R v Neilson[2014] QCA 221

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  I agree with the reasons of Gotterson JA and the orders he proposes.

[2] GOTTERSON JA:  On 11 March 2014 in the Supreme Court at Brisbane, the applicant, Britt Candice Neilson, pleaded guilty to the following four drug-related counts:

Count 1: Between 30 May 2012 and 12 February 2013, at Brisbane and elsewhere in Queensland, carried on the business of unlawfully trafficking in the dangerous drug methylamphetamine (a Schedule 1 drug);[1]

Count 2: On 21 February 2013, at Pimpama, unlawfully possessed the dangerous drug methylamphetamine;[2]

Count 3: On 21 February 2013, at Pimpama, had scales in her possession that she had used in connection with the commission of the crime of possessing a dangerous drug;[3] and

Count 4: On 21 February 2013, at Pimpama, had a mobile phone in her possession that she had used in connection with the commission of the crime of trafficking in a dangerous drug.[4]

[3] The applicant was convicted and sentenced that day on all counts.  For Count 1, she was sentenced to imprisonment for a period of seven years and six months.  A parole eligibility date at 10 September 2016, that is to say after serving two years and six months, was set.  The other sentences were imprisonment for two years on Count 2 and imprisonment for one year on each of Counts 3 and 4.  All sentences are to be served concurrently.

[4] On 24 March 2014, the applicant filed an application for leave to appeal against sentence.

Circumstances of the offending

[5] The applicant’s offending was detected during police covert operation “Juliet Cheshire” which targeted the sale and distribution of drugs in Fortitude Valley from 1 September 2011.  Two adult males were identified.  They were Hortz and Kuzmanovic, the former of whom was in both a domestic relationship with the applicant and a business partnership with her.  The business of the partnership was wholesale trafficking in methylamphetamine.  The partnership had commenced in May 2012, each bringing to it knowledge of the drug trade.  It was a partnership of equals.  The applicant’s work in it involved sourcing drugs, meeting with customers to supply drugs and collect debts, taking telephone calls from customers and managing the funds.

[6] The applicant and Hortz terminated both relationships in September 2012.  Thereafter, the applicant carried on what had been the partnership business in her own right until February 2013.  She supplied not insignificant quantities of methylamphetamine to Hortz.  Hortz was arrested in October 2012.

[7] The nature and extent of both the business and the applicant’s participation in it was revealed by intercepts of telephone conversations in which Hortz or Kuzmanovic were participants.  There were 160 drug-related intercepted telephone calls involving the applicant between 16 July 2012 and 11 February 2013.  It was further revealed by some six controlled drug supplies involving the applicant and certain Law Enforcement Participants (“LEPs”).

[8] The business functioned at what might be described as an intermediate level, between larger-quantity wholesale suppliers on the one hand, and those who supplied street dealers directly on the other.  The applicant sourced wholesale quantities of methylamphetamine from at least five suppliers, with Kuzmanovic being the main source.  The quantity sourced varied from points to ounces.

[9] In the case of the controlled supplies, the applicant sourced the drug from her supplier, usually in a quantity in excess of the amount ordered by the LEP, and then on-supplied the ordered amount to the LEP.  The quantities supplied were from one-quarter to one-half an ounce and ranged in purity from 62.3 per cent to 75.5 per cent.  A total of $31,200 was exchanged between the applicant and the LEPs for the supply of some 44.469 grams of methylamphetamine.

[10] In a number of ways, the applicant displayed significant entrepreneurial flair.  There was a sales pitch to her promotion of the product.  She made efforts to control its quality.  She engaged in product testing.  She negotiated price and explored better and more reliable sources of supply.

[11] The applicant was also adroit in deploying tactics not untypical of businesses of this kind.  She hired physical protection to facilitate the running of the business.  She and Hortz used debt recovery techniques that extended to a demand made for payment with the menace of a sawn-off shotgun, and an assault occasioning bodily harm carried out, by a hired hand.  She strove to avoid detection by regularly changing places of residence and mobile phones, and by using public telephones and coded conversations.

