a finding that the applicant did have such a concern, but also found that he had exaggerated it.  That was a finding which, having seen the applicant give evidence and having regard to the way that evidence emerged, he was entitled to make.  It was not necessary for the sentencing judge to refer to the psychologist’s report.  His findings were entirely consistent with the opinions expressed in it: that the applicant had a tendency to exaggerate his symptoms, but he had a warranted concern about being imprisoned and was expressing stress and anxiety as a result of his fears.

[30] His Honour explicitly discounted the sentence to reflect not only co-operation but the applicant’s concern about the risks to which he felt he would be exposed.  He also referred more than once to the relevance of the more onerous conditions under which a prisoner at risk would serve his sentence.  Given those statements, it cannot reasonably be said that the sentencing judge overlooked the significance of the applicant’s fear of harm in making his time in custody more onerous.

Fresh evidence

[31] On the hearing of the appeal, the applicant sought to rely on an affidavit sworn by him and another sworn by his girlfriend.  The respondent Crown accepted that those affidavits amounted to fresh evidence, while not conceding their relevance.  The respondent was permitted to file an affidavit in reply by a Corrective Service officer as to steps taken to protect the applicant in prison.  A copy of a posting by the Crime and Misconduct Commission on its website, which set out details of a series of convictions, was also received by consent.  It included an entry relating to the applicant, which said that he had received five years imprisonment after pleading guilty to a number of drug charges involving the trafficking of drugs.

[32] The applicant was sentenced on 18 July 2012 and was then taken into custody.  He deposed that during his first week in gaol, a newspaper clipping of a dog was stuck to his cell door.  In November 2012, he had written a letter to sentence management expressing concerns about his safety, with the result that he was thereafter accompanied by a prison officer in all circumstances.  (The applicant asserted in his affidavit that Corrective Services had taken no steps to follow the sentencing judge’s recommendation to ensure his protection, but that is patently wrong.  It was accepted here that, as was deposed by the deponent of the affidavit filed on behalf of the respondent Crown, the applicant was, in fact, immediately placed in protective custody.)  The applicant said that his girlfriend had told him of threats she had heard, which caused him concern, and he annexed a note emanating from an unknown person in the gaol.  The note, which is typewritten, refers to him as a “dog” and threatens him with a beating.

[33] The applicant’s girlfriend said that in early August 2012, she had been contacted by a connection of the applicant’s, who said that a third person (someone who the applicant alleged had previously threatened him) had contacted him and told him that the applicant had received a non-parole period of two and a half years.  The man who contacted the applicant’s girlfriend said that it was obvious that, to receive such a low sentence, the applicant must have given information to the authorities about others involved in the drug world.  On 4 November 2012, she had received an email to the effect that the applicant would be “fucked” when he came out of protective custody.  On the same day, the Courier Mail had published an article about HJ and his activities which referred to nine of his associates, one of whom was the applicant.  It noted that the applicant had been sentenced to five years imprisonment after pleading guilty to trafficking charges.

[34] The applicant’s girlfriend also annexed to her affidavit a copy of a Facebook discussion she had had with a man who, according to her, was a member of a motorcycle gang.  It alluded to the applicant’s being in protective custody.  (Her readiness to engage in such discussions seems oddly similar to the applicant’s, on which the sentencing judge remarked.)  On an occasion in early December 2012, she deposed, she had been visiting the applicant at the gaol when she noticed a man looking at the applicant as if he recognised him.  The man’s female companion informed her that her boyfriend was going to get his head kicked in.

[35] It was submitted for the applicant that the publications by the Crime and Misconduct Commission and the Courier Mail of his sentence amounted to a breach of s 122(3)(e) of the Drugs Misuse Act 1986, which provides that where a court has adjourned to chambers to determine sentence (as was conceded was effectively done in this case):

“no notice or report relating to the proceedings shall be published and no record of the proceedings (other than the order as to the sentence to be imposed) shall be available for search by a person except by direction of the court...”

The sub-section, on its face, has the odd result that a sentence may be the subject of search; but, it would seem, the result of that search cannot be further communicated.

