R v Blumke[2015] QCA 264

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  I agree with Philippides JA’s reasons for refusing this application for leave to appeal against sentence.

[2] PHILIPPIDES JA:  The applicant was convicted on 12 June 2015, on his own plea, of one count of trafficking in the dangerous drugs methylamphetamine, 3,4‑methylenedioxymethamphetamine (MDMA), cannabis and pyrovalerone between 12 July 2012 and 24 September 2012 (count 1), five counts of supplying the dangerous drug methylamphetamine (counts 2 - 4, 6 and 7) and one count of supplying the dangerous drug pyrovalerone (count 5).  The applicant was sentenced to four years’ imprisonment on the trafficking count and 18 months’ imprisonment on the supply counts.  The sentences were imposed concurrently and suspended after one year with an operational period of four years.  A Serious Drug Offence Certificate was issued in relation to count 1.

[3] The applicant seeks leave to appeal against the sentences on the basis that they are manifestly excessive, in that a wholly suspended term of imprisonment should have been imposed.

Circumstances of the offences

[4] The sentence proceeded on the basis of an agreed schedule of facts.  The offending came to light as a result of a police operation targeting, a co-offender of the applicant, Holtz, whose telephone calls were intercepted. There were approximately 100 intercepted calls between Holtz and the applicant.  Those together with a Law Enforcement Participant (LEP) posing as a customer and physical surveillance revealed that the applicant was trafficking over a 10 week period in multiple drugs.  On five occasions between 26 July 2012 and 7 September 2012, the applicant supplied methylamphetamine to or in the presence of the LEP and, on one occasion, pyrovalerone.  Those sales formed the basis for the six supply counts.  The applicant sold a total of 33.581 grams (15.228 grams pure) of methylamphetamine and 0.467 grams of pyrovalerone to the LEP for $12,700. The supplies were particularised as follows:

• Count 2 concerned a supply of 7.55 grams of pure methylamphetamine for $5,400;
• Count 3 concerned a supply of 0.154 grams of pure methylamphetamine for $100;
• Count 4 concerned a supply of an unknown amount of drugs to an unknown customer, no money was exchanged;
• Count 5 concerned a supply of two clip seal bags containing two light blue pills, no money was exchanged;
• Count 6 concerned a supply of 6.7 grams of pure methylamphetamine for $6,300;
• Count 7 concerned a supply of 0.784 grams of pure methylamphetamine for $900.

[5] The applicant also supplied Holtz with quantities of methylamphetamine throughout the trafficking period.  On more than 10 occasions the drug was supplied to Holtz for him to sell to his customers.  While those amounts were not able to discerned, on 23 September 2012 the applicant supplied Holtz with seven grams of the drug.  During conversations with the LEP, the applicant referred to other customers and his ability to obtain methylamphetamine, MDMA and cannabis.

Sentencing remarks

[6] The sentencing judge observed that, whilst the trafficking period in respect of count 1 was only approximately 10 weeks, it involved multiple transactions and multiple drugs, primarily at street level but on occasion not at a street level.  The drugs involved included some substantial quantities of methylamphetamine, which was a particular problem drug in the community.  His Honour remarked that the applicant’s involvement in the trafficking was characterised by some level of sophistication.  The applicant was careful to avoid detection.  He was an active participant in the trafficking business, including negotiating prices and dealing with various customers.  While, the applicant had spoken of quite significant transactions from time to time and had access to different types of drugs, his Honour considered that there was an element of bravado in what is recorded in the applicant’s telephone conversations.

[7] The sentencing judge had regard to the applicant’s age, character and antecedents.  The applicant was 27 at the time of the offences and 29 at sentence.  He had eight entries in his criminal history. Relevantly, between 2003 and 2006 he committed four minor drug offences, all of which resulted in fines.

[8] The sentencing judge accepted that the applicant’s offending flowed from his loss of employment and the breakdown of his relationship.  There were also, at the time, significant concerns as to the health of the applicant’s father, with whom the applicant had a close relationship.  His Honour recognised that the applicant would have found it hard to cope with those circumstances.  His Honour noted that to the applicant’s credit, since being apprehended, the applicant had turned his life around.  The applicant obtained employment and resumed the relationship with his partner, who provided a letter to the Court outlining the significant improvement in the applicant’s behaviour.  The applicant had also successfully removed himself from the influence of the groups in which his offending had thrived.

[9] The sentencing judge had regard to the comparable cases put forward by the parties but considered that they were distinguishable from the applicant’s circumstances.  In imposing the sentences, his Honour had regard to the totality principle, taking into account the overall criminality of the applicant.  His Honour noted the applicant’s pleas of guilty and cooperation and change of behaviour since detection as being indicative of the applicant’s genuine remorse.

[10] His Honour considered a significant head sentence was called for in respect of the trafficking count, reflecting the need to consider both personal and general deterrence.  Those considerations were, however, counterbalanced by the applicant’s significant prospects for rehabilitation, which were to be reflected in the early suspension of the sentence.  In determining the appropriate sentences, His Honour observed, however, that the “release cannot be so early as to be an affront to the proper requirements of society that [the applicant] serve a period of imprisonment for serious drug offences”.