[12] The applicant continued with the business notwithstanding the arrest of Hortz.  In fact, four of the six transactions with the LEPs occurred after his arrest, the last of them on 13 December 2012.  It was said on her behalf at the hearing of the application, that she did so in order to pay off then outstanding debts to suppliers and to finance her continuing drug habit.

[13] On 21 February 2013, police executed a search warrant at the applicant’s residence at Pimpama.  There they located the drugs, scales and the mobile phone which were the subjects of Counts 2, 3 and 4 respectively.

Applicant’s personal circumstances

[14] The applicant was 25 and 26 years of age at the time of the offending.  She was 27 years of age at sentence.  The applicant met Hortz just before her father was diagnosed with cancer in 2005.  They formed a relationship.  Her father, to whom she was very close, died in the following August.  She, her parents and her siblings were a hardworking and close family with business interests involving horses.

[15] The applicant did not cope well with her father’s death.  The relationship with Hortz was an “on and off” one.  She continued employment with successive management positions, one of them at a catering business.  Through that position, she met another male with whom she formed a relationship.  Both he and Hortz were described at sentence as “very controlling” individuals.

[16] The applicant and the other male were hard workers.  They bought a house at Marsden and then some vacant land at Augustine Heights.  They became parents to a son who, at sentence, was nearly five years old.  One evening, the applicant discovered that her then partner was leading a “double life”.  She left the house and the relationship with her son the next morning.  Again, she did not cope well.  She required medication and counselling.  At that time she was working as a cleaner and was not a drug user.

[17] Hortz tracked her down through Facebook.  They met up.  She visited his house where he and others began smoking cannabis.  She participated.  He then introduced her to smoking  “ice” (methylamphetamine).  It provided her with some relief from the stresses of her life, including persistence from her former partner.  She became addicted to the drug.  Soon she was using a gram a day at a daily cost of $600.  She could not afford her habit.  She gave up her employment and became involved in the drug trade.  In due course she and Hortz formed the partnership to which I have referred.

[18] Prior to the subject offending, the applicant had no criminal history.

Applicant’s prospects of rehabilitation

[19] Once charged, the applicant sought the assistance of Drug Arm Australasia.  A report from that organisation dated 24 February 2014 and tendered at sentence, stated that she had participated in its Community and Family Support Service program from 2 May 2013.  She had attended 18 sessions and had completed a treatment plan and identified goals she would like to achieve.  During that time, the applicant had been drug-abstinent and, at the date of the report, was showing clear signs of remaining abstinent.[5]  A separate report from her counsellor at Drug Arm Australasia spoke very positively of her progress through the program.

[20] At the sentence hearing, references from the applicant’s mother, her sister and others with recent knowledge of her were tendered.  They painted a picture of someone who had made considerable progress in getting her life back on track and who was capable of making responsible decisions towards a positive future for herself and her son.

Matters considered by the learned sentencing judge

[21] The aspects of the applicant’s offending and personal life to which I have referred were put before the learned sentencing judge.  It is evident from the sentencing remarks that he had regard to them.  He said that he also took into account the applicant’s absence of a criminal record and her early plea, noting that her cooperation did not extend beyond that.

[22] As to rehabilitation, his Honour observed:

“ … I’ve received material from Drug Screen and it is evidence of a capacity to rehabilitate, but I note that you only went there after your arrest, and that you were trafficking up until your arrest. You have in October last year and January this year had negative drug screens.”[6]

A little later, he said:

“It has been put to me that you have good prospects of rehabilitation. I will accept that on the basis it was put to me. You have a four and a half year old son, and he is going to be deprived of your company for some time.”[7]

Grounds of appeal

[23] The applicant advances two grounds of appeal against sentence.  They are:

(i) that the sentence is manifestly excessive; and

(ii) that the learned sentencing judge failed to give appropriate weight to the applicant’s rehabilitation.

