R v Leathers[2014] QCA 327

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  I have had the advantage of reading the reasons for judgment of Gotterson JA.  I agree with those reasons and with the order proposed by his Honour.

2. GOTTERSON JA:  On 15 September 2014 at the Supreme Court in Townsville, the applicant, Hale Nathan Leathers, pleaded guilty to a single count in that between 1 April 2011 and 19 October 2011 at Townsville and elsewhere in Queensland, he carried on the business of unlawfully trafficking in the dangerous drug, cannabis.  The count alleged that the applicant had thereby offended against s 5 of the Drugs Misuse Act 1986 (Qld).

3. The applicant was sentenced to three years’ imprisonment to be suspended after serving six months with an operational period of three years. On 14 October 2014, the applicant filed an application for leave to appeal to this Court against the sentence.

4. The applicant’s de facto partner, Elvina Fay Illin, was charged in the same indictment on a separate but similar trafficking count. In her case, the period of offending was over a shorter period between 1 April 2011 and 13 July 2011. On 15 September 2014, she pleaded guilty to that count and also to three summary charges to possession of cannabis and things used in connection with her possession and use of cannabis.  Upon conviction, she was sentenced on the trafficking count to two years’ imprisonment to be suspended after serving two months with an operational period of two years.  She was convicted but not further punished upon the three summary charges.  Her sentence of imprisonment was varied on appeal by this Court on 24 October 2014.^[1]  The variation decreased the period after which her sentence of imprisonment was suspended from two months to 40 days.

Circumstances of the offending

5. A Schedule of Facts^[2] tendered at the sentence hearing revealed that for a period of about six and a half months, the applicant trafficked in cannabis as a street-level dealer.  He acquired the drug from a wholesaler who also supplied up to fourteen other persons who acted as either couriers and/or on-suppliers.  The applicant and Ms Illin operated independently of those others.

6. The applicant declined to give an interview to police. Thus the manner and scale of his trafficking had to be inferred from telephone intercepts, surveillance and evidence seized on a search of his residence. The applicant’s trafficking enterprise continued until the wholesaler’s operation was closed by the police.

7. Telephone interception and surveillance evidence summarised in the Schedule of Facts showed that on 13 occasions within the period, the applicant either purchased substantial quantities of cannabis or made payments of cash to his wholesale supplier. Eight of those occasions involved a purchase. Codes were used in the communications.  The quantity of cannabis purchased on each of the eight occasions was not always evident.  However, for three separate purchases negotiated or transacted on 8 July, 20 August and 3 September 2011, the quantities involved could be determined.  Under arrangements made or carried out on those occasions, the applicant or Ms Illin took or was to take possession of three pounds, two pounds and two pounds of cannabis respectively.^[3]  During a telephone conversation on 21 September 2011 relating to a further purchase, the wholesaler said to the applicant: “we’ll do the same job we usually do”.^[4]

8. The Schedule of Facts portrayed the applicant as having been an active participant in the enterprise arrived on by him and Ms Illin. At times, he initiated contact with the wholesaler in order to make purchases.^[5]  He travelled to Alligator Creek swimming hole and bushland locations north of Townsville in order to take delivery of drugs or to meet the wholesaler.^[6]

9. A “tick list” was located at the applicant’s residence at the time of his arrest on 18 October 2011.  It had names or initials and numbers on it.  The numbers appeared to relate to both quantities of cannabis and amounts of money.  The number “1400” against certain initials was an apparent reference to an amount of $1,400.  The sum of $1,780 in cash was found at the applicant’s residence.  Other indicia of the commercial on-supply of cannabis were found.  They included clip seal bags, a heat-sealing machine, scales and a mobile phone registered in a false name.  This was the phone that the applicant had used to communicate with the wholesaler.

10. The quantity of cannabis purchased and on-sold by the applicant is unknown. Based on the quantities transacted on the three occasions for which there are records, an estimate of not less than 16 pounds and a probable range of 16 to 20 pounds can fairly be made.

