R v Borowicz[2016] QCA 211

SUPREME COURT OF QUEENSLAND

1. HOLMES CJ:  I agree with the reasons of Gotterson JA and the order he proposes.
2. GOTTERSON JA:  On 20 July 2015, a five-count indictment was presented in the Supreme Court at Brisbane against the applicant, Frey Newton Borowicz.  It alleged offences against the Drugs Misuse Act 1986 (Qld) (“DMA”),^[1] the most serious of which was trafficking in the dangerous drugs methylamphetamine, 3,4-methylenedioxymethamphetamine (MDMA) and cannabis in contravention of s 5(1)(a) of the DMA.
3. At a hearing on 20 July 2015, the applicant pleaded guilty to all five counts on the indictment, was convicted, and was sentenced to five years imprisonment suspended after one year and eight months for the trafficking count (Count 1), and six months for each of the two counts for supplying dangerous drugs with circumstances of aggravation (Counts 2 and 3).  The applicant was not further punished for the possession offences, the subject of Counts 4 and 5.
4. On 28 October 2015 the applicant filed an application for an extension of time within which to appeal and an application for leave to appeal against sentence.  The sentence application was directed solely at the sentence imposed for the trafficking offence.^[2]  On 2 March 2016, the Court granted the applicant an extension of time within which to file a leave application until 29 October 2015.

Circumstances of the offending

5. The circumstances of the offending were set out in an agreed Schedule of Facts^[3] which was tendered by the prosecution.^[4]
6. On 30 January 2014, the applicant arrived at the premises of another party while they were being searched by police under a search warrant.  The applicant told police he was there to purchase just under two grams of methylamphetamine for a friend.  Police discovered methylamphetamine and drug paraphernalia in the applicant’s possession.  A large quantity of text messages relating to both the sourcing and supplying of drugs were found on the applicant’s phone.
7. The trafficking offending charged occurred between 30 September 2013 and 1 February 2014.  The applicant used various coded terms in text messages found on his phone to refer to the three drugs specified in the trafficking count.  The messages were a means of communicating with both customers and suppliers.  They suggested that the applicant had some 31 customers and eight suppliers.  He supplied his customers on a frequent basis with a range of drugs at street level.
8. The applicant told police he was selling the drugs because he had lost his job.  He claimed that he was making a profit of between $300 and $400 per week.  Notwithstanding an allegation by the Crown, noted in the Schedule of Facts, that the applicant profited at a far greater rate, in the absence of a “concrete basis to establish that”, the learned sentencing judge proceeded on the basis of the rate conceded by the applicant.  On that footing, a profit of between $5,400 and $7,200 was made by him during the trafficking period.^[5]  His Honour also accepted that there had not been any resultant accumulation of property or assets.^[6]

The applicant’s history of offending

9. The applicant had a limited history of drug offending.  Relevantly, his offending consisted of a previous drug (cannabis) possession offence committed in 2008 and a subsequent drug (methylamphetamine) possession offence committed in August 2014 whilst on bail for the current offences.  No conviction was recorded for either offence.^[7]  The applicant also had a lengthy traffic offence history.  It included three convictions for driving while disqualified; one in 2004, another in 2008, and the third in 2009.^[8]  On 7 January 2009, when convicted and sentenced for the third episode of driving while disqualified, the applicant was also sentenced to court ordered parole for a period of nine months for driving without a licence while disqualified by a court order.  He did not thereafter contravene his parole conditions.^[9]

The applicant’s personal history

10. The applicant was born in 1982.  He was 31 at the time of the offending and 32 at sentence.  He had worked as an employed electrician.  The loss of this employment was said to have been the trigger for a drug habit which the applicant funded with proceeds from the trafficking.  A drug education and relapse prevention program attendance record was tendered at sentence.  It established that the applicant had, to a limited extent only, attempted rehabilitation.^[10]

