R v Safi[2015] QCA 13

SUPREME COURT OF QUEENSLAND

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

[2] FRASER JA:  The applicant pleaded guilty to two offences of trafficking in a dangerous drug and related indictable offences of possessing dangerous drugs.  The applicant also pleaded guilty to four summary offences committed in 2011 and two summary offences committed in 2012.  For the offence of trafficking in dangerous drugs between 22 February and 15 November 2011 the applicant was sentenced to 10 years imprisonment.  That offence was declared to be a serious violent offence.  For the offence of trafficking in dangerous drugs between 8 and 16 November 2012 the applicant was given a concurrent sentence of seven years imprisonment.  He was convicted but not further punished for the other indictable and summary offences.  The period of 617 days which the applicant had spent in pre-sentence custody was declared to be time served under the sentence.

[3] The applicant has applied for leave to appeal against sentence.  The grounds of the proposed appeal are that the learned sentencing judge erred by failing to state in open court that the applicant’s pleas of guilty were taken into account in imposing sentence, the learned sentencing judge erred by failing to take into account the applicant’s remorse and rehabilitation as relevant mitigating factors, and the sentence was manifestly excessive.

Circumstances of the offences

[4] The first trafficking offence occurred during a period of about nine months between 22 February and 15 November 2011.  Details of the offence were set out in a summary of the police investigation, which referred to the product of various forms of surveillance, including intercepted telephone calls and text messages.  The applicant primarily obtained drugs from one wholesaler in Sydney, whom the applicant referred to as “boss”, but he also occasionally sourced drugs from other persons.  The applicant was described as being the “clear leader of the Townsville drug trafficking syndicate”.  He used a number of people to assist his drug trafficking business, including to deliver or collect money or drugs and act as drug suppliers themselves.  The applicant co-ordinated those activities and arranged and paid for couriers’ flights, accommodation and expenses.  One man, Hodgkins, appears to have acted as a second-in-command and another, Clarke, was ranked slightly below Hodgkins.  A third man, Hawkins, lived with the applicant and did not feature heavily in the intercepted telephone calls; his role is not so clear.  The sentencing judge observed that the applicant was “the principal” of the drug trafficking operation and that Hodgkins, Clarke and Hawkins worked with him and at his direction; the applicant’s role was “as the operations manager of a distribution network at perhaps a wholesale level”.  The evidence did not reveal the precise quantity or value of the drugs which were trafficked, but the evidence did disclose, and the sentencing judge found, that at times the applicant owed hundreds of thousands of dollars to his primary Sydney supplier.

[5] It was submitted for the applicant that the value of the drugs trafficked was estimated as being between $150,000 and $200,000, but the evidence showed and the sentencing judge found that those figures were instead amounts owed by the applicant to his supplier at various times.  At a different time, the debt was reduced to $59,000 by a payment of $74,000.  It seems likely, as was submitted for the respondent, that the value of the drugs trafficked was substantially greater than the highest amount of the debt, which defence counsel conceded was at least $190,000.  The scale of the operation is also indicated in some of the intercepted conversations and messages.  At one point the applicant told his principal supplier that the applicant would sell two pounds of methylamphetamine for $120,000.  In another conversation between the applicant and his principal supplier the applicant referred to having $100,000 for the supplier for methylamphetamine and ecstasy tablets the applicant had ordered.  When police searched the applicant’s house and a motel where the principal supplier was staying they found 5,000 ecstasy tablets and 2,322 grams of powder containing methylamphetamine of about 10 per cent purity in two packages of about two pounds each and one package of about one pound.  Furthermore, the applicant was able to spend very large amounts of money on girlfriends, including offering to buy one girlfriend a car.

[6] There was concerning evidence about threatened violence associated with the applicant’s offending.  When the police searched the applicant’s house they also found a working and fully loaded .38 revolver in his bedside table, 40 or 50 additional rounds of ammunition for that revolver as well as a speed loader for a different kind of revolver, .303 calibre ammunition.  On 19 September 2011 the applicant sent a text message to a girlfriend about another person’s drug debt asserting that the other person’s car would be taken or his legs would be broken.  On 6 October 2011 the applicant sent a text message to his primary supplier offering to do whatever the primary supplier wanted, the primary supplier having suggested that he would shoot someone in the leg.  On 9 October 2011 the applicant told another person that the applicant and his primary Sydney supplier had paid someone a visit to enforce a drug debt.  On 30 October 2011 the applicant asked an unknown man to bring the applicant his gun because he had to go and see someone that day.  After police had searched the applicant’s house on 12 November 2011, the applicant spoke to an unknown man and observed of a police officer that he would have to go into hiding soon.  The sentencing judge referred to some of this evidence and found that, whilst there might have been an element of bravado in the applicant’s statements, it was a significant aggravating feature that the applicant had possession of firearms and was prepared to talk about using them.