11. The applicant was not a drug user himself. Ms Illin had a long term cannabis addiction. The profit derived from their trafficking was used, or substantially used, to fund her drug addiction.

Applicant’s personal circumstances

12. The applicant was 41 years old at the time of the offending. He had no previous criminal history of any significance prior to the offending. The applicant had not re-offended in the three year period from his arrest until the date of sentence. Some five character references attesting that the applicant was a good father and respected peer in his community were tendered at sentence.^[7]

13. Neither the applicant nor Ms Illin were employed during the period of the offending. At the time of sentence they had the full-time care of eight children aged between two and 12 years of age. It was accepted on sentence that the applicant and Ms Illin lived in modest circumstances.

Sentencing remarks

14. The sentencing judge summarised the circumstances of the offending by the applicant and Ms Illin. He noted the personal circumstances of the applicant and referred to the character references, the applicant’s otherwise good character and his remorse. His Honour said that he accepted and acted “on the basis that, for both offenders, the sentences should reflect a significant discount for the utilitarian value of their pleas of guilty and their level of cooperation, as well as their personal factors, including their parenthood, in addition to the established range and parity considerations and the purposes and principles of sentencing, calling for punishment, deterrence, denunciation and rehabilitation.”^[8]  After some consideration, he concluded that it was relevant to have regard to the best interests of the children.^[9]

15. Reference was made by the sentencing judge to sentences imposed on other offenders, including three who had been supplied by the same wholesaler, namely, Roberts, Eves and Burton.^[10]  He adverted to the statement of principle in R v Dowel; Ex parte Attorney-General (Qld)^[11] on which counsel for the applicant at sentence had based a submission for a wholly suspended sentence:

“… [E]ven in drug trafficking cases there is no inflexible rule necessitating the imposition of a custodial sentence.  Each sentence must be imposed by reference to the facts of the case in light of the relevant statutory requirements, sentencing principles and standards derived from statute, decided cases and comparable sentencing decisions.”

His Honour stated that he would approach the sentencing task on the basis of those principles.^[12]

16. The sentencing judge summarised the arguments put by the applicant’s counsel in support of that submission in the following way:

“It was submitted that Burton was distinguishable because it involved much larger sums of money and that Roberts was materially indistinguishable, meaning that the parity requirement should result in a noncustodial sentence for (the applicant).  In support of that submission, the following factors were identified as justifying a wholly suspended sentence: early plea; delay in the sentencing hearing of over three years, during with the offender has been of good behaviour and demonstrated rehabilitation and an unlikelihood of re-offending; he has suffered the uncertainty and disruption that the pressure of awaiting sentence involves; and that there was no commercial element in his sales of drugs, which was to fund his wife’s habit.  However, while little profit may have been made and no tangible material benefit is evident, selling retail from wholesale purchases and reinvesting the proceeds in business are commercial elements.”^[13]

17. His Honour concluded his sentencing remarks as they related to the applicant in the following terms:

“In these circumstances, having regard to what I regard as the higher degree of fault, longer period of offending and the lack of drug dependence, despite no criminal history of any significance, that a just punishment for (the applicant), in the circumstances, is imprisonment for three years, suspended after six months, for three years…”^[14]

Grounds of appeal

18. At the hearing of the application for leave to appeal, the applicant sought and was granted leave to amend the grounds of appeal against sentence. So amended, those grounds are:

“1.The sentence was manifestly excessive.

2. The learned sentencing judge erred by failing to adequately take into account the applicant’s rehabilitation during the period of time between the applicant being charged and the day of sentence.

3. The learned sentencing judge erred by failing to give adequate weight to the absence of financial gain to the applicant from the offending.

4. The learned sentencing judge erred by failing to take into account that considerations of deterrence, general and personal, did not require the imposition of sentence of actual imprisonment.

5. The learned sentencing judge erred by failing to apply the “parity principle” or the principle of equal justice as between other offenders who purchased illegal drugs from the same distributor.”