Sentencing remarks

11. In the course of his sentencing remarks, the learned sentencing judge referred to the applicant’s personal history and his history of offending, as well as the circumstances of the current offending.  In addition, his Honour also referred to the following matters in determining the applicant’s sentence:
    • his timely plea of guilty and cooperation with the administration of justice;
    • the circumstance that the loss of employment had been a catalyst for the appellant’s drug habit and then the trafficking to fund it;
    • the need to deter others from like offending;
    • the need to address a concern, arising from the applicant’s history, that he could engage in drug taking and subsequent offending in the future; and
    • that, however, given his family support, the applicant’s prospects of rehabilitation and reintegration into the workforce were good.
12. His Honour’s remarks also took account of certain statutory provisions applicable to the sentencing for the trafficking offence.  It is convenient to elaborate upon them at this point.
13. Section 5 of the DMA includes subsections (2) and (3) which were inserted in 2013.^[11]  Subsection (2) applies to an offence against it only if the act or omission constituting the offence occurred wholly on or after 13 August 2013.^[12]  As noted, the trafficking count here alleged trafficking within a period which began on 30 September 2013.
14. The two subsections provide as follows:

“(2)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—

(a)an intensive correction order;

(b)an order that the whole or a part of the term of imprisonment be suspended.”

15. Relevant, as well, was s 144 of the Penalties and Sentences Act 1992 (Qld).  Section 144(1) provides that a court may order that a term of imprisonment be suspended if an offender is sentenced to imprisonment for five years or less.
16. Mindful of these provisions, the learned sentencing judge remarked:

“For the Prosecution it was submitted that unless I impose a sentence resulting in a suspension, that is to say, if I imposed a sentence which would involve a parole release date or a parole eligibility date, the fact that you would be required to serve 80 per cent of the sentence in custody is relevant.  It seems to me a real question arises as to whether I should impose a sentence, which is not greater than five years, and which could in part be suspended, or I should impose a lesser head sentence which would result in a parole eligibility date being fixed.

In the end, I have decided that in your case it is better to impose a head sentence which will not exceed five years, and part of which will be suspended.  There are obvious advantages in you being released on parole.  In particular, you would have supervision.  However, the result of the legislation is that the period for which that will be available is truncated, whereas a release while you are subject to a suspended sentence means that the balance of the sentencing hangs over your head for a relatively long period and, hopefully, will act as a substantial deterrent to you to avoid further offending.  The fact that you have good family support, it seems to me, somewhat offsets the loss of the supervision which would be available if you were released on parole.”^[13]

The ground of appeal

17. The applicant’s sole ground of appeal is that the sentence is, in all the circumstances, manifestly excessive.^[14]

Applicant’s submissions

18. The applicant filed a Form 26 Application for Leave to Appeal on his own behalf.  Subsequent to that, he obtained legal representation for preparation of the Outline of Submissions and for argument of the application.
19. The applicant’s counsel has contended that the learned sentencing judge had not been provided with appropriate comparable decisions and submitted that that had resulted in his Honour imposing a sentence which was manifestly excessive.  Specific reference was made to the decisions of this Court in R v Baker,^[15] R v Jobsz,^[16] R v Mikula^[17] and R v Blumke.^[18]  It was submitted that had these decisions been available to defence counsel at sentence, it would have been open to him to use them for two purposes: firstly, to demonstrate that the sentences relied on by the prosecution were less cogent; and, secondly, but also to submit that there was precedent for, if not a pattern of, suspensions at less than a third in trafficking cases such as the present, where the offender was an addict, had trafficked for a short period of time to fund an addiction, and had shown promising signs of rehabilitation.^[19]  Particular emphasis was placed on Mikula in this regard.
20. Further, it was submitted for the applicant that upon a re-sentence, his sentence should be varied to four years imprisonment on the trafficking count, suspended after a period of between 12 and 16 months, for an operational period of four years.^[20]  At the hearing of the application, counsel conceded that a suspension after 12 months “might be thought to be ambitious”.^[21]