[7] Between 8 and 16 November 2012 the applicant committed the second trafficking offence whilst on bail for his earlier offending.  The facts of the second trafficking offence were set out in a schedule.  When police executed a search warrant at premises apparently occupied by the applicant and a woman, Petridis, they found text messages on Petridis’ phone, which the applicant was using, referring to a proposed sale of a pound of methylamphetamine for $40,000.  Police also found different caches of drugs concealed in different places.  In total there were 43.5 grams of pure methylamphetamine.  Petridis was originally charged jointly with the applicant but the proceeding against Petridis was abandoned after the applicant assumed sole responsibility and stated that Petridis had no part in his offending.

The applicant’s personal circumstances

[8] The applicant, who was 30 and 31 years old when he committed the offences and 33 years old when he was sentenced, had a relevant criminal history.  His New South Wales criminal record included a suspended sentence of nine months’ imprisonment and a probation order imposed in 2004 for an offence of maliciously wounding in company committed in 2003 and summary convictions in early 2004 for supplying a prohibited drug in the first half of 2003.  In Queensland he was fined in the Magistrates Court for various drug offences which he committed between December 2008 and December 2011.

[9] The applicant’s family background and the background to his offending were set out in a psychiatric report.  The applicant had a turbulent and unsettled life after his parents divorced when he was about 14 years old.  He began using drugs at that time.  The applicant told the psychiatrist that he had begun using intravenous drugs, including heroin, from when he was 15 years old, when he reported having been ejected from his home as a result of his antisocial behaviour.  He had not used drugs during his incarceration from November 2012.  The psychiatrist expressed opinions based upon reports by the applicant and the applicant’s mother that the applicant’s history of stealing and drug dealing correlated with the applicant’s history of drug addictions.

[10] The psychiatrist also expressed the following opinions.  The applicant’s “thought content was replete with themes of guilt (e.g., for how he hurt his family)… and regret and remorse (about past transgressions), but also with elements of relief, gratitude and appreciation of how his family remains devoted to his wellbeing.”  The applicant “expressed good to excellent insight and judgment regarding his chemical dependency and criminal recidivism issues.”  The applicant “acknowledged feeling remorseful about his behaviour that led to his recent convictions, feeling particularly guilty and contrite about how he has hurt his family and let them down over the years…” and “recounted how he has been selfish and reckless, and he reported that he sees being in prison at this time as a helpful thing; to help him take stock of himself…”  The applicant “expressed sincere-appearing remorse and regret about how his drug dealing ways have hurt his family and himself” and was “now markedly more mature than he was several years ago and far more capable acknowledging his own shortcomings… his having being caught and incarcerated has been good for him, teaching him a lesson, and they were both hopeful that he would continue to grow psychologically as a result of this…”

[11] Under the heading “[my] observations of rehabilitation and the prospects of rehabilitation” the psychiatrist expressed opinions that: “the applicant is an excellent candidate for further chemical dependency rehabilitation… has good to excellent insight into the nature and severity of the chemical dependency issues he has faced … also continues to understand the importance and value of recurrent efforts that chemical dependency rehabilitation, and he is highly motivated to maintain his current level of sobriety as a necessary step towards lifelong sobriety…”  The applicant’s “best odds of achieving lifelong sobriety would improve with the quality of the rehabilitation services with which he is provided …”  His involvement with drugs for personal use and for sale was motivated by his dependency on drugs and driven to a degree by “his taste for some of the finer things in life … and he wanted them without having to work for them.”  His risk of reoffending would be “highly correlated with his sobriety, as he will be at much higher risk of re-offending if he is not sober …”

Consideration

[12] The sentencing judge concluded that the applicant’s long history of drug offences and abuse of drugs, his preparedness to involve himself in a significant trafficking operation in 2011, and his preparedness to resume trafficking of drugs in 2012, were factors showing that the applicant’s prospects of rehabilitation should be regarded as slight.  In that respect, the sentencing judge referred to defence counsel’s submission that the applicant’s prospects of rehabilitation as indicated by the psychiatrist should be taken into account and referred in terms to the observations made by the psychiatrist, which the sentencing judge regarded as being “guarded.”  The sentencing judge remarked that the applicant’s prospects of rehabilitation “depend upon your continued sobriety,” that he was required to take into account “the need to reflect or fashion a sentence so as to achieve what prospects there are of rehabilitation,” that the applicant’s prospects of rehabilitation were not as high as those of the offender in R v Galeano [2013] QCA 51, and that the circumstance that the applicant committed the second trafficking offence when he was on bail for the earlier offending was a significant factor bearing upon the applicant’s prospects of rehabilitation.