[36] However, it is neither necessary nor appropriate in the absence of submissions from those who undertook the publication to reach a view as to whether there was any breach of the section.  In any event, from what is in the affidavit from the applicant’s girlfriend, it seems probable that the information about the applicant’s sentence became known independently of those publications.  It was not suggested that the communication the applicant’s girlfriend received in early August came after or was in any way related to the Crime and Misconduct Commission posting (which seems on its face to be a later document) and it certainly pre-dated the Courier Mail article.  The information that the applicant was in protective custody, which would no doubt have contributed to perceptions of the applicant as having co-operated with authorities, could not have been gleaned from either of those sources.

[37] This court has a discretion to receive evidence not before the sentencing judge, if it shows that the sentence in fact imposed was unwarranted, in the sense that it was manifestly excessive.[9]  As the court observed in Maniadis, evidence of events after the date of sentence is unlikely to have that effect unless it sheds light on the true state of affairs at the time the applicant was sentenced.[10]  Here, the sentencing judge had accepted that the applicant was at some risk, although no greater than if he were outside gaol, which was to be addressed by Corrective Services’ taking steps to ensure his protection.  He had also accepted that the applicant had concerns in relation to his safety, albeit somewhat exaggerated.  The facts that the sentence has subsequently been published and that the applicant has received further threats in custody do not cast any different light on that factual sentencing context.  There is no basis for a conclusion that the sentence was excessive for reasons now apparent but unknown to the sentencing judge.

Should a greater discount have been given?

[38] The question remains as to whether the sentence was appropriately reduced to reflect the circumstances of the case.  The applicant submitted that a discount of 60 per cent would have been appropriate for his co-operation, with a further discount reflecting his fears and the greater hardship resulting to him.  The sentencing judge had wrongly had regard to the fact that the discounted sentence meant that the applicant would not be subject to a serious violent offence declaration.

[39] In Gladkowski,[11] this court observed that co-operation with police which involved providing statements to enable the prosecution of others and undertaking to give evidence entitled the offender to a “substantial informer’s discount”, which should take into account the risk of retributive violence against him in gaol:

“[C]o-operation of this kind, particularly where society benefits from it and it places the informer in a position of danger, calls for ‘very substantial discount’. The necessity of encouraging persons to inform so that offenders may be convicted is regarded as a matter of ‘high public policy’. The benefits of such a policy are not likely to ensue without substantial inducement… Discounts of one-third or even one-half of the sentence that would otherwise be appropriate are not uncommon, according to the value and risk of the assistance rendered.”[12] (Citations omitted.)

The court went on to observe that in New South Wales, the discount given had been described as ranging between 20 and 50 per cent, while other decisions recognized the possibility of the discount’s exceeding 50 per cent.  But this note of caution was sounded:

“at the same time the court must ensure that the reduction does not result in a sentence that is an affront to community standards.”[13]

[40] In R v Webber,[14] McMurdo P and Chesterman J made similar comments in relation to the considerations involved in sentencing in such cases:

“a prisoner who provides tangible co-operation in the prosecution of others implicated in the prisoner’s or some other criminal offence should receive a significant reduction in sentence sufficient to afford an inducement to others to provide such co-operation.

Although the discount for co-operation must be discernible, and worthwhile, the adjusted sentence must nevertheless reflect the seriousness of the offence which is being punished. The balance between these competing demands will not always be easy to strike...”[15]

[41] As is apparent from the discussion in Gladkowski, the identification of an appropriate discount is not an arithmetical exercise admitting of a single answer.  And I do not think that the practical effect of the reduced head sentence can be disregarded in the way the applicant suggests.  If the applicant had been sentenced to 10 years imprisonment, as the comparative sentences indicate for offending of the proportions involved, he could have expected to serve eight years before eligibility for parole.  As matters stand, he will be eligible after two and a half years.  That reflects a discount on the non-parole period, as counsel for the respondent pointed out, of more than 70 per cent.  That discount is given in circumstances where the applicant, unlike the applicant in Gladkowski, will not be exposing himself to the risk of giving evidence against others.  The unarguable fact is that he has received a very considerable benefit for a measure of co-operation which, although significant, was not unqualified; recognising also the implications of that co-operation for his well-being.

[42] The resulting sentence was well within a proper exercise of discretion by the sentencing judge.  I would refuse the application for leave to appeal against sentence.

[43] GOTTERSON JA:  I agree with the order proposed by Holmes JA and with the reasons given by her Honour.

[44] PETER LYONS J:  I agree with the reasons of Holmes JA and the order her Honour proposes.