R v Carey[2015] QCA 51

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  The applicant, Benjamin Carey, pleaded guilty on 14 August 2013, together with Jason Ryan, Darron Smith, Juan Bright and Corie Weldon, to trafficking in dangerous drugs between 1 August 2010 and 17 February 2011.  The following day he was sentenced to 10 years imprisonment to be served concurrently with the remaining three years and seven months of a five year sentence he was then serving.  It followed that he was deemed convicted of a serious violence offence under Part 9A Penalties and Sentences Act 1992 (Qld) so that he must serve eight years before becoming eligible for parole.  Pre-sentence custody of 84 days was declared as time served under the sentence.

The sentences imposed on the co-offenders

[2] His co-offender, Ryan was sentenced to 12 years imprisonment with pre-sentence custody of 20 days declared as time served under the sentence.  Ryan had a six-page criminal history including property, drugs, street and bail offences.  In 2004, he was convicted of serious assault and sentenced to three months imprisonment.  In 2009, he was fined without conviction for possession of a knife in a public place.  He also had convictions for assault or obstruction of police.  He was on bail for attempted murder throughout the period of the trafficking.  In March 2011 he was acquitted of attempted murder at trial but found guilty of unlawful wounding.  The circumstances of that offence were that at about 3.00 am a group of people including the complainant and her husband walked past Ryan on a Rockhampton street.  They thought he was behaving oddly and someone in the group suggested to a police officer that he might have drugs.  The police officer searched Ryan without result.  Ryan and his group, armed with fence palings, went to the nearby hotel where the complainant and her husband were staying.  A fight ensued between the complainant’s husband and a man who arrived in a four-wheel drive vehicle.  The police were called and the complainant and her husband returned to their hotel.  About 20 minutes later, Ryan returned with a loaded sawn off 22 rifle.  The complainant told him to leave.  He fired three shots into an occupied residential unit before firing towards the complainant from about seven metres and shooting her in the left arm only inches from her heart.  The sentencing judge found this was a direct shot and not a ricochet; it involved the grossly negligent use of a firearm.  The complainant suffered an initially undetected comminuted fracture of the humerus which healed well although she suffered serious detrimental psychological effects.  The judge sentenced him to four years imprisonment.  His 12 year sentence for the trafficking was concurrent with the remaining one year and seven months of that sentence.

[3] The judge noted that the co-offender Smith, like the applicant, was one level below Ryan in this trafficking business.  Smith’s criminality in the trafficking was indistinguishable from the applicant’s but there were other points of distinction.  Smith’s criminal history was not as serious and he co-operated with the authorities by supplying evidence incriminating himself and by pleading guilty.  He was the youngest of the offenders and had the best prospects of rehabilitation.  The judge therefore reduced his head sentence to eight years imprisonment.  He activated a suspended sentence imposed on 8 December 2010 so that the eight year sentence was to be served cumulatively on that sentence.  The judge set a parole eligibility date after 27 months on 15 November 2015.

[4] The judge sentenced the co-offender Bright, whom he found to have operated at a lesser level of criminality than Ryan, the applicant and Smith, to six years imprisonment and to one year concurrent imprisonment for unlawful supply of a weapon in category H.  Pre-sentence custody of 260 days was declared to be time served under the sentence.  This sentence was concurrent with a sentence imposed on 13 June 2013.  To acknowledge Bright’s guilty plea and the time served in custody, the judge set a parole eligibility date after two years.  Bright had a significant criminal history extending over five pages for 22 appearances involving 46 offences.  He had four prior convictions for possession of dangerous drugs, all relating to small quantities of cannabis.  He continued to offend whilst on parole and had convictions for offences of violence including four assault occasioning bodily harm offences and one robbery offence.  The prosecutor submitted that Bright, who was a big man, was the standover merchant in the business.  The judge, however, observed that no third parties received any significant injury in the course of the trafficking.

[5] In sentencing the co-offender Weldon the judge noted that his involvement was at a lower level than the others.  He had a less serious criminal history than his co-offenders and was the second youngest.  The judge sentenced him to five years imprisonment and declared 205 days as pre-sentence custody already served under the sentence.  He set parole eligibility after 18 months, that is, on 15 July 2014.

