R v Clark[2016] QCA 173

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  This is a distressing case.  The applicant, Aimee Clark, pleaded guilty to the very serious offence of trafficking in the dangerous drug methylamphetamine and to two minor summary drug offences.  The trafficking occurred over a two and a half month period during which she was very active in ordering and selling methylamphetamine, both for commercial gain and to feed her own $300 a day habit.  She was 24 and 25 at the time of the offending and 26 at sentence.  She had a criminal history which commenced only in November 2013 after she began using drugs following turmoil in her life after her first born child died of sudden infant death syndrome.  Until then she led a law-abiding life with promising career prospects.  She went onto have two more children, one aged five, and another five months at sentence.  They were then in foster care but she hoped to reunite with them with the assistance and support of her mother who attended the sentencing hearing.  Her criminal history included repeated drug offending, although she had not previously been sentenced to imprisonment.  She was on probation for drug offences at the time of the trafficking.  Her probation report stated that, as she had failed to comply with the conditions of her probation order, she was not suitable for a community based order.
2. She has applied for leave to appeal against her sentence of three years imprisonment with an order that she be released on parole on 12 April 2018, that is after she has served 80 per cent of the sentence.  She contends that the sentence was manifestly excessive and that she should be resentenced to three years imprisonment, suspended after 12 months, with an operational period of three years.
3. The maximum penalty for the offence of trafficking was 25 years imprisonment: see s 5 Drugs Misuse Act 1986 (Qld) which goes onto provide:

“(2)If the court sentences a person to a term of imprisonment for an offence against subsection (1), the court must make an order that the person must not be released from imprisonment until the person has served a minimum of 80% of the prisoner’s term of imprisonment for the offence.

3. Subsection (2) does not apply if the court sentences the person to a term of imprisonment and makes either of the following orders under the Penalties and Sentences Act 1992 for the person—

1. an intensive correction order;

2. an order that the whole or part of the term of imprisonment be suspended.”

4. Section 5 was amended in 2013 to reflect the legislative policy that those convicted of trafficking in a Schedule 1 drug like methylamphetamine and sentenced to a term of imprisonment should serve at least 80 per cent of the sentence before release on parole, unless they are sentenced to an intensive correction order or a suspended sentence.
5. The applicant’s trafficking was too serious to be dealt with by way of an intensive correction order which is limited to terms of imprisonment of one year or less: see s 112 Penalties and Sentences Act.  In any case, her probation report indicated she was not a suitable candidate for such an order.  Her life’s downward spiral, demonstrated by her criminal history and recidivism following the death of her first born, also meant that she was not a suitable candidate for a suspended sentence.  She needed a lengthy period of both supervision and support combined with tight controls over her behaviour if she was to successfully rehabilitate.  The comparable cases to which this Court has been referred demonstrate that prior to the 2013 amendments to s 5(2), the applicant would have been sentenced to between three and four years imprisonment with parole or suspension after about 12 months to reflect the mitigating features, particularly her guilty plea.  The primary judge correctly identified that a suspended sentence was inappropriate.  It would offer no support and would be setting her up to fail.  She needed the support, supervision and control available under a parole order.  The judge appropriately took into account the present, harsh requirements of s 5(2) by sentencing her towards the lower end of the applicable range.  Given the effect of s 5(2), a slightly lesser sentence than three years would have been open in this case but the sentence imposed was not manifestly excessive.  Nor has the applicant demonstrated error on the part of the primary judge.  I agree with this aspect of Morrison JA’s reasons for refusing the application for leave to appeal.
6. As a result of the 2013 amendments to s 5, the applicant, who previously would have spent about 12 months in prison for this offending, will now spend almost two years and five months in prison.  Given her drug history and her vulnerability, it is in the community interest that, when she is released on parole, she be subject to extended supervision and support, combined with the tight controls of a parole order, as she struggles to reunite her young family and to reintegrate into the community.  She will be subject to parole, however, not for two years as previously, but for a mere seven months.  This result does not seem to be in the community interest.  And, as Morrison JA points out, there is a real danger that s 5 in its present terms could result in significant delays in the criminal justice system.  Offenders who have funds available may seek to delay their sentences to assemble evidence of a rehabilitative regime which could operate independently under a suspended sentence.  Impecunious offenders who are unable to assemble such evidence may be ineligible for a suspended sentence and will be sentenced much more harshly.  To avoid this consequence, judges may find it necessary to adjourn an offender’s sentence until more information as to rehabilitation can be obtained.  The legislature may wish to consider whether the amendments to s 5 have resulted in unintended consequences which are not in the interests of the criminal justice system or the community.
7. I agree with the orders proposed by Morrison JA.
8. MORRISON JA:  On 19 November 2015, Ms Clark pleaded guilty to one count of trafficking and two summary charges:

1. Count 1: trafficking in a dangerous drug, namely methylamphetamine, between 22 March 2014 and 8 June 2014;
2. Charge 1: possessing a dangerous drug, namely cannabis; and
3. Charge 2: possessing a pipe that had been used in connection with the smoking of a dangerous drug.

9. She was sentenced to three years imprisonment on the trafficking count.  In addition, pursuant to s 5(2) of the Drugs Misuse Act 1986 (Qld), she was ordered to serve a minimum of 80 per cent of that term, resulting in a parole release date being fixed at 12 April 2018.  The summary charges each attracted a sentence of one month’s imprisonment, to be served concurrently with one another.
10. Ms Clark seeks leave to appeal against her sentence on the ground that it is manifestly excessive.  Two central points are advanced in support of that contention, namely that the learned sentencing judge erred by:^[1]

1. placing too much weight on the aggravating features, and insufficient weight on the circumstances of mitigation, in arriving at the conclusion that Ms Clark was not a candidate for a partially suspended sentence; and

2. concluding that the appropriate start point for the head sentence was four years’ imprisonment.

Circumstances of the offence

11. The application for leave to appeal is concerned with the sentence on the trafficking charge, and therefore it is unnecessary to deal with the summary charges in detail.
12. Ms Clark was identified through a covert police operation.  That operation targeted Mr Andrew, the principal of a drug supplier in the Gladstone region.  Police seized his phone and analysis of the data on it revealed a large volume of messages between Ms Clark and Mr Andrew.  They exchanged about 1900 text messages over the two month period in question.  She was in contact on a daily basis, if not more frequently.
13. Ms Clark also offered to assist the principal in his own business by collecting debts for him, and giving advice as to how to make the methylamphetamine more saleable by treating it with heat to crystallise the drug and minimise the amount of “cut”.
14. She would purchase the drugs on credit (“tick”) and on sell to her pool of customers.  The texts included her complaints about not being paid by her customers (who she called “scumbags”) in a timely way, and her debt to the principal.  The texts revealed that she carried on the business for profit.  She would commonly purchase a gram of methylamphetamine for $750 to $800, and then sell individual 0.1 gram amounts to her customers.  At one stage 13 of her customers owed her over $6,000.  The total number of customers, and the total profit, were unknown.
15. Ms Clark expressed frustration at not being able to buy larger quantities, and sought to buy more.  She told the principal that she had previously been involved in purchasing multiple ounces of methylamphetamine per week.  She involved herself in facilitating some larger sales on behalf of others.  The largest identified was a purchase of 18 grams of methylamphetamine for $9,000, on behalf of a syndicate including herself.  She had sought to buy a full ounce but could not raise the funds.  On other occasions she would purchase “balls” (7 grams) or “half balls” (3.5 grams).
16. Ms Clark owed money to the principal, her debt regularly being between $3,000 and $4,700.  She would usually pay off her debt before accruing another.  She travelled to Bundaberg to sell methylamphetamine in an attempt to pay off some of her debt.
17. When Ms Clark was first intercepted (on 25 September 2014) she was interviewed and admitted knowing the principal, but denied purchasing from him, and denied knowing what the text messages meant.  She was again intercepted on 4 December 2014 when she was charged and released on bail.
18. As for the two summary charges, Ms Clark went to the police on 21 April 2015, and claimed that some drugs and items, with which her de facto partner had been charged, were actually hers.  These consisted of a bowl of chopped cannabis and tobacco, and a pipe used to smoke methylamphetamine.  She said each was used by her to assist with pregnancy pain.  These offences breached a probation order made on 16 June 2014.

Ms Clark’s personal circumstances

19. Ms Clark was aged 24 to 25 at the time of the offending, and 26 at sentencing.  She had been in a relationship with a de facto partner for eight years, and had two children, one five and the other five months.  Both children were in foster care.^[2]
20. She was raised by her mother, and never knew her biological father.  Her background was otherwise unremarkable.  She completed schooling to year 11 and completed a traineeship before engaging in full time employment.  She left full time employment when she commenced to have children at age 21.
21. Ms Clarke’s criminal history included:^[3]

1. possession of dangerous drugs in December 2013; orders included a good behaviour period of six months and drug diversion;

2. possession of dangerous drugs, and possession of a thing used in a crime, in March 2014;
3. possession of dangerous drugs, drug utensils, and property suspected of being used in a crime, in June 2014; a 12 month probation order was made;
4. possession of a restricted item, in October 2014; and
5. contravention of a direction or requirement, in September 2015.

22. As can be seen, the probation order was contravened, not only by the offences in October 2014 and September 2015, but also the summary offences arising from her admissions in April 2015, to possession of cannabis and using a pipe to smoke methylamphetamine.  Further, the last offence in September 2015 occurred while Ms Clark was on bail for the trafficking charge.
23. At the sentencing hearing counsel for Ms Clark explained that she had lost a three month old child to sudden infant death syndrome (SIDS), on 29 September 2013.  She was then investigated by police over that death for a period of six months, during which time she did not have the support of her partner, who had been incarcerated.  Eventually the cause of the death was identified as SIDS.  Those events caused her to turn to drugs in a greater way than before.  She had been a sporadic user of cannabis and methylamphetamine before, but became a daily user, spending about $300 per day on methylamphetamine for her own use.

Performance on probation

24. The learned sentencing judge had the benefit of a probation report.^[4]  That report revealed that Ms Clark’s performance under the order was unsatisfactory, in that she:

1. failed to report twice;

2. failed to attend three sessions of the alcohol and drug counselling;
3. attended six such sessions but rescheduled frequently, attended late and engaged poorly, ultimately disengaging in October 2014;
4. used methylamphetamine and amphetamines during probation, twice returning a positive test during her pregnancy; and
5. breached the order by the possession conviction in October 2014.

25. The report concluded that she had “continued her drug-related offending behaviour with no indication of desistance from drug use”, and “failed to take advantage of the benefit afforded her by community based supervision”.  The report considered that “she would not benefit from a further period of community based supervision”.
26. The report led the Crown to describe Ms Clark’s response to probation as “most unsatisfactory”,^[5] and her own counsel to say that it was “poor”.^[6]

Approach of the learned sentencing judge

27. Ms Clark’s level of trafficking was characterised at sentencing, by both the Crown and the defence, as street level.^[7]  That characterisation seems to have been accepted by the learned sentencing judge,^[8] though with the qualification that it was “not at the lowest level that you see in these sorts of cases”.^[9]
28. The learned sentencing judge noted the following features relevant to the sentence:^[10]

1. the early plea of guilty, and that it “might well show remorse and … some determination to rehabilitate”;^[11]

2. Ms Clark’s age, 24 to 25 at the time of offending, and 26 at sentence;
3. the criminal history, which his Honour described as “disturbing” and involving “repeated drug offences”, leading him to conclude that “[y]ou have been dealt with as leniently as could be by the magistrates … however, it hasn’t deterred you.”;^[12]
4. the nature of the trafficking; his Honour noted the description of it as “street level”, but referred to the insidious nature and prevalence of methylamphetmine, saying “[o]ur previous approach hasn’t been sufficient to deter you and people like you from engaging in this evil trade”;^[13]
5. Ms Clark’s personal tragedy of the death of a child prior to the increased drug use and trafficking;
6. the period of trafficking at two and a-half months, and the fact that Ms Clark was a heavy user throughout that time; his Honour noted: “people who traffic in drugs in order to obtain drugs themselves are obtaining a gain from their activity and …it is a gain that you pursued through illegal means” and that “of course, there was a financial gain for you”;^[14]
7. the initial denials of involvement and the admission in April 2015 to drug possession and use;
8. the unsatisfactory performance on probation, and the conclusions of the report, that Ms Clark would not benefit from a further period of community-based supervision; his Honour noted: “[t]he offences in your criminal history show that, after the trafficking period, you simply continued on your way with your drug-taking activities”;^[15]
9. the time spent in custody and why it could not be declared as time served;
10. that general and personal deterrence loomed large in the sentencing balance; further, that “personal factors can not influence the sentence too greatly where we’re dealing with trafficking in a schedule 1 drug”;^[16]
11. the strong personal factors in Ms Clark’s case; this was “not so much that [she had] rehabilitated”, but the factors concerning her children, her prospects of resuming their care, her family support and her character;
12. that the prospects of rehabilitation were limited; having noted that Ms Clark got a job, whilst in prison, involving sewing bedding for motels, his Honour said that “might give some indication that you were trying to make an effort to get away from your drug taking” but the report from the probation officers “show very clearly that that was unsuccessful”; then, referring to the early plea and counsel’s submission that Ms Clark’s time in jail had been difficult for her and that it had taught her the need to change her ways, his Honour said: “[t]ime will tell”;^[17] and
13. the comparable cases referred to in submissions, as well as the impact of s 5(2) of the Drugs Misuse Act 1986 (Qld).