[24] At the hearing of the application, the applicant’s counsel advanced arguments in support of an overall submission that the sentence that ought to have been imposed was between five and six years’ imprisonment and that the applicant ought to be eligible for parole after having served a period of 18 months or two years’ imprisonment.

[25] The arguments advanced for the applicant proceeded upon the correct footing that in order to succeed on the application, it was necessary for the applicant to show error on the part of the learned sentencing judge of a kind described in House v The King.[8]  Here, it was submitted that the error was one to be inferred, namely, that upon the facts, the sentence is unreasonable or plainly unjust as to give rise to an inference of failure properly to exercise the sentencing discretion.

[26] In oral submissions, counsel for the applicant melded the two grounds of appeal.  It was put by him that the sentence is manifestly excessive, that is to say plainly unjust, having regard to sentences imposed in comparable cases and to the circumstances of the applicant’s rehabilitation as demonstrated by her drug abstinence and redirected life, and her responsibilities for her dependent son.  That approach was an appropriate one given that the second of the above grounds is not capable, of itself, of constituting error of a House kind.[9]

[27] I mention at this point that in written submissions, the respondent contended that this case was one apt for the application of the approach applied in R v Frame.[10]  Before the learned sentencing judge, the applicant’s counsel had put his primary submission as that his Honour “might consider a sentence of seven years, with parole after 18 months”.[11]  That, it was argued, invoked the approach in Frame with the consequence for this application, that the applicant was bound by the conduct of her counsel below, there being no special circumstances for that not to be so.

[28] The approach applied in Frame is this:

“ … [B]ecause a party is ordinarily bound by the conduct of his case at first instance, the circumstance that the sentence imposed on an applicant for leave to appeal accords with the submissions made on behalf of the applicant to the learned sentencing judge is an obstacle to an argument that the sentence imposed was manifestly excessive.”[12]

As can be seen, this approach finds application where the sentence imposed accords with submissions made on behalf of the person being sentenced.  Here, that did not happen.  Both the sentence and the time to be served before eligibility for parole that were actually imposed exceeded those for which submissions had been made on behalf of the applicant.  I therefore reject the respondent’s contention.

Consideration

[29] In support of his proposition that the sentence was not consonant with comparable sentences, counsel for the applicant supplied the court with a schedule of sentences imposed in some 16 drug trafficking cases, the most severe sentence being eight years imprisonment with parole eligibility after serving two years and eight months, and the least severe sentence being four and a half years’ imprisonment with parole eligibility after serving nine months.  The cases spanned trafficking in different drugs, in different quantities and with different levels of intensity of participation by the offenders.  As well, significantly different personal circumstances were involved.  The schedule reflects the truism that no one sentence is the correct sentence for a particular set of offending and personal circumstances.

[30] The cases in the schedule, taken as a whole, do not give rise to an inference that the sentence here was significantly “out of kilter”.  An enquiry as to whether that is so is better undertaken by reference to particular sentences where all of the circumstances more proximately resemble those of the applicant’s case.  Counsel for the applicant identified two of the cases in the schedule as within that category.  They are R v Cottle-Pilides[13] and R v Clarke; ex-parte Attorney-General (Queensland).[14]

[31] The offender in Cottle-Pilides was 25 and then 26 years old when offending.  She had a five year old child whose father was in jail.  She had an extensive and relevant criminal history and history of drug addiction.  A motor vehicle accident in 2004 had left her with some permanent impairment of her lower limb function.  The offender pleaded guilty to trafficking in heroin over a five month period.  Her trafficking was at a street level, supplying a range of customers who would make multiple purchases from her.  She was sentenced to six years imprisonment with a parole eligibility date after serving two years.