Discussion

[11] In contending that the sentences imposed were manifestly excessive in all the circumstances, the applicant placed reliance on the following decisions: R v Mullins;[1] R v Casagrande;[2] R v Dowel; Ex parte Attorney-General (Qld);[3] R v Engellenner;[4] and R v Baker.[5]  The respondent submitted that the decisions referred to could not be considered comparable when both the objective features of the applicant’s offending and subjective factors relevant to the applicant were taken into account.  The respondent’s contention is borne out by an analysis of the decisions.

[12] Mullins concerned a sentence of four years imprisonment with parole eligibility after serving 15 months imposed on a 25 year old offender who trafficked in methylamphetamine and cannabis over a period of about seven months commencing when she was 22 years of age.  The applicant pleaded to an ex officio indictment and had made full admissions as to supplying between eight and 10 people on a weekly basis with small amounts of amphetamine ranging from 0.1 grams for $20 to 0.5 grams for $100.  She also said that she supplied two people with cannabis in the form of a “stick” (1.7 grams) for $25.  The applicant had been addicted to methylamphetamine since the age of 17 and commenced trafficking to support her addiction.  As the respondent submitted, distinguishing factors in the case of Mullins include the young age of the offender, her lack of criminal history and the special leniency called for given the confession to trafficking when there was no other evidence available to police to establish that charge.

[13] Casagrande concerned an unsuccessful Attorney-General appeal against sentences of three years’ imprisonment with immediate release on parole imposed on a 17 year old offender with no criminal history for trafficking in cocaine, a Schedule 1 drug, and MDMA, then a Schedule 2 drug over an eight and a half month period.  He initially offended to fund his own addiction but, then later, with some motivation for profit.  The applicant’s full cooperation was evident in his frank admissions to police that substantially provided the basis for the trafficking charges.  The sentence imposed for the trafficking in cocaine was described as one which “might be considered an unusual approach to sentencing for trafficking in a Schedule 1 drug”, but had to be considered against the background of the offender’s young age, his having served over a month on remand, the extent of his cooperation and that upon parole he was subject to drug testing and substantial supervision and had voluntarily undertaken psychological counselling.  The features of the youth of that offender and the extent of his cooperation provide points of distinction from this applicant.

[14] Dowel was an unsuccessful Attorney-General appeal against a wholly suspended sentence of four years imprisonment imposed on a 19 year old offender with no criminal history who trafficked in MDMA and methylamphetamine (both Schedule 1 drugs).  The offending occurred over about 40 days and concerned only three sales: one of 250 pills, another of about 150 pills and probably another of about 300 pills on an earlier occasion.  During the 21 month period on bail after his arrest, he completed his apprenticeship as a spray painter.  The respondent was unlikely to reoffend given his lack of drug dependency, employment and family support and his decision to voluntarily cease his involvement in the offending prior to any intervention by authorities, which was seen as an important consideration.  That combination of factors makes Dowel inapposite as a comparable.

[15] In Engellenner, a sentence of three years imprisonment with a parole release date fixed at a date six months after sentence was set aside and an immediate parole release date was set on the day of the hearing of the appeal.  The 18 year old offender was sentenced for trafficking in MDMA over a four week period.  Acting as a “middle man”, the applicant sourced ecstasy tablets from a supplier for various contacts.  He sourced quantities of between 30 and 100 MDMA pills from the target of a police operation when contacted by others seeking drugs.  He normally did not make any profit from those contacts but was given a few tablets for his own use.  The applicant entered an early plea and had not re‑offended during the almost 21 months while on bail and had obtained full time employment.  When spoken to by police he made admissions as to his offending.  The Court reduced the six months to be served of the three year sentence to the time that had been served as at the date of the appeal (just over three months).  Relevant to this determination were the applicant’s young age, being 18 years old, lack of relevant criminal history, lack of monetary reward from offending, admissions to police, his very early plea of guilty, employment and family support.

[16] In Baker, the 23 year old offender was sentenced to concurrent sentences of two years and six months imprisonment for trafficking in MDMA over a two month period, 12 months’ imprisonment for possessing MDMA and three months imprisonment for possessing a mobile phone used in connection with the trafficking.  Those sentences were to be served cumulatively with the residual of 14 months’ imprisonment from a suspended sentence, resulting in an effective sentence of three years and eight months.  On appeal the effective head sentence was reduced to three years with parole release after 12 months.  The offender was a low level street dealer who sold about 300 tablets, making a profit of $400.  He was a drug user and used the money to pay bills and living expenses. After being apprehended with 48 pills of MDMA, the offender was interviewed by police during which he provided the sole evidence of the trafficking offence.  He had a poor traffic record and a relatively minor criminal history, including one serious offence of grievous bodily harm, but no history for drug offences.  As the respondent submitted, disparities in age and a lack of previous drug convictions, as well, as the impact of a cumulative sentence to the one imposed distinguish Baker from the present applicant.

[17] Having regard to the serious nature of the offending and the need for a deterrent sentence and bearing in mind that the applicant did not share the combination of features present in Mullins, Casagrande, Dowel and Engellenner, in terms of age, the extent of cooperation or voluntarily ceasing of offending prior to detection, which called for a non‑custodial sentence, it has not been demonstrated that the sentences imposed were manifestly excessive.  Indeed, those authorities demonstrate that the sentences imposed were within the proper sentencing discretion.

Order

[18] The application for leave to appeal against sentence should be refused.

[19] JACKSON J:  I agree with Philippides JA.