19. Counsel for the applicant addressed the Court first on Ground 5. It is convenient to deal with that ground then Grounds, 2, 3 and 4 which focus upon specific matters and lastly, the more encompassing Ground 1.

Ground 5

20. This ground is the first leg in a submission renewed on this application in support of a wholly suspended sentence for the applicant. It invites this Court to adopt an approach which was taken by the Court of Appeal of Victoria in Farrugia v R^[15] in extending the field of application of the parity principle in sentencing beyond co-offenders in the sense of persons who commit different offences in the course of participating in a common criminal enterprise.  The extension sought is to persons who have trafficked in drugs at street level and have purchased their supplies from the same wholesale supplier.  The second leg in the submission is undertaken with reference to the sentences given in Roberts, Eves and Burton respectively.  It was submitted that the applicant’s offending bore close similarities with that of the offender in Roberts; that the punishment for the offender in that case was imprisonment for two years wholly suspended; and that the parity principle therefore required that the applicant’s sentence be a term of imprisonment that is wholly suspended.

21. In Farrugia, their Honours made the following observations by way of comparison between, on the one hand, consistency in sentencing by reference to comparable sentences and, on the other, the parity principle:

“26… While the general principle of consistency of sentencing is achieved by a consideration of comparable cases which inform the range of sentences applicable,^[16] the essential and different characteristic of the parity principle requires the alteration of one sentence to conform with that of a related offender.^[17]  But there will be circumstances in which the principles of consistency and parity become so closely related that the principles of equal justice may dictate that the sentence under question should be brought into line, or more closely conform, with the sentence imposed on an offender for a related crime.^[18]  Such reasoning need not be confined to co-offenders or a common criminal enterprise.  Once one has regard to the purposes of sentencing, automatic consequences need not necessarily follow from the presence or absence of particular factual circumstances.  The discretionary decision must be made in light of the circumstances of the individual case.^[19]

27If there are offenders whose offending is very similar and is in some way related, the sentence imposed on one offender may be a relevant factor to take into account in the exercise of the sentencing discretion for the other.  The connection between the offenders may not fit within the rubric of a common criminal enterprise.  Their offending may involve the same victim or the same subject matter, or there be some other connection.  The weight to be attributed to the sentence which is the subject of comparison will depend upon such things as the nexus between the offenders, the degree of similarity between their conduct, and factors personal to each offender.  Depending on those circumstances, the principle of equal justice may require a sentencing judge to give the specific sentence imposed on the other offender substantial weight.”

22. As Fraser JA observed in Illin,^[20] this Court has held in R v AAH & AAG^[21] that the parity principle applies only as between co-offenders in the sense described above.  To adopt the approach taken in Farrugia would require an enlargement of the field of application of the parity principle beyond that set in AAH & AAG.

23. For reasons which I shall explain, I do not consider it necessary or appropriate in this case to take up the applicant’s invitation and consider whether the Farrugia extension ought to be applied in Queensland.  These reasons have to do with both the unusual factual circumstances in Farrugia and anomalies in applying the parity principle in this case were it held to be applicable to it by extension.

24. In Farrugia, the parity principle was applied by the Victorian Court of Appeal to the offending of two brothers.  They had been sentenced on the same day by the same judge.  The offending of the appellant brother was outlined by the court as follows:

“3… The victim of all of the offences was one PG, a man introduced to the appellant (and his brother Matthew) by the appellant’s father.  On five occasions between 16 February 2006 and 27 September 2007 the appellant robbed PG of his ATM card and withdrew various amounts from ATMs and, on one occasion, used the card to pay for a taxi.  The total amount stolen over these five occasions was $3935.70, and this was the conduct the subject of count 1.  The sentencing judge acted upon the victim’s statement that the appellant would raise his voice, yell at him, make threatening gestures with a clenched fist and raise his arms as though he was going to hit him.

