R v McGinniss[2015] QCA 34

SUPREME COURT OF QUEENSLAND

[1] CARMODY CJ:  I agree with Fraser JA’s proposed order and his reasons.  The order of the court is that the application for leave to appeal is refused.

[2] FRASER JA:  On 12 June 2014 the applicant was convicted on his pleas of guilty of one count of trafficking in dangerous drugs and one count of possession of a dangerous drug in excess of 200 grams.  On the first count he was sentenced to 10 years imprisonment, with an automatic serious violent offence declaration having the effect of requiring him to serve eight years imprisonment before becoming eligible for parole.  He was sentenced to a concurrent term of eight years imprisonment on the second count.  The applicant has applied for leave to appeal against sentence on the grounds that the sentence was manifestly excessive and the sentencing judge failed to give “any or any appropriate weight to the applicant’s rehabilitation.”

Circumstances of the offences

[3] The circumstances of the offences were set out in an agreed schedule of facts which was tendered at the sentence hearing.  The applicant trafficked in methylamphetamine over a seven month period between mid-November 2011 and mid-June 2012.  He supplied small amounts of the drug to three regular customers and he also supplied other occasional customers, two of whom were named in the schedule of facts.  During the trafficking period there were more than 250 calls and text messages between the applicant and one of the regular customers.  The applicant supplied that customer on approximately 30 to 40 occasions.  Codes were used in their communications.  The applicant supplied that customer with a total amount of at least 115 grams of methylamphetamine for the gross price of at least $54,000.  The applicant also supplied to each of his other regular customers “multiple ounces” of methylamphetamine worth more than $10,000 and $20,000 respectively.

[4] In addition, the head of a drug syndicate, one Adrian Thompson, paid the applicant $1,000 per week for performing various tasks related to Thompson’s drug trafficking enterprise.  Thompson’s syndicate delivered wholesale quantities of drugs in Brisbane and in two provincial Queensland cities.  Police intercepted more than 130 calls and texts between the applicant and Thompson related to drug trafficking.  At the direction of Thompson, the applicant transported large amounts of drugs on six occasions, amounting to a total quantity of three kilograms.  On other occasions the applicant carried money to pay for drugs.  He delivered a total amount of more than $100,000 to Thompson’s Sydney suppliers.  The applicant also helped Thompson to distribute the drugs in Queensland.  More than 800 intercepted telecommunications between the applicant and others were linked to the applicant’s drug distribution activities.  When the last of the applicant’s drug deliveries for Thompson was intercepted by the police on 9 June 2012, the applicant was found in possession of 10 clip seal plastic bags each containing a substance weighing exactly two ounces.  In total, there were 404.325 gram (72 per cent purity) of pure crystallised methylamphetamine, with a conservatively estimated wholesale value of more than $200,000.  The applicant’s unsourced income for the part of the trafficking period between 3 January and 10 June 2012 was $27,290.

[5] The applicant was arrested on 9 June 2012.  He declined to participate in an electronic record of interview.  After his telephone had been intercepted by police, the applicant told Thompson that the drugs had been seized.  Thompson enquired whether the defendant’s phones contained messages and the supplier’s phone number.  They met and in an intercepted conversation the applicant advised Thompson that he had wiped his phone.  The applicant did in fact remotely erase all data on one of his mobile phones after he was released on bail.  Also, the applicant told a member of Thompson’s drug syndicate that a named person wished to obtain methylamphetamine.

The applicant’s personal circumstances

[6] The applicant was 26 years old when he offended and 28 years old when sentenced.  His criminal history contained one minor offence of no relevance to the sentence.  The applicant’s counsel told the sentencing judge that the applicant was introduced to drugs by Thompson when the applicant was in a relationship with someone who used drugs.  The applicant ended that relationship and ceased using drugs.  When Thompson re-entered his life the applicant recommenced using methylamphetamine.  After the applicant was charged his family assisted him to again cease using drugs.  The applicant obtained employment and resumed a previous relationship with someone who was vehemently opposed to drugs.  They had a child who was three and a half years old at the time of sentence.  The applicant was a trusted employee with the support of work colleagues who knew of his offending.  Drug tests in October 2013, November 2013 and February 2014 returned negative results.  The applicant’s counsel told the sentencing judge that the applicant had not committed any offences during the two year period when he was on bail awaiting sentence.