[13] Those sentencing remarks require rejection of the applicant’s ground of appeal that the sentencing judge did not take into account the applicant’s rehabilitation as a relevant mitigating factor.  The argument presented for the applicant in this Court was instead to the effect that, although it was open to the sentencing judge to conclude that the applicant’s commission of the second trafficking offence whilst on bail for the first trafficking offence weighed against his prospects of rehabilitation, the sentencing judge erred by failing to acknowledge a particular passage in the psychiatric report.  In that passage the psychiatrist expressed opinions that the applicant was “an excellent candidate for further chemical dependency rehabilitation,” that he had “good to excellent insight into the nature and severity of the chemical dependency issues he has faced,” that he understood “the importance and value of recurrent efforts that chemical dependency rehabilitation,” and that he was “highly motivated to maintain his current level of sobriety is a necessary step towards lifelong sobriety.”  In light of the sentencing judge’s remarks to which I have referred, I am unable to accept that the sentencing judge did not take this aspect of the psychiatrist’s opinion into account.  It was not necessary for the sentencing judge to quote the particular passage upon which the applicant relied.

[14] The weakness in the ground of appeal that the sentencing judge failed to take into account the applicant’s remorse as a relevant mitigating factor is that the evidence of remorse was unpersuasive.  The applicant’s statements which the psychiatrist recited focussed upon the applicant’s concerns about how he had let down his family and hurt them and himself by his offending.  The report did not refer to any statement by the applicant that he possessed real insight into, or was remorseful for, his very serious contraventions of the criminal law and the inevitably destructive results of his offending within the community.  The sentencing judge was not bound to accept that the applicant was remorseful in a way which justified a significant degree of mitigation in the sentence.

[15] However I would accept that the sentencing judge did not state in open court that the applicant’s pleas of guilty were taken into account in imposing sentence.  The sentencing judge did recite that the applicant had pleaded guilty to the two counts of trafficking but the sentencing judge did not state that he had taken those pleas of guilty into account in imposing sentence.  The sentencing judge therefore did not comply with the obligation imposed by s 13(3) of the Penalties and Sentences Act 1992:

“When imposing the sentence, the court must state in open court that it took account of the guilty plea in determining the sentence imposed.”

[16] The question in this application is not whether there was such a non-compliance but what were the consequences of that non-compliance.  I accept that the obligation imposed by s 13(3) is important.  Where leniency is afforded on account of a plea of guilty, a statement to that effect serves the particularly important purpose of informing offenders of that fact.  The publicity given to such statements encourages guilty offenders to plead guilty, thereby saving victims and witnesses of offences the trauma, disruption, and expense which may be involved in giving evidence and it saves the State the expense of prosecuting offences.  Where it is evident that the guilty plea was in fact taken into account, however, those considerations will not necessarily justify the Court in reviewing a sentence merely because the sentencing judge did not clearly state that the plea was taken into account.  The applicant relied upon the Court’s observation in R v Mallon [1997] QCA 58 that one result of failure of a sentencing court to make the required statement in open court will be to “place the imposed sentence in jeopardy.”  That observation does not suggest that a non-compliance inevitably must result in the sentence being reviewed in all cases.  That such a non-compliance may not always require review of the sentence is also consistent with the Court’s immediately following observation that a non-compliance “will cause the Appeal Court to examine [the sentence] closely since it will not clearly appear that the court has in fact taken the plea into account.”  In this case I would conclude that the non-compliance does not justify review of the sentence because, despite the non-compliance, it is quite clear that that the sentencing judge did take the guilty pleas into account in formulating the sentence.  My conclusion that the sentencing judge took the guilty pleas into account in formulating the sentence is supported by the sentencing judge’s observation that the applicant had pleaded guilty, the circumstance that all of the comparable sentences to which the sentencing judge was referred, and which the sentencing judge cited, were imposed upon pleas of guilty, the circumstance that the sentence imposed by the sentencing judge was within the range of sentences suggested by those decisions, and the inherent unlikelihood that this basic principle was overlooked.

