R v Laidlaw[2016] QCA 290

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  On 20 November 2015 in the Supreme Court at Rockhampton, the applicant, Nathan Andrew Laidlaw, pleaded guilty to two offences charged by separate indictment.  The count on one of the indictments alleged an offence against s 339(1) of the Criminal Code (Qld) in that on 15 August 2014 at Rockhampton, the applicant unlawfully assaulted Steven Richard Atkins and did him bodily harm.  The count on the other indictment alleged an offence against s 5(1)(a) of the Drugs Misuse Act 1986 (Qld) (“DMA”) in that between 15 February 2014 and 24 July 2014 at Rockhampton and elsewhere in Queensland, the applicant carried on the business of unlawfully trafficking in the dangerous drug, methylamphetamine.
2. On the same occasion, the applicant pleaded guilty to numerous summary offences listed in bench charge sheets.  There were 13 charges of receiving tainted property; two charges of contravention of a domestic violence order; one charge of fraud; one charge of attempted fraud; one charge of common assault; and two charges of stealing.
3. At a sentence hearing on 9 December 2015, the applicant pleaded guilty to a further summary offence listed in a separate bench charge sheet.  This offence was of entering premises by break and committing an indictable offence, namely stealing.
4. At the conclusion of the sentence hearing, the applicant was sentenced for all offences to which he had pleaded guilty.  On the trafficking count, he was sentenced to five years imprisonment.  The applicant was sentenced to 12 months imprisonment on the unlawful assault count.  As for the summary offences, he was sentenced to imprisonment for the following periods:

1. each receiving offence – three years;
2. each stealing offence – three years;
