R v Jobsz[2013] QCA 5

SUPREME COURT OF QUEENSLAND

1. CHIEF JUSTICE: On 23 October 2012, following his pleas of guilty, the applicant was sentenced in relation to five offences:  trafficking in cocaine and MDMA “on or about 17 July 2011” (count 1); unlawful possession of more than two grams of each of cocaine and MDMA (the applicant possessed 6.206 grams pure cocaine and 27 MDMA tablets containing 35.612 grams of that drug) (count 2); unlawful possession of a separate quantity of MDMA (.016 grams pure) (count 3); possession of scales, clip seal bags, a spiral notebook and poison (count 4); and possession of cash ($4,250 in his jeans’ pocket) (count 5).  He also pleaded guilty to a summary offence, possession of a spoon, which attracted no separate additional penalty.
2. The learned Judge imposed sentence as follows:

“…in relation to counts 1 to 5, I impose a sentence of four and a half years imprisonment operational for a period of four and a half years, it is to be suspended after you have served 16 months imprisonment”.

3. The applicant contends that the Judge failed to impose separate penalties for the respective offences and thereby erred. Counsel for the applicant relies on R v Crofts [1998] QCA 60, affirming “there is no power to impose a single sentence of imprisonment for a number of different offences”.  In Crofts, the error was patent because the term imposed exceeded the maximum penalty for some of the offences.  That was not the case here.

4. This sentencing Judge would have been alive to the need to impose a penalty in respect of each offence. But it is difficult to read what she said as amounting to the imposition of the term for the counts respectively, and that term would have plainly been excessive for counts 3 to 5 especially, which were clearly much less serious offences than 1 and 2. The applicant must accordingly be re-sentenced.

5. When he committed these offences, the applicant was 25 years of age, a mature age. He was 27 years old when sentenced. He had no prior criminal history.

6. In re-sentencing the applicant, it remains pertinent to have regard to the primary sentencing Judge’s approach, because it may usefully illuminate what should be considered an appropriate penalty to be imposed on the re-sentencing, and in fairness to the Judge, the criticisms advanced at the appeal hearing should briefly be addressed.

7. The applicant was a drug addict, in fact using cocaine when the police arrived to search his apartment on the relevant occasion. He did not participate in a record of interview, and save for his pleas of guilty, did not subsequently cooperate with the authorities.

8. Her Honour acknowledged that the applicant was not just a user of drugs, but a drug addict, and referred to his having undertaken drug and alcohol counselling leading to “substantial changes” in his lifestyle, as borne out by the results of drug testing. Counsel for the applicant contended that the Judge did not give “due weight” to those circumstances. It is clear however that Her Honour was alive to the significance of those matters.

9. Counsel challenged Her Honour’s statement, in her sentencing remarks, that for the trafficking “a period hasn’t been charged”. The charge was trafficking “on or about 17 July 2011”, which does allege a shortish non-specific period. Her Honour was contrasting the situation where a more substantial specified interval is charged. She chose not unreasonably to have primary regard to “the extent of the trafficking business”, and the inferences to be drawn from “the tick list and the value of the drugs found”, notwithstanding the circumscribed period of offending.

10. The tick list contained 23 entries, and the prosecution contended that it supported a conclusion that the applicant was owed some $20,000. That presumably led to Her Honour’s implicit conclusion, not expressly articulated, that this was a not insubstantial operation. While acknowledging Her Honour’s statement that the 59 phone numbers recorded on separate foolscap pages could not “necessarily” be used to reach a conclusion as to the number of customers, that record also was nevertheless of some relevance to an assessment of the scale of the business.  The street value of the cocaine in the applicant’s possession when apprehended was estimated at $6,600, and the MDMA tablets, on the basis they were sold individually, $13,000.  The amount of cash on his person when apprehended, $4,250, the proceeds of drug crime, is a significant indicator of the scale of the trafficking.

11. Counsel for the applicant emphasized that the offence of trafficking related only to the limited period charged. There is nothing in what Her Honour said suggesting that she sentenced for offending over a more substantial period. That would in fact be inconsistent with her previously mentioned concentration on “the extent of the trafficking business”, as being carried on, that is, “on or about 17 July 2011”. That approach to the matter was not erroneous.

12. As to the head sentence, the need for general deterrence in sentencing for this sort of crime must be given appropriate weight: this was, as said, a case of not insubstantial trafficking in two schedule 1 drugs, albeit carried on over a shortish period. In light of R v Taylor [2005] QCA 379 and R v McAway [2008] QCA 401, the four and a half year term imposed by Her Honour fell within an appropriate range.  But as acknowledged by Mr Cash, who appeared for the respondent, it was a high head sentence.

13. Notwithstanding the seriousness of the trafficking, bearing in mind the comparatively short timeframe and the applicant’s personal circumstances, it was not a case calling for a salutorily high sentence. I would, on re-sentencing, where this court exercises its own discretion, impose a head sentence of four years imprisonment.

14. The learned Judge ordered that the four and a half year term she imposed be suspended after 16 months, which was two months short of one-third of the head term.

15. I would suspend the substituted term which I propose of four years, after 12 months. That would recognize, in addition to the applicant’s plea of guilty and lack of previous history, the important feature of his encouraging response to efforts at rehabilitation voluntarily taken. The community has a real interest in that. There is no utility, in that light, of holding the applicant in custody for more than one year.

16. Even with the inherently serious crime of trafficking in schedule 1 drugs, that the offender is driven by addiction can be a mitigating circumstance especially where, as here, there is a genuine effort at rehabilitation which is bearing fruit. The head sentence will primarily address features including deterrence. Setting the point of any suspension provides the opportunity to take particular account of mitigating circumstances such as those pertaining to this applicant.

17. I turn to the remaining counts. For count two, the possession of the substantial quantities of cocaine and MDMA, the applicant should be sentenced to 12 months imprisonment. Count three concerned the possession of a small separate quantity of MDMA, count four the scales, clip seal bags and poison, and count five the cash. I would impose terms of six months imprisonment,  nine months imprisonment, and 12 months imprisonment respectively.

18. I would order that the application and appeal be allowed, and that the applicant be imprisoned:

1. on count 1, for four years suspended after  12 months for an operational period of four years;

2. on count 2, for 12 months;

3. on count 3, for six months;

4. on count 4, for nine months; and

5. on count 5, for 12 months;

and that all terms be served concurrently.

19. WHITE JA: I agree with the reasons of the Chief Justice and his proposed orders.

20. GOTTERSON JA: I agree with the orders proposed by the Chief Justice and with the reasons given by his Honour.