The proposed grounds of appeal

[6] On 15 April 2014 Ryan successfully appealed against his sentence of 12 years imprisonment and a sentence of 10 years imprisonment was substituted: R v Ryan.[1]  On 6 August 2014, this Court granted the applicant an extension of time for leave to appeal against his sentence.  The grounds of his proposed appeal are that the sentence was manifestly excessive; that the learned sentencing judge erred in calculating the gravity of his trafficking; and that re-sentencing is required in light of the re-sentencing of Ryan.

The applicant’s antecedents 

[7] The applicant was 26 and 27 at the time of the present offending and 29 at sentence.

[8] He had a significant criminal history.  He was fined in 2002 without conviction for minor drug offences and in 2006 for weapons offence and a breach of bail.  More significantly, in April 2008 he was sentenced to an effective term of two years imprisonment with release in August 2008 for assaults occasioning bodily whilst armed in company and possession of a schedule 2 drug.  On 8 March 2012 he was convicted after a trial and sentenced to five years imprisonment with parole eligibility on 7 June 2014 for trafficking in methylamphetamine between September and November 2009 and possessing a dangerous quantity of methylamphetamine exceeding two grams.  He committed this offence while on parole.  The circumstances of his 2009 trafficking were as follows.  His role included sending messages and gathering money.  He had been a drug-taker for about six years.  Methylamphetamine had substantially and deleteriously affected his life.  He was prevailed upon by others of stronger character to involve himself in the offending.  He had a poor criminal history including for drugs and committed this offence whilst on parole so that his parole was revoked.  As a result, he had spent 85 days in pre-sentence custody which could not be declared as time served under the sentence but which should be taken into account.  He was not the principal offender and deserved to be sentenced at the bottom of the five to seven year range.  The judge gave parole eligibility three months earlier than the half-way mark to reflect pre-sentence custody which could not be declared as part of the sentence.  Concerningly, the applicant committed the present trafficking whilst on bail for the 2009 trafficking.

The circumstances of the offending

[9] The circumstances of his present offending were set out in this Court’s decision in R v Ryan:[2]

[4] [Ryan], together with Smith and [this applicant], trafficked in methylamphetamine, ecstasy and cannabis over about five months from September 2010 to February 2011.  They were the prime movers and principal offenders.  They arranged to purchase bulk drugs and a phone to take calls from customers, to rent a house from which to operate the business, and for others including Bright and Weldon to sell, store and transport the drugs.  [Ryan] and Smith discussed how the use of the phone and house would allow them to operate like "gangstas".

[5] On 5 January 2011 when police executed a search warrant at the house, Bright, Weldon and a customer, Brent Comollatti, were present.  Police found two sets of electronic scales; two packets of clipseal bags; a sharps container; quantities of used and unused syringes; a shotgun hidden in the roof cavity and four shotgun shells (which Bright claimed as his); a Samurai sword; and a bong, scissors and a chopping plate with traces of cannabis (which Weldon claimed as his).  They also found a brown crystalline substance (which Bright claimed as his) underneath the house.  It weighed 1.979 grams and contained 0.063 grams of methylamphetamine (3.2 per cent purity).  Police took possession of the mobile phones belonging to Bright, Weldon and Comollatti.[3]

[6] Police then intercepted [Ryan’s] mobile phone conversations.  On 5 January 2011, [Ryan] told others about the police raid, adding that "tomorrow" would be "good".

[7] The trafficking operation continued after the police raid on 5 January 2011 until the arrest of all offenders on 16 February 2011.  Weldon was found in possession of a bong, cannabis and associated items and [this applicant] was found in possession of methylamphetamine.

[8] The following schedule in the statement of facts recorded that [Ryan] was the main buyer of methylamphetamine and set out the times, quantities and prices of the established purchases:

Methylamphetamine

[9] [Ryan] also bought 119 ecstasy pills for $2,690 between 16 November and 18 December 2010 and 112 grams of cannabis for $1,260 between 27 October 2010 and 7 November 2011.