4On 7 March 2007 the appellant forced PG to accompany him on a drive from Avenel and Seymour and back in the middle of the night.  This is the conduct the subject of count 2.  In the course of the false imprisonment, the appellant forced PG to hand over his ATM card and the appellant made six withdrawals at Seymour, totalling $900.  This was the conduct the subject of count 3. …”

25. The rather remarkable coincidence in victim and the type of offending against him by the brother Matthew was summarized this way:

“5… Matthew Farrugia had robbed PG numerous times between 11 June 2002 and 26 April 2007.  These incidents of robbery were separate from those committed by the appellant.  Matthew pleaded guilty to one rolled up count of robbery which represented 18 occasions on which he had gone to PG’s home and forced him to give him cheques, totalling $142,000.  The victim had described the threats and intimidation of Matthew in identical terms to that of the appellant.  Matthew also pleaded guilty to a count of armed robbery when, within the same period covered by the rolled up count, he threatened PG with a meat cleaver before taking five cheques from him.  He pleaded guilty also to one count of indecent assault during the same period when he ordered PG to take his clothes off and took photos of the complainant naked which he threatened to, and did, distribute to businesses in the local area accompanied by assertions as to the victim’s sexual proclivities.”

26. The coincidences in victim and type of offending against him in Farrugia stand in stark contrast with victim-less offending committed by offenders independently of each other.  Here, Roberts, Eves, Burton, the applicant and others, though supplied by the same wholesaler, were not co-offenders.  The identity of the wholesaler was not critical to their offending by trafficking at street level.  The fact that there was a commonality of wholesale supplier was not an element of their respective offending.

27. It may be acknowledged that in Farrugia their Honours stated that the parity principle had not uncommonly been applied by Victorian courts to multiple street traffickers and distributors who had dealt with the same supplier.  That statement is in the nature of an observation of what courts sometimes have done.  As I read it, the statement was not intended to be taken as a statement of legal principle to the effect that the parity principle is to be applied universally in sentencing street-level drug traffickers who have been supplied by the same wholesaler.

28. I now turn to the circumstances in Roberts, Eves and Burton in order to illustrate the anomalies in application of the parity principle were it to be held to apply in sentencing the applicant.  All of these sentences were imposed upon pleas of guilty.

29. In Roberts, the street-level trafficking took place over five months.  The offender supplied at “the lower level” to “only a handful of people” who were known to him.  At least 10 pounds of cannabis were acquired by him for on-supply.  The offender made no significant financial gains from the enterprise.  He had ceased his involvement in it of his own volition several months before his participation was detected.  He was 31 years old and had an excellent work history which had continued up to sentence.  His employer indicated that his job would be held open for him.  This offender was sentenced to two years’ imprisonment wholly suspended for an operational period of two years.

30. In Eves, the offender entered an early plea to offending, sometimes in methylamphetamine but more frequently in cannabis.  It was accepted at sentence that this offender was a “relatively low-level street dealer”.  Some $7,670 was found in her possession on arrest.  The offender was a woman of “mature years”.  She was otherwise of good character.  A matter of concern to the sentencing judge was that subsequent to the charged offending which occurred over eight months in 2011, there had been an incident of re-offending in 2013.  The offender had undergone some counselling and had co-operated with a drug diversion order.  This offender was sentenced to three years’ imprisonment to be suspended after serving six months with an operational period of three years.

31. In Burton, the offender was 35 years old at the time of the offending.  He himself used cannabis on a self-medication basis to combat continuing pain from significant injuries sustained in an accident.  He had taken steps to regress his drug use.  It was alleged that he had paid $42,500 for the drugs which he on-supplied.  His trafficking was over a period of seven months.  He had prior convictions some 15 years earlier for possession of cannabis and utensils.  He was the father of a young daughter for whom he had custodial responsibilities.  This offender was sentenced to three and a half years’ imprisonment to be suspended after nine months with an operational period of five years.

32. Significantly different sentences were imposed in these cases at different times and in different courts. Importantly, the actual period of imprisonment to be served varied from no time in the case of Roberts to nine months in the case of Burton.