Respondent’s submissions

21. The respondent submitted that, notwithstanding that the decisions now relied on by the applicant as comparable were not considered by the learned sentencing judge, the sentence is not manifestly excessive.
22. The respondent referred to the decisions of this Court in R v Connolly,^[22] R v Taylor,^[23] R v McAway,^[24] R v Challacombe,^[25] R v Baradel^[26] and R v C’Ward^[27] in making the submission that the sentence imposed is not manifestly excessive.^[28]

Discussion

23. I now turn to consider the cases that have been referred to this Court.  At the outset, I note that in none of them had the trafficking offending begun on or after 13 August 2013.  Hence s 5(2) of the DMA was inapplicable in them.^[29]  An issue that arose during the course of oral submissions is whether, by virtue of the enactment of s 5(2), there has been a legislative harshening of sentences for this type of offending, even where a suspended sentence to which s 5(2) is inapplicable, is imposed.  That issue is considered later in these reasons.
24. The applicant’s cases:  In Baker, the Court granted the offender’s application for leave to appeal against his sentence, substituting a term of three years imprisonment for a drug trafficking offence, to be served concurrently with an activated 14 month suspended sentence, and with parole eligibility after serving 12 months.  The trafficking offence had been committed while the offender was on parole after serving a term of actual imprisonment for a grievous bodily harm offence.  Like the applicant, the offender had a poor traffic offence record.  He was sentenced on the basis that he was a “low-level street dealer in MDMA”.^[30]  His trafficking period was half that of the applicant.  The offender used the profit made to pay living expenses, not to fund a drug habit, as was the case for the applicant.  However, the offender was only 23 years old at the time of the offending and had no previous convictions for drug offences.
25. In Jobsz, the Court set aside a combined sentence of four and a half years imprisonment for the totality of the offender’s drug trafficking and associated possession offending.  The trafficking count alleged trafficking in cocaine and MDMA on a single day,^[31] and not over a period of time.  Evidence indicated trafficking at a “not insubstantial” level.^[32]  For the trafficking count, the Court imposed a sentence of four years imprisonment, suspended after 12 months for an operational period of four years.  The offender was 25 years old which was described by de Jersey CJ as being “a mature age”.^[33]  He did not cooperate with authorities, other than by a guilty plea.  The offender had no prior convictions.  As was the applicant, the offender was a drug addict driven to trafficking.  He had undertaken drug and alcohol counselling, leading to “substantial changes in his lifestyle” confirmed by the results of drug testing.  Evidently, the offender had made greater attempts than the applicant to persevere with rehabilitative courses.
26. In Blumke, the Court refused the offender’s application for leave to appeal against sentences of four years imprisonment for a drug trafficking offence, and of 18 months for certain supply offences, all suspended after 12 months.  The ground of appeal was that the sentences were manifestly excessive.  The 27 year old offender’s trafficking occurred over a 10 week period.  Although it was primarily at a street level, it embraced some four drugs including MDMA and cannabis.  Like the applicant, the offender had been fined for minor drug offences.  His trafficking offending followed upon a loss of employment.  However, the offender had shown significant prospects of rehabilitation.  He had “turned his life around” and had desisted from further drug offending while on bail.^[34]  The Court accepted the sentencing judge’s view that this, together with his pleas of guilty and cooperation, indicated “genuine remorse” on the offender’s part.^[35]  The applicant’s reoffending on bail here stands in the way of a like indication in this case.
27. In Mikula, the offender’s application for leave to appeal against a sentence of four years suspended after 16 months for a trafficking offence was refused.  The offender was 22 and 23 years old at the time of the offending and had a criminal record which included minor drug offences, as well as breaches of domestic violence orders and possession of weapons.  As with the applicant, the offender had a supportive family to assist in the rehabilitation process.
28. Counsel for the applicant made the submission that the applicant’s circumstances are no more deserving of punishment than those of the offender in Mikula.  Reliance was placed upon the length of trafficking by the offender of nearly nine months, the fact that the drugs trafficked were methylamphetamine and cannabis, the offender’s lack of cooperation with police, and the circumstance that the offending was for commercial reward, although no actual profit was made.
29. In concluding that the sentence imposed was not manifestly excessive, McMurdo P, with whom Holmes and Morrison JJA agreed, stated:

“[The offender’s] trafficking over a nine month period was broadly comparable in seriousness to that in McAway where a five year sentence with parole eligibility after 18 months was imposed, and Taylor where a five year sentence suspended after two years with an operational period of five years was imposed.”^[36]

Later, her Honour observed:

“…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.”^[37]

30. This observation is relied upon by counsel for the applicant particularly as it related to appropriate range.  It is, however, an observation to be understood in context.  Her Honour began the paragraph containing the observation with an acknowledgement that there were “many mitigating features”.  She listed them as follows:

“…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…”^[38]

31. The relevance of the particular circumstances to the sentencing range identified in Mikula was recently noted by Fraser JA in Baradel.^[39]  The applicant here does not have a comparable pattern of impressive mitigating circumstances with respect to post-offending rehabilitation and positive lifestyle adjustments.
32. The respondent’s cases:  In Taylor, in refusing the 20 year old offender’s application, Jerrard JA, with whom McMurdo P and Douglas J agreed, stated:

“…[t]he sentencing judge would have been amply justified in suspending the sentence after, say, 18-20 months had been served, reflecting the relatively short period of the trafficking [of three months] and the other mitigating circumstances, including the plea of guilty and ready confession to the police.  The sentence imposed [of five years imprisonment suspended after two years with an operational period of five years] showed only a small reduction of the minimum period to be served which could reflect the plea of guilty, and other co-operation with investigating authorities; but the result was not shown to be manifestly excessive, when compared to sentences other than that imposed on [the offender]…”^[40]

The offender in Taylor had admitted to trafficking over a three month period in methylamphetamine and MDMA.  He trafficked for profit and was not himself a hard drug user.  He was sentenced at the same time to concurrent terms of imprisonment for a number of supply and possession offences.

33. The offender in Challacombe was sentenced on a plea of guilty to five years imprisonment with parole eligibility set at 18 months.  He was a young father, had no criminal history and had shown strong signs of rehabilitation.  He had made a profit of between $3,000 and $4,000 in a four to five month period trafficking in methylamphetamine and ecstasy.  He was also sentenced to concurrent terms of imprisonment for two possession offences.  His application for leave to appeal was refused.
34. In Baradel, the 22 year old offender’s sentence of five and a half years imprisonment with parole eligibility fixed after about 22 months was not disturbed on appeal.  The offender trafficked in workshop-produced methylamphetamine.  The trafficking charged, from which the offender derived about $10,000 profit, was over four months.  He had a minor criminal history and ceased using drugs following the arrest.  He was sentenced at the same time to a concurrent term of three years for producing a dangerous drug and shorter terms for two other drug related offences.
35. The offender in C’Ward was given a five year sentence for a little over six months of trafficking in the same drugs as the applicant.  A parole eligibility date after 20 months was fixed.  The offender was trafficking at a significant level and received a sentence greater than that of his much younger co-offenders on account of his criminal history, maturity (47 years of age at the time of offending), and the absence of an early guilty plea.  In refusing the offender’s application, McMurdo P observed that the sentence imposed was a moderate penalty for the offence and the parole eligibility date generously recognised the offender’s mitigating circumstances.^[41]
36. In McAway, the offender, who was 19 and 20 years of age at the time of the offending, made approximately $9,000 profit over a six month period from trafficking in MDMA and MDEA.  She cooperated with police and demonstrated strong prospects of rehabilitation by removing herself from the relationship that brought on the offending and successfully completing a drug diversion course.  During the course of her reasons for refusing the offender’s application for leave to appeal against her sentence of five years imprisonment with parole eligibility after 18 months, McMurdo P (with whom de Jersey CJ and Muir JA agreed) stated:

“…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.”^[42]

This offender had also been sentenced to concurrent shorter periods of imprisonment for several possession offences.