[10] There was no direct evidence of the quantities or price of drugs sold.  Police recorded 98 calls concerning the purchase of drugs, on average three a day.  There were two occasions someone would use the phone to send out messages about the availability of new product.  On 30 December 2010 police intercepted Daniel Borresen as he drove away from the house.  He had 0.378 grams of brown crystalline substance which contained 0.028 grams of methylamphetamine (purity 7.6 per cent).  He told police it was speed and that he bought it for $150.

[11] [Ryan] sometimes phoned Smith and [the present applicant] and asked them to deliver "coin" or "paperwork".  On one occasion, Smith stated that he had $1,500 which the applicant allowed him to keep as a "bonus".  On 18 November 2010, they mentioned a figure of $23,500 but it was unclear whether this figure was profit or gross.”

[10] The sentencing judge noted that the trafficking occurred over about five months.  The applicant’s criminality was below that of Ryan.  Each offender used drugs including methylamphetamine, but there was no evidence that any was in the grip of an addiction.  Ryan’s plea was late but was of utilitarian value and showed indications of remorse.  Some profits of the trafficking were channelled to the offenders for their own drug taking.  The present applicant was one of the top three in the trafficking ring.  He answered the phone and worked shifts.  He moved drugs around, provided cash, bought and sold drugs and he was aware of a firearm in the house from which the trafficking was conducted.  When arrested, he tried to conceal a clip-seal bag containing 0.26 grams of methylamphetamines with 17.6 per cent purity.  He enjoyed significant returns from the enterprise, although some of the profits paid for his drug taking.  This was the third time the judge had sentenced him.  He was educated to year nine and commenced to use cannabis at age 15, progressing to ecstasy and methamphetamines.  Since his arrest he had not breached prison discipline, had undertaken courses, endeavoured to improve his skills by obtaining various tickets and had tested negative for alcohol and drugs.  His mother and sisters provided letters in support, as they had at past sentencing hearings.  He had a three year old daughter who would be negatively impacted by the applicant being sentenced to a significant term of imprisonment.  He pleaded guilty soon after receiving legal advice.

This Court’s decision in Ryan

[11] This Court in Ryan held that the primary judge erred in calculating the extent and gravity of the trafficking for which Ryan, and eventually all co-offenders, were sentenced[4] in authoritatively concluding that the trafficking involved at least hundreds of thousands of dollars and probably more than a million dollars.  After considering comparable sentences, this Court held that an effective combined sentence of 14 years and five months imprisonment, with parole eligibility after 12 years for both the 2011 conviction of unlawful wounding and this trafficking was too harsh a penalty.  This Court substituted a sentence of 10 years imprisonment for the trafficking offence.  This made an effective sentence for both the 2011 conviction of unlawful wounding and the present trafficking of 12 years and five months imprisonment with parole eligibility after 10 years and five months.

The respondent’s contentions in this application

[12] The respondent concedes that the error identified by this court in Ryan was also an error in the sentencing process in the applicant’s case, so that this Court should consider the exercising of the sentencing discretion afresh.  The respondent contends, however, that in re-sentencing the applicant for the trafficking this Court would not impose any lesser penalty than 10 years imprisonment.  The Court should therefore refuse the application for leave to appeal.

[13] The totality of the applicant’s offending for two large scale drug trafficking offences was much greater than the totality of Ryan’s offending, whose 2011 conviction was not for a drug offence.  The sentencing principles of general and personal deterrence were important.  A sentence of 10 years imprisonment for the applicant’s present trafficking offence alone is supported by R v Feakes,[5] R v Assurson[6] and R v Westphal.[7]  The effective total sentence for both the 2009 trafficking offence and the present trafficking offence of 11 years and five months imprisonment with a non-parole period of nine years and five months is entirely appropriate.