33. A perusal of the sentencing remarks in these three cases reveals that those sentences were not imposed with an eye to conscious adherence to the parity principle as between those offenders. The sentencing remarks for each of the sentences imposed after Burton do not refer to the principle.  They do not refer to Burton or, in the case of those for Roberts, to Eves.  Moreover, those sentences do not display a gradation of severity of penalty so far as it relates to actual time to be served which is closely related to the extent of each offender’s trafficking activity.  The differences in the sentences are largely attributable to other factors, including personal factors.  None of this is remarkable given the lack of common features in the respective offending.  In these circumstances, it would, in my view be anomalous, if not futile, to attempt to apply the parity principle here by referring to a number of sentences which were not set, as between themselves, with that principle in mind.

34. Faced with that anomaly, counsel for the applicant undertook an exercise in which he sought to place the offending and personal circumstances of the applicant on an equal footing with those of the offender in Roberts and to put to one side as distinctly worse, those of the offenders in Eves and Burton.  The exercise became one in which, for parity purposes, the sentence in Roberts was put forward as a singular point of reference strongly indicating an equivalent sentence in the applicant’s case.

35. To focus upon one sentence and discard others in this way is, arguably, anomalous in itself. However that may be, the exercise is nevertheless flawed at a factual level. The offending and personal circumstances of the offender in Roberts are not closely comparable with those of the applicant.  In Roberts, the offending was over a shorter period; the offender had ceased trafficking voluntarily some months before his participation was detected; and he had an excellent employment history with a job waiting for him.  None of these mitigating factors were present in the applicant’s case.

36. For these reasons, this ground of appeal has not been established. I would conclude discussion of this ground with the following observations. The sentencing judge did refer to the parity principle and in a way which would indicate that he thought that it applied as between street dealers supplied by the same wholesaler.^[22]  However, a number of features of the sentencing remarks reveal that he did not, in fact, apply the principle.  He had regard to sentences imposed on a range of offenders who had not been supplied by the same wholesaler as the applicant, Roberts, Eves and Burton had been supplied and, significantly, he did not undertake an exercise by which he sought to achieve parity between the sentence he was about to impose and those imposed in Roberts, Eves and Burton.  The exercise in which his Honour did engage was, in substance, a conventional one in which comparable cases are reviewed.

Grounds 2 and 3

37. Grounds 2 and 3 are expressed in terms of error by failing to “adequately take into account” or give “adequate weight to” a particular sentencing consideration. Such a formulation of a ground of appeal involves a concession that the sentencing judge did have regard to the particular consideration.  The complaint, as formulated, goes to the weight attributed to the consideration by the sentencing judge.  It is not a complaint that the consideration was not taken into account.  A complaint going to weight only is not one of legal error in a House v The King^[23] sense such as would render the exercise of the sentencing discretion legally flawed.

38. Aside from this deficiency, the complaint itself in Ground 2 is not established, in my view. The rehabilitation to which this ground is addressed is the absence of re-offending and of good behaviour on the applicant’s part over the comparatively long period between his arrest and sentence. His Honour noted the submission made on behalf of the applicant concerning these matters. He evidently took them into account and had meaningful regard to them in sentencing the applicant. A sharp contrast can be drawn with the rehabilitation in the case of Ms Illin who was re-sentenced by this Court on the footing that she gave up cannabis on her arrest and did not use it, or otherwise offend, during the three years up to her sentence hearing.^[24]

39. As well, as to Ground 3, his Honour noted the submission, and apparently accepted that there was no commercial element in the sense of profit-making in order to support a comfortable lifestyle, in the applicant’s offending. He had meaningful regard to this factor, too, in sentencing the applicant.