[7] The applicant argued that the sentencing judge erred by not taking into account, or not sufficiently taking into account the significant efforts at rehabilitation undertaken by the applicant, with the result that the sentencing process miscarried and the Court was obliged to re-sentence the applicant afresh: House v The King (1936) 55 CLR 499 at 504‑5.  The transcript of the sentence hearing reveals that when the references and drug screening documents upon which the applicant relied were tendered and made an exhibit the sentencing judge read those documents.  When passing sentence, the sentencing judge referred to the evidence that the applicant had commenced upon rehabilitation, observing that the applicant’s counsel had submitted that the applicant’s life was back on track after having been lured by Thompson into the trafficking.  The sentencing judge also accepted from the references that the applicant was a good and respected employee of his current employer, and that the applicant had a partner and a small child.  There is no reason to doubt that that the sentencing judge took into account and gave weight to the evidence that the applicant had embarked upon rehabilitation.

[8] Accepting that the applicant has commendably embarked upon his rehabilitation, that process could not be regarded as complete, particularly since the applicant had once before ceased to use this addictive drug but had returned to it and that it was not suggested that the applicant had undertaken any drug diversion courses.  The sentencing remarks do not support the applicant’s contention that the sentencing judge did not give “appropriate” weight to the evidence of this (partial) rehabilitation, a contention which does not in any event raise a viable ground of appeal.  The applicant referred to R v Illin [2014] QCA 285, in which the Court concluded that a sentencing judge’s omission to take the delay and rehabilitation of an applicant into account was an error of principle in the exercise of the sentencing discretion which required the court to re-sentence the applicant afresh unless it concluded in a separate and independent exercise of discretion that no different sentence should be passed.  That principle was not in issue in this application, but in this case the sentencing judge did not fail to take the delay and rehabilitation of the applicant into account.

[9] In contending that the appropriate sentence was “in the order of nine years imprisonment,”[1] the applicant relied particularly upon the following sentencing decisions: R v Bradforth [2003] QCA 183, R v Rizk & Raciti [2004] QCA 359, R v Feakes [2009] QCA 376 (and McMurdo P’s analysis of other sentencing decisions in that case), R v Johnson [2014] QCA 79, R v Prendergast [2012] QCA 164, and R v Galeano [2013] QCA 51.

[10] The sentencing judge did not accept that the applicant’s criminality was as severe as that of the offender in Bradforth, but in that case one reason why the sentence was reduced on appeal from 12 years imprisonment to 10 years imprisonment was to give appropriate recognition to the circumstance that the offender had been on remand for nine months before being sentenced and that time could not be declared as time served under the sentence.  It should also be noted that although the applicant did not offend whilst on bail as did the offender in Bradforth, the applicant’s conduct in remotely deleting information from one of the seized mobile phones and in speaking to Thompson about that and a possible drug supply were relevant circumstances for the sentencing judge to consider.  Bradforth does not justify a conclusion that the applicant’s sentence was manifestly excessive.

[11] The Court has recently analysed the relevant sentencing decisions: see R v Galeano at [26]-[31], R v Ryan [2014] QCA 78 at [43]-[45], and R v Johnson at [43]-[46].  As I observed in R v Safi [2015] QCA 13 those analyses indicate that, whilst each sentence requires an exercise of discretion with reference to the facts and circumstances of the case, for substantial trafficking in a Schedule 1 dangerous drug of the order of the applicant’s trafficking, offenders who have pleaded guilty and invoked a range of mitigating factors have commonly been sentenced to terms of imprisonment of between 10 and 12 years (with the automatic declaration that the offence was a serious violent one).  In this case, as in Safi, it is sufficient to quote the following passage from the judgment of McMurdo P, with whose reasons Holmes JA and I agreed, in the broadly similar case of Johnson in which a sentence of 10 years imprisonment was upheld:

“[45]In 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; Rodd; 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.”

[12] The applicant was younger than the offender in Feakes and the applicant’s offending was not committed whilst on bail or in breach of a good behaviour bond.  On the other hand, taking into account both the applicant’s trafficking and his trafficking as an “employee” in Thompson’s very substantial operation the applicant’s overall criminality was markedly worse than that of the offender in Feakes.  Giving full weight to the applicant’s early pleas of guilty and his commendable efforts to rehabilitate himself, his sentence accords with the guidance supplied by the comparable sentencing decisions.  Whether or not it was open to the sentencing judge to impose a more lenient sentence, it cannot be said that the sentence imposed was manifestly excessive such as to justify interference by this Court.

Proposed order

[13] I would refuse the application for leave to appeal.

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