Conclusion

[14] In re-sentencing the applicant this Court must balance two important sentencing principles.  The first is the totality principle discussed in Mill v The Queen[8] which often requires a court, when imposing a sentence which will be cumulative upon or overlap an existing sentence, to moderate the new sentence so that its overall effect is not harsh or crushing.  The second is the principle that sentences of co-offenders must not be so disparate as to engender a justifiable sense of grievance on the part of an offender.[9]

[15] Applying those principles in this case is not a straightforward exercise.  Ryan ultimately received an effective sentence for both his 2011 conviction for unlawful wounding and this trafficking of 12 years and five months with parole eligibility after 10 years and five months.  But his criminal history did not involve the high degree of recidivism for drug trafficking offences present in the applicant’s criminal history.  Ryan’s sentence ran concurrently with the remaining one year and seven months imprisonment to be served on his four year sentence for his 2011 unlawful wounding conviction.  By contrast, the applicant’s present sentence of 10 years imprisonment ran concurrently with the remaining three years and seven months of his five year sentence for his 2009 trafficking.

[16] The question in this application is whether this Court, in re-exercising the sentencing discretion, should impose an effective sentence for the applicant’s two trafficking offences of less than 11 years and five months imprisonment with parole eligibility after nine years and five months.  In determining that question, it is not appropriate that this Court simply reduce the applicant’s sentence by the same proportional reduction applied by this Court to his co-offender’s sentence in Ryan.

[17] As to parity with co-offenders, the applicant’s role in the trafficking warranted a somewhat lesser sentence than Ryan but a considerably heavier sentence than Smith.  The applicant’s present trafficking which occurred over a five month period was unquestionably serious even allowing for the judge’s error in authoritatively concluding that it involved at least hundreds of thousands of dollars and probably more than a million dollars.  A distinguishing feature from Ryan is that this applicant committed the 2009 trafficking offence whilst on parole for offences including possession of a schedule 2 drug and the present trafficking offence whilst on bail for the 2009 trafficking offence.  The sentencing must be sufficiently condign to reflect the principles of general and personal deterrence.  His plea of guilty and co-operation with the authorities is a mitigating factor.  His efforts whilst in prison and the support of his mother and sisters suggest that, while his rehabilitative prospects are far from promising in light of his recidivism, they are more than negligible.  Nevertheless, after considering the parity principle insofar as it applies in the present case, I consider that a sentence of about 11 years imprisonment would be appropriate for the applicant’s 2009 trafficking offence and the present trafficking offence had he been sentenced for both at the same time.  This conclusion is supported in a general way by the sentences imposed in R v Feakes;[10] R v Galeano;[11] R v Bost[12] and R v Assurson.[13]

[18] This notional 11 year sentence must be reduced to reflect that the applicant has already served one year and five months for the 2009 trafficking, in accordance with the totality principle.  After weighing up all the competing considerations, and with the principles of deterrence, totality and parity in mind, I would sentence the applicant to nine years imprisonment for the present trafficking, effectively a sentence of 10 years and five months for both trafficking offences.  Despite the serious nature of the present trafficking and the applicant’s recidivism, I am unpersuaded that the offending has features discussed in R v McDougall and Collas^[14] warranting the offence to be declared a serious violent offence under Part 9A.

[19] There are, however, features in this case which warrant the unusual step of delaying the time at which the applicant becomes eligible for parole beyond the statutory half-way point: see Assurson.[15]  These are the seriousness of the trafficking, the applicant’s major role in it and his recidivist drug offending.  He committed his 2009 trafficking offence while on parole for another drug offence.  He then committed this offence whilst on bail for a prior trafficking offence.  Such persistent flagrant disrespect for the law warrants a firm sentence to deter both him and others.  For that reason I would defer his parole eligibility date beyond the statutory half-way point so that he serves six years imprisonment before becoming eligible for parole.

[20] I would grant the application for leave to appeal and allow the appeal by substituting nine years imprisonment for the 10 years imprisonment imposed at first instance, and by ordering that the applicant be eligible to apply for parole after six years, that is, after taking 84 days of pre-sentence custody into account, on 24 May 2019.

Orders

1. The application for leave to appeal is granted.
2. The appeal is allowed.
3. A sentence of nine years imprisonment is substituted for the sentence of 10 years imprisonment imposed below.
4. The applicant is eligible for parole on 24 May 2019.
5. The sentence imposed below is otherwise confirmed.

[21] HOLMES JA:  I agree with the reasons of Margaret McMurdo P and the orders she proposes.

[22] MORRISON JA:  I have had the advantage of reading the reasons of the President and agree with those reasons and the orders her Honour proposes.