40. These grounds of appeal cannot succeed.

Ground 4

41. This ground of appeal cannot succeed either. In adverting to the passage in Dowel set out in the sentencing remarks, the sentencing judge had evident regard for the principle that the imposition of a custodial sentence is not an imperative for every trafficking case.  This ground, so formulated, appears to imply that his Honour sentenced on a footing that considerations of deterrence, general and personal, necessitated a sentence of imprisonment in this case.  There is nothing in the sentencing remarks which suggest that that was so.  His Honour’s concluding remarks indicate that the applicant’s higher degree of culpability, longer period of offending and lack of drug dependence were primary considerations in fixing the period of imprisonment actually to be served.

Ground 1

42. The grounds of appeal already discussed contained contentions of errors of legal principle on the part of the sentencing judge.  By contrast, Ground 1 is not referenced to any particular error of principle or overlooked material consideration.  Thus, in order to succeed on it, the applicant must demonstrate that the sentence imposed on him is “unreasonable or plainly unjust” in order to establish that the exercise of the sentencing discretion is vitiated by legal error.^[25]  A marked difference between a particular sentence and those imposed for comparable offending does not of itself establish that the sentence is manifestly excessive.^[26]

43. In written submissions, counsel for the applicant submits that a sentence of two to three years’ imprisonment is appropriate here.^[27]  There is therefore no submission that the period of imprisonment of three years is manifestly excessive.  The applicant’s case is that the actual period of imprisonment of six months that he is to serve before suspension renders the sentence manifestly excessive.

44. Is the applicant’s sentence manifestly excessive on that account? Having considered the sentences in comparable cases, I have concluded that it is not.

45. I have referred to aspects of Roberts favourable to the offender which distinguish it from the applicant’s case.  It may fairly be said that there are aspects of Eves less favourable to that offender, namely, her dealing in two drugs and her re-offending, which are not features of the applicant’s case.  The applicant’s offending was roughly comparable with that of the offender in Burton.  He would have had to pay his wholesaler not less than the amount Burton paid in order to acquire the estimated total quantity of cannabis trafficked by him.^[28]  In an analytical framework where these three sentences are considered for comparative purposes, the applicant’s sentence which requires him to serve six months’ imprisonment is not shown to be disproportionate, let alone disproportionate to such a degree as might bespeak unreasonableness or plain injustice.

46. A similar outcome results when the framework is expanded to include comparable sentences recently reviewed by this Court. In R v Cairns,^[29] the circumstances of offending were as follows:

“On five occasions the applicant and his father sold cannabis to a covert police officer.  The total weight of the cannabis in those transactions was about nine pounds and at the business premises of the applicant and his father the police found another ten pounds ready for delivery under arrangements that had been made with the officer.  The total price paid by the covert police officer for the cannabis was $19,600, out of which the applicant made a profit of about $1,000.  The evidence revealed that the applicant and his father had other customers.  The applicant possessed white powder which included 0.76 grams of pure MDMA for his personal use.”^[30]

47. Thus, the quantity of cannabis transacted was comparable to that in this case. The offender’s personal circumstances were similar in that he was otherwise of good character and participated in voluntary community work. The 33 year old male offender had a criminal history which largely comprised minor offences committed many years earlier. He was sentenced on a plea of guilty to four years’ imprisonment with a parole eligibility date after serving 16 months. His application for leave to appeal his sentence was refused.

48. In R v Barratt,^[31] the 52 year old female offender pleaded guilty to a count of commercial possession of seven pounds of cannabis.  She had a drug offending history arising from two counts both of which involved possession of cannabis.  This offender had very significant mental health issues.  She, too, was otherwise of good character and had participated in voluntary community work.  She was sentenced to 18 months’ imprisonment to be suspended after serving six months with an operational period of three years.  Her application for leave to appeal the sentence was refused.

49. For these reasons, this ground of appeal also fails.

Disposition and order

50. As none of the grounds of appeal have succeeded, it is appropriate that leave to appeal against sentence be refused. I would propose the following order:

1. Application for leave to appeal against sentence refused.

51. MORRISON JA:  I have read the reasons of Gotterson JA and agree with those reasons and the order his Honour proposes.