29. Having reviewed the authorities put forward,^[18] the learned sentencing judge identified the applicable range of sentences for low level trafficking in this way:^[19]

“It’s often said that in respect to trafficking in methylamphetamine, at the lower level, imprisonment in the range of three to five years is considered appropriate. Just how low a level your trafficking was is an issue. It certainly is at a greater level than many cases that I’ve dealt with where I have imposed sentences of three years.”

30. The learned sentencing judge then referred to the fact that s 5(2) of the Drugs Misuse Act 1986 (Qld) was applicable as the sentence would include a period of imprisonment, saying:^[20]

“In other cases that I’ve had to date where this rule has applied, I have endeavoured to avoid the effect of the rule, making a judgment that the need for parole was more compelling than the need for incarceration. Here, my judgment is to the opposite effect. That is, your trafficking is at the level which, in my view, is not at the lowest level that you see in these sorts of cases. The sentence that I would normally impose would not be at the three year mark. The Parliament has laid down a policy by reason of that provision where, clearly, Parliament is directing that incarceration will be more effective, from Parliament’s point of view, than long periods of parole.”

The legislation

31. Section 5(2) of the Drugs Misuse Act 1986 (Qld) was applicable at the time of sentence, having commenced on 29 August 2013.^[21]  Section 5 provided:

“(1)A person who carries on the business of unlawfully trafficking in a dangerous drug is guilty of a crime.

Maximum penalty -

1. if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 - 25 years imprisonment; or

2. if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 2 - 20 years imprisonment.

3. If a court sentences a person to a term of imprisonment for an offence against subsection (1), the court must make an order that the person must not be released from imprisonment until the person has served a minimum of 80% of the prisoner’s term of imprisonment for the offence.

3. Subsection (2) does not apply if the court sentences the person to a term of imprisonment and makes either of the following orders under the Penalties and Sentences Act 1992 for the person -

1. an intensive correction order;

2. an order that the whole or a part of the term of imprisonment be suspended.”

32. Methylamphetamine was a schedule 1 drug, therefore the maximum penalty was 25 years: s 5(1)(a).
33. The reference in s 5(3)(b) to an order suspending the whole or part of the term of imprisonment, refers to s 144 of the Penalties and Sentences Act, which relevantly provides:

“(1)If a court sentences an offender to imprisonment for 5 years or less, it may order that the term of imprisonment be suspended.

2. An order under subsection (1) may be made only if the court is satisfied that it is appropriate to do so in the circumstances.

3. An order under subsection (1) may suspend the whole or a part of the term of imprisonment.

4. A court must not suspend a term of imprisonment if it is satisfied, having regard to the provisions of this Act, that it would be appropriate in the circumstances that the offender be imprisoned for the term of imprisonment imposed.”

34. It is important to note that the sentencing court can only suspend a sentence if it is “satisfied that it is appropriate to do so in the circumstances”: s 144(2).  Further, the sentencing court must not suspend a sentence if it is satisfied “having regard to the provisions of this Act” that “it would be appropriate in the circumstances that the offender be imprisoned for the term of imprisonment imposed”.

Discussion

35. The applicant’s two main grounds attacked the learned sentencing judge’s failure to suspend the sentence, and the selection of four years as the start point for the head sentence.

Failure to order a suspended sentence

36. Counsel for Ms Clark attacked the failure to give proper weight to the matters in mitigation, in particular: (i) Ms Clark’s young age, the fact that she had never been in prison before, and the genuine remorse indicated by the early plea;^[22] (ii) the personal circumstances “which ultimately led to her heavy drug addiction, driving her to trafficking in order to feed her addiction”;^[23] and (iii) that she had “embarked on a trajectory to rehabilitation by working in the prison sewing bedding for motels, and by abstaining from the use of drugs”.^[24]
37. These factors, it was contended, made Ms Clark a candidate for a partially suspended sentence.  I am unable to accept that contention.
38. The contention accepts that a term of imprisonment was appropriate.  Counsel for Ms Clark at the sentencing hearing urged a term of three years, suspended after 12 months.^[25]  Before this Court that was urged again.^[26]  Therefore, the contention also accepted that a partial suspension was all that was appropriate.
39. Under s 144(2) of the Penalties and Sentences Act the learned sentencing judge could only suspend the term of imprisonment if he was satisfied that it was appropriate to do so.  There was a substantial body of evidence which made suspension inappropriate:

1. Ms Clark’s criminal history reveals a persistent course of drug offending; the leniency with which she had been dealt with by magistrates had not deterred her;

2. a probation order was made in June 2014, and repeatedly breached;
3. Ms Clark’s response to the probation order was unsatisfactory or poor, involving positive drug tests, failure to report and failure to attend counselling sessions;
4. the probation report concluded that she had continued her drug offending with no indication of desistence from drugs;
5. more importantly it recommended that Ms Clark “would not benefit from a further period of community based supervision”; and
6. the latest conviction on the criminal history occurred while she was on bail, as well as in breach of the probation order.

40. I do not accept the contention that the learned sentencing judge gave inappropriate weight to the personal factors.  To the contrary, his Honour acknowledged the full weight of the personal factors, as exemplified in the following passage:^[27]

“Those personal factors, I concede, are strong in this case. Not so much in the sense that you have rehabilitated but you are a young mother with two children, aged five years and the other five months. The children have been taken away from you by the Department and are now in foster care. Hopefully your mother can take over their care in due course. You are young and it gives judges like myself not the slightest pleasure to put young people in jail, let alone to deprive young children of their mother. You had a promising start in life. There’s no disadvantage in your upbringing. Your mother is here to support you, as she no doubt has throughout your life. You had a good school to go to. You were active there. You, I’m told, were trainee of the year at the Gladstone Port Authority, one of the pre-eminent employers in the Gladstone District, which must speak very well of your approach and your character.”

41. That followed the learned trial judge referring to this Court’s injunction that personal factors are not to influence the sentence too greatly when the sentence relates to trafficking in schedule 1 drugs.
42. The contention that Ms Clark had “embarked on a trajectory to rehabilitation by working in the prison sewing bedding for motels, and by abstaining from the use of drugs” must be treated with some circumspection.  Ms Clark was in remand for 30 days, two weeks of which was spent in the watch-house.^[28]  Therefore, the work in the prison was for two weeks, at most.  Further, at the sentencing hearing counsel for Ms Clark did not say anything about her abstention from drugs following her arrest.  All that can be said is that there is no evidence one way or the other on that topic.  In any event, any abstention while in custody would be a forced abstention rather than voluntary.
43. Further, the submissions that Ms Clark had a “heavy drug addiction” and that the trafficking was “to feed her addiction”,^[29] must also be treated with circumspection.  True it is that at the sentencing Ms Clarke’s counsel referred to her once as being “addicted to the drug”,^[30] but that is the only time that description was used of her.  At other times she was described as a user, who had a habit.^[31]  It was accepted by her counsel that the trafficking was at least in part for financial gain.^[32]  Further, she was not sentenced on the basis that she was an addict, but a user who made financial gain from the trafficking.^[33]
44. The learned sentencing judge was plainly of the view that the prospects of rehabilitation were limited.  In my view, it was open to reach that conclusion, given the limited steps taken towards that end, and the failure to respond in a meaningful way to the probation order.  His Honour referred to the fact that Ms Clark got a job, whilst in prison, involving sewing bedding for motels, and continued:^[34]

“That might give some indication that you were trying to make an effort to get away from your drug taking. The report from the probation officers show very clearly that that was unsuccessful. I accept that the early plea might well show remorse and show, again, some determination to rehabilitate. Ms Willey tells me that your time in jail has been difficult for you and that it has taught you that you need to change your ways. Time will tell.”

45. In those circumstances the learned sentencing judge was entitled to conclude that it was not appropriate to suspend the term of imprisonment.  Ms Clark did not respond at all well to supervision under the probation order, so one would doubt that she would respond well to ungoverned suspension.

The head sentence

46. The learned sentencing judge referred to the range for low level trafficking in methylamphetamine, established by authority, as being three to five years, and at the same time indicated where Ms Clark’s offending fell in that range:^[35]

“It’s often said that in respect to trafficking in methylamphetamine, at the lower level, imprisonment in the range of three to five years is considered appropriate. Just how low a level your trafficking was is an issue. It certainly is at a greater level than many cases that I’ve dealt with where I have imposed sentences of three years.”

47. The learned sentencing judge then referred to the impact of s 5(2) of the Drugs Misuse Act, and again indicated the level of offending:^[36]

“We now have the introduction into the sentence process of subsection 2 of section 5 of the Drugs Misuse Act which provides that if a court sentences a person to a term of imprisonment for an offence against subsection 1, the court must make an order that the person must not be released from imprisonment until the person has served a minimum of 80 per cent of the prisoner’s term of imprisonment for the offence. I am sentencing you in relation to an offence against subsection 1 and I will be sentencing you to a term of imprisonment.

In other cases that I’ve had to date where this rule has applied, I have endeavoured to avoid the effect of the rule, making a judgment that the need for parole was more compelling than the need for incarceration. Here, my judgment is to the opposite effect. That is, your trafficking is at the level which, in my view, is not at the lowest level that you see in these sorts of cases. The sentence that I would normally impose would not be at the three year mark. The Parliament has laid down a policy by reason of that provision where, clearly, Parliament is directing that incarceration will be more effective, from Parliament’s point of view, than long periods of parole.”

48. It is plain that the learned sentencing judge was referring to the imposition of a higher sentence than three years, though just how much higher was not spelt out.  However, several points emerge from that consideration.
49. First, the learned sentencing judge’s approach was to consider the sentence appropriate to the level of offending.  In doing so it is evident that his Honour’s consideration included the matters stipulated by s 9(2) of the Penalties and Sentences Act 1992.  The summary in paragraph [28] above shows that to be so.
50. Secondly, an integral part of that consideration was the impact of s 5(2) of the Drugs Misuse Act.  The learned sentencing judge did not approach his consideration on the basis of a two-step approach.  That is, his Honour did not assess whether to suspend the sentence (whatever it was) first, then consider what head sentence to impose.  Nor did he approach it in the reverse, by setting a head sentence, then considering whether to suspend and therefore whether s 5(2) was engaged.
51. In my respectful view, the learned sentencing judge approached the task in the correct way, that is to say, his consideration whether to suspend or not to suspend, and therefore the applicability of s 5(2), was part of an integrated approach to the sentencing exercise.  Given that the process of sentencing is a matter of instinctive synthesis,^[37] his Honour’s approach was correct.
52. Thirdly, when considering whether s 5(2) was engaged the learned sentencing judge accepted that the question turned on whether suspending the sentence, in whole or part, was appropriate.  That, in turn, was dependent upon his Honour’s assessment of those matters central to the issue of suspension, that is, the offender’s prospects of rehabilitation as evidenced by matters such as demonstrated remorse, steps to rehabilitation prior to the sentencing, and the likelihood of adherence to self-disciplined rehabilitation in the future.  Relevant to the last-mentioned factor were matters such as whether there was evidence of abstention from drug use, support in the future from either family, friends or community, and the prospects of abstaining and maintaining employment.  And, of course, the undoubted overall benefit to the community of having an offender rehabilitated rather than languishing in jail, must be borne in mind.
53. Fourthly, in my view, the learned sentencing judge’s reference to avoiding the effects of s 5(2) was not a statement that steps were taken to subvert the legislature’s intention, manifested in s 5(2).  A sentencing judge should not do so.
54. Section 5(2) is engaged where an offence of trafficking in a Schedule 1 drug results in a sentence to a term of imprisonment, no part of which is suspended.  By its plain words s 5(2) does not depend on issues of parole or probation.  Only suspension to some extent will suffice to prevent its application.  In that way one can discern the policy behind the enactment.  The legislature has evidently taken the view that offenders who traffick in Schedule 1 drugs and receive a sentence to a term of imprisonment, must serve a minimum of 80 per cent of that term unless the offender is a candidate for a suspended sentence.
55. The learned sentencing judge said that in the cases to which he adverted, he had made “a judgment that the need for parole was more compelling than the need for incarceration”.  In other words, his Honour was merely saying that in certain cases the issue of an offender’s candidature for a suspended sentence was compelling, thus precluding the operation of s 5(2).
56. The learned sentencing judge said:^[38]

“Here, the approach I will take, which I think is justified by the approach the Court of Appeal has taken to serious violent offence type situation is to moderate the head sentence and so, in that way, bring into account the mitigating factors and the fact that you will be required to serve 80 per cent of the sentence.”

57. Counsel for Ms Clark makes no criticism of that approach.  Rather, the attack was on the selection of four years as the start, from which the moderation was applied.
58. The authorities relied upon below, and before this Court, support the selection of four years as the start point, before any discounts for the guilty plea and matters in mitigation are taken into account.
59. In R v Challacombe^[39] a young man (21 to 22 at offending and 23 at sentence) pleaded guilty to trafficking in methylamphetamine and ecstasy for about six months.  There were two less serious charges of possession of drugs and cash.  The trafficking was at a “relatively low level”, and resulted in a profit of $3,000 to $4,000.  There were four regular customers.  He was a user of drugs, but not an addict.  He cooperated fully with authorities, had a good work history, and endeavoured to rehabilitate himself.  He was sentenced to five years’ imprisonment, with parole eligibility at 18 months.
60. Having reviewed R v McAway^[40] and R v Taylor,^[41] the Court refused to interfere with the sentence.  Keane JA said:^[42]

“In the light of the decision in McAway, it is not possible to sustain the argument that the sentence imposed in this case was manifestly excessive. The applicant seeks to sideline the decision in McAway by arguing that it is “out of step” with other cases. That argument cannot be accepted. The earlier decision of this Court in R v Taylor also supports the sentence in this case. In R v Taylor a head sentence of five years imprisonment suspended after two years was imposed on a 20 year old offender with no criminal history whose offending was at the lower end of a drug trafficking network.”

61. In R v Mikula^[43] a guilty plea was entered to a charge of trafficking in methlamphetamine over a nine month period, to about 17 clients.  In addition there were multiple summary charges, mostly drug related but including domestic violence and possession of weapons.  The trafficking was done for commercial reward.  The offender was 22 to 23 at the time of offending and 25 at sentence.  He had a minor criminal history, had demonstrated rehabilitation over the two years prior to sentencing, and had excellent work references.  The sentence was four years imprisonment (with lesser concurrent sentences on the summary offences), suspended after serving 16 months, with an operational period of four years.
62. Having reviewed authorities including Challacombe, McAway and Taylor, the Court^[44] concluded that the offending was broadly comparable in seriousness to McAway (five years with parole eligibility after 18 months) and Taylor (five years suspended after two years).  The Court did not interfere with the sentence, saying:^[45]

“It is true that in the present case there were many mitigating features. The applicant was relatively young when he offended and did so at a time when he was in a dysfunctional relationship and living a lifestyle which was atypical. He had a loving upbringing and since his arrest he stopped taking drugs, obtained employment and rehabilitated. He has an excellent work history, a supportive and caring family and has been drug free since his arrest. He has made commendable efforts at rehabilitation, co-operated with the authorities and pleaded guilty at an early time. A review of the cases relied on by the parties as comparable suggests the appropriate range in this case was a head sentence of between three and four years with parole eligibility at or slightly earlier than one third. The sentence imposed was at the top end of that range in light of the mitigating features. Although a more lenient penalty could have been imposed, the applicant has not demonstrated that the sentence was manifestly excessive.”

63. McAway involved a young woman (19 to 20 at the time of offending and 21 at sentence) who pleaded guilty to trafficking in MDMA and MDME over a six month period, and a summary offence (possessing cash suspected of being the proceeds of an offence).  She made a profit of about $9,000.  She had no criminal history, but after being charged breached bail once.  She was sentenced to five years with parole eligibility after 18 months.
64. The Court reviewed a number of authorities,^[46] and refused leave to appeal against the sentence.  McMurdo P said:^[47]

“There were many mitigating features in Ms McAway’s case. These included her youth, her co-operation with the authorities, including the fact that the trafficking count turned solely on her admissions, her early plea of guilty and her promising prospects of rehabilitation. A sentence in the range of four to five years imprisonment with parole eligibility after one to two years would have been appropriate in this case. The sentence imposed, while at the top of that range, cannot be said to be manifestly excessive.”

65. In R v Connolly^[48] a young man (19 at offending and 22 at sentence) pleaded guilty to trafficking in methylamphetamine, cannabis and MDMA, over about four months.  He was addicted to methylamphetamine.  The trafficking was generally at street level.  He had a minor criminal history.  Since being arrested he had “weaned himself off drugs, returned home and gained work in his family’s business, initially working short hours because of his ill health”.^[49]
66. He was sentenced to four years’ imprisonment, suspended after 12 months, with an operational period of five years.  Because of errors in concurrent sentences imposed on other charges,^[50] the Court set aside those sentences, but they were immaterial to the trafficking sentence.^[51]  The Court did not interfere with the head sentence of four years, but reduced the time to be served, from 12 to six months.  In doing so the Court reviewed a number of authorities including Taylor, McAway and Challacombe.^[52]  The Court noted that the offender “was an addict, who had taken impressive steps towards rehabilitation and has promising prospects of continuing along that path”,^[53] and said:^[54]

“Thus, even with the inherently serious crime of trafficking in Schedule 1 drugs, that the offender is driven by addiction can be a mitigating circumstance, especially where (as here) there is a genuine effort at rehabilitation which is bearing fruit. Those matters, together with the applicant’s age, plea, remorse and good references indicate that a sentence of four years imprisonment, suspended after six months, and operational for five years, is one that imposes a period of actual custody that is a realistically (sic) deterrent to this applicant and other young offenders, while also giving due regard to the weighty considerations of mitigation present here.”

67. That analysis is sufficient to show that the sentence imposed on Ms Clark was not manifestly excessive, and the selection of four years as the start point was appropriate.
68. The learned sentencing judge discounted that to three years in recognition of the fact that s 5(2) of the Drugs Misuse Act would have the effect of compelling that 80 per cent of the period of imprisonment must be served.  In my view, that was an appropriate exercise of the sentencing discretion, consistent with the established proposition that “a sentencing judge is accorded as much flexibility as is consonant with the statutory sentencing regime in determining the appropriate sentence”.^[55] Where there is such a requirement, it is appropriate to sentence at the lower end of the available range.
69. The application of the policy behind s 5(2) has evident difficulties.  Consider an offender who receives a sentence of a term of imprisonment, and is to serve 80 per cent under s 5(2).  If that offender shows demonstrable rehabilitation whilst in prison, that will have no effect on the period of actual custody served, no matter how worthy the conduct and no matter how strong the rehabilitation.  One would be forgiven for thinking that cannot be in the community’s best interests.
70. Further, in my view there is an inescapable tension created by s 5(2).  That can be demonstrated by considering the factor central to the issue of whether s 5(2) applies in any given case, that is, whether the offender’s circumstances warrant suspension of the sentence.  Where an offender is charged it is obviously in that offender’s interests to demonstrate as clearly as possible, by the time of the sentence, that steps to rehabilitate have been taken, and if not successfully so, then with sufficient promise of success as to warrant suspension.  In other words, from the defence point of view it would be of great assistance, in attempting to persuade a court of the appropriateness of suspension, to be able to demonstrate that rehabilitation is under way and a rehabilitation regime is in place.
71. That may lead, depending on the particular case, to the conclusion that it may be in the offender’s interest to delay the sentencing hearing so that there is a greater, or surer, opportunity to obtain such evidence.  The tension is obvious in that an offender should not be punished for pleading guilty at the earliest possible time.  Section 13 of the Penalties and Sentences Act 1992 (Qld), and long standing authority, recognize the importance of an early guilty plea in sentencing.  Yet, to maximise the chance of achieving suspension of part of the sentence the offender may have to delay the plea.
72. However, if the offender’s legal representatives bring about, participate in, or encourage, such delay, it may be a breach of their duty to the court.  Then again, if the court enforced that duty in a way that unfairly deprived an offender of the chance to demonstrate sufficient rehabilitation such as to deny the engagement of s 5(2), there is a risk that the Court will be seen as an arm of the legislature’s policy.  Policy matters such as that reflected in s 5(2) are not matters for the court.

Conclusion

73. For the reasons expressed above I would refuse leave to appeal.
74. I propose the following order:

The application for leave to appeal is refused.

75. NORTH J:  I have read the reasons for judgment of Morrison JA.  I agree with the order proposed by his Honour for the reasons given by his Honour.