[32] In Clarke, the offender was a 23 year old female with a five year old dependent child.  She was found guilty of drug trafficking at a trial.  The offender had previous convictions for possession of cannabis.  Her trafficking extended over a seven month period and involved both heroin and cannabis.  It was carried on with her male partner.  The offender travelled to Sydney to collect the drugs which were supplied to a single customer in Central Queensland.  Deals involving 60 grams of heroin with a resale value of between $80,000 and $100,000 were transacted in this period.  On an Attorney-General’s appeal, her sentence was varied to one of five years’ imprisonment with a recommendation for parole eligibility after 18 months.

[33] A third case in the schedule was identified by counsel for the respondent as closely comparable.  It is R v Taylor.[15]  The offender in that case was a 21 year old male.  He, too, was drug-addicted.  He pleaded guilty to trafficking in cocaine, MDMA and MDA over a period of three months.  His trafficking was at a wholesale level.  He made sales of one ounce of cocaine at prices ranging from $5,000 to $6,000 to an undercover police officer.  In total, he was paid $38,500 by the police operative.  The offender was sentenced to imprisonment for seven years and four months.  No recommendation for parole eligibility at a date earlier than one-half of the sentence of the sentence was made.  On appeal, it was held that insufficient recognition had been given to the circumstance that the offender “was a young man who had taken important steps towards rehabilitation”.[16]  It was held that, as a consequence, the sentence was manifestly excessive in that an earlier parole eligibility date had not been set.  The sentence was varied to provide for parole eligibility after serving two and a half years in prison.

[34] I would mention also a further case in the schedule to which the learned sentencing judge referred.  It is R v Barton.[17]  There, the offender was a 24 year old female who, like the applicant, had made impressive attempts at rehabilitation.  In her case, that had occurred since the birth of her baby daughter.  The offender was drug-addicted and had a minor drug offending history.  She pleaded guilty to trafficking over a period of 10 weeks in methylamphetamine.  She sold 26.608 grams of the pure substance for $14,700.  Some of the offences were committed when she was on bail.  She was sentenced to seven years’ imprisonment with parole eligibility after serving two years and three months.  On appeal, the sentence was varied to parole eligibility after serving 18 months on the basis that the recommendation that had been made did not “adequately recognize the applicant’s impressive and apparently successful efforts at rehabilitation”.[18]

[35] The applicant’s trafficking was at a higher level and extended over a longer period than that of the offenders in Cottle-Pilides and Clarke.  It had the additional element of debt recovery by criminal means.  It was of a similar scale to that in Taylor but over a longer period.  As the learned sentencing judge remarked, the offending in Barton was for a much shorter period.  When these sentences are taken into account, it cannot be said, in my view, that imprisonment for seven years and six months for the applicant’s offending rendered the sentence manifestly excessive.

[36] There is a second aspect to the sentence that warrants consideration.  It is whether the sentence is manifestly excessive in that the applicant must serve two years and six months before becoming eligible for parole.

[37] In both Taylor and Barton, significant progress in rehabilitation was viewed by this Court as a matter of relevance particularly to the time to be served in order to become eligible for parole.  Here, the learned sentencing judge did avert to the negative results of the applicant’s drug testing.  He also acknowledged that she had good prospects of rehabilitation and that her son would be deprived of her company for some time.  These all were matters to be considered and also to be reflected in fixing the parole eligibility date.

[38] The applicant’s rehabilitation in both her drug abstinence and redirection of her personal life is impressive and warrants meaningful reflection in her parole eligibility.  I have come to the conclusion that that did not occur here given that her plea of guilty and responsibility towards her child were also to be taken into account for this purpose.  I consider that the parole eligibility date fixed here renders the sentence manifestly excessive.  I would substitute for it a parole eligibility date after serving two years’ imprisonment, that is, at 10 March 2016.

Orders

[39] I would propose the following orders:

1. Application for leave to appeal against sentence granted.

2. Appeal against sentence allowed.

3. Vary the sentence imposed by fixing a parole eligibility date at 10 March 2016.

4. Otherwise confirm the sentence under appeal.

[40] ALAN WILSON J:  I agree with Gotterson JA’s reasons, and with the orders his Honour proposes.