[17] In any event, I would hold that it would have been inappropriate for a more lenient sentence to be imposed in all of the circumstances of this case.  I do not accept the submission for the applicant that the decisions in R v Boyd [2013] QCA 335 and R v Kashton [2005] QCA 70 “bracket the appropriate exercise of the sentencing discretion in this instance.”  The only question in Kashton was whether the sentence of 10 years imprisonment for trafficking in heroin and methylamphetamine imposed in that broadly similar case was manifestly excessive.  It was held that it was not.  That decision cannot be regarded as setting the upper limit of appropriate sentences for that or similar cases.  For much the same reason, the Court’s decision in Boyd to refuse to grant an extension of time within which to appeal against a sentence of eight years imprisonment with parole eligibility after two years and eight months for the trafficking offence in that case does not indicate that a more severe sentence could not have been imposed in that case or that a more severe sentence should not have been imposed in this case.

[18] It is not necessary to discuss all of the many cases to which the Court was referred because the most relevant sentencing decisions have been extensively analysed in recent decisions of this Court: R v Galeano [2013] QCA 51 at [26] – [31], R v Ryan [2014] QCA 78 at [43] – [45], and R v Johnson [2014] QCA 79 at [43] – [46].  Of course there are various differences between this case and each of those cases and the cases examined in them, and each sentence must be determined by an exercise of discretion with reference to the distinctive facts and circumstances of the particular case.  Even so, significant guidance for this case can be derived from those analyses.  They reveal that for substantial trafficking in a Sch 1 dangerous drug of the order of the trafficking in this case, offenders who have pleaded guilty and invoked a range of mitigating factors have commonly been sentenced to terms of imprisonment upheld on appeal of between ten and twelve years (with the automatic declaration that the offence was a serious violent one).  For present purposes it is sufficient to quote a passage in the judgement of McMurdo P, with whose reasons Holmes JA and I agreed, in the  broadly similar case of Johnson, in which a sentence of ten years imprisonment was not disturbed:

“[45]In R v Feakes [2009] QCA 376, the applicant pleaded guilty to trafficking in an assortment of Sch 1 and Sch 2 dangerous drugs and to other related drug offences. He applied for leave to appeal against his 10 year sentence. He was 30 and 31 when he offended and 34 at sentence. He had some relevant but minor criminal history. The trafficking was committed in breach of a good behaviour bond when he was subject to "drug diversion". His offending consisted of supplying drugs on 11 particularised occasions over a seven month period to a covert police operative. He supplied 32 grams of cocaine, almost 5,000 tablets containing 330 grams of the then Sch 2 drug MDMA, and 110 grams of the Sch 2 drug MDEA. His benefit from drug related activity was over $56,000 and about $115,000 passed through his hands during the trafficking period. His trafficking was commercially motivated. After reviewing the cases of R v Kashton [2005] QCA 70; R v Assurson (2007) 174 A Crim R 78, [2007] QCA 273; R v Rodd; ex parte A‑G (Qld) [2008] QCA 341; R v Elizalde [2006] QCA 330; R v Bradforth [2003] QCA 183 and R v Raciti [2004] QCA 359 this Court noted that, absent extraordinary circumstances, in cases of trafficking in Sch 1 drugs on this scale mature offenders who have pleaded guilty can expect a sentence of at least 10 years imprisonment. Younger offenders without a significant criminal history and with excellent rehabilitative prospects may be sentenced to slightly lesser terms. Feakes had a grossly dysfunctional upbringing and had made real efforts to overcome his dependence on cannabis and other drugs so that he had promising prospects of rehabilitation. Whilst a sentence of nine years imprisonment could have been imposed, the 10 year sentence was not manifestly excessive.”

[19] Notably, the applicant was the same age as the offender in Feakes at the time of the offending and, even though the applicant was partly motivated by his drug addiction, his offending overall was at least as serious as that in Feakes when regard is had to the total period of the applicant’s trafficking offences, the applicant’s dominant role in the trafficking, the large amounts of money that changed hands, the evidence of threats of violence, and the circumstance that the applicant committed a second trafficking offence whilst he was on bail for earlier offending.  Taking that into account together with the guidance supplied by the other comparable sentencing decisions to which I have adverted, for the applicant’s substantial drug trafficking a sentence of no less than ten years’ imprisonment upon pleas of guilty was required in all the circumstances of this case.  That is also so even if, contrary to my own conclusions, the more favourable views of the applicant’s prospects of rehabilitation and of his remorse advocated on his behalf should be accepted.

Orders

[20] I would refuse the application for leave to appeal against sentence.

[21] MORRISON JA:  I agree with the order proposed by Fraser JA and with the reasons given by his Honour.