Observations with respect to the cases

37. Overall, these cases demonstrate a broad range of sentences imposed for trafficking on a scale similar to that engaged in by the applicant.  They also reveal youth or immaturity at the time of offending and genuine and measurably significant progress in rehabilitation as significant moderating influences in the level of sentence imposed.^[43]
38. The applicant was noticeably older than the offenders in Baker and Mikula.  He had not made the progress in rehabilitation made by those in Jobsz, Blumke or Mikula.  The difference between the applicant’s trafficking sentence and the sentences imposed in those cases is explicable when allowance is made for that.
39. Furthermore, cases such as Taylor, Challacombe, Baradel and McAway are instances of similar sentences being imposed on offenders who were considerably younger than the applicant.  The similarity is as to both length of sentence and time to be spent in actual custody.  That alone presents a considerable hurdle for a submission that the applicant’s sentence is manifestly excessive.  At its highest, his sentence is towards the upper end of the range of sentences in the cases to which the Court has been referred.
40. Certainly, there is not such a difference as would compel a conclusion that there must have been some misapplication of principle on the part of the learned sentencing judge warranting appellate intervention.  As the recent decision of French CJ, Keane and Nettle JJ in R v Pham^[44] reminds, that is the test to be applied in determining whether a sentence is manifestly excessive or inadequate.
41. For those reasons I am unpersuaded that the applicant’s sentence is manifestly excessive.  I have reached this view having regard to sentences imposed for comparable offending and without allowance for any harshening on account of the enactment of s 5(2).

The impact of s 5(2) of the DMA

42. Nevertheless, I would make the following brief observations with respect to the enactment of this section since it was adverted to in argument of the application.  The observations are limited to a case such as the present where a suspended sentence is imposed.  They are intended to complement the observations made in R v Clark^[45] concerning s 5(2) and parole-based sentences with which I respectfully agree.
43. Firstly, I infer from the excepting from the operation of s 5(2) of suspended sentences that the legislature did not intend to limit the sentencing court’s discretion to opt for an order for suspension.  That is to say, the enactment of the section does not establish, expressly or by implication, a preference for parole eligibility or parole release over suspension.  So much is confirmed by relevant contemporary material, the Explanatory Note to the Criminal Law Amendment Bill (No 2) 2012 and the second reading speech to the Bill.^[46]
44. Secondly, I would regard it as a relevant consideration for deciding whether to opt for a suspended sentence, that, where s 5(2) would apply to a sentence of modest duration, the opportunity for parole conditions to achieve beneficial effect might be significantly truncated.
45. Thirdly, I am unable to infer, from the enactment of the two subsections, or the terms in which they are enacted, a legislative intention that if a sentencing judge opts for a suspended sentence, then either the duration of the sentence or the period after which it is to be suspended must be set so as to ensure that the offender is sentenced to a period of actual custody that is comparable with that which would have been served under s 5(2) in order to attain parole eligibility or release.
46. Fourthly, I would regard it as legitimate within an integrated sentencing process, for a sentencing judge to reason, as his Honour did here, that where a suspended sentence is favored, then a longer head sentence might be imposed than for a parole-based sentence in recognition of the fact that the period to be served in actual custody before the suspension operates will be less than which would to be served before parole eligibility or release would arise under s 5(2).

Disposition

47. For these reasons, in my view, the applicant’s ground of appeal cannot succeed.  The application for leave to appeal must therefore be refused.

Order

48. I would propose the following order:
    1. Application for leave to appeal against sentence refused.
49. PHILIP McMURDO JA:  I agree with the order proposed by Gotterson JA and with his reasons, including his observations with respect to s 5(2) of the Drugs Misuse Act 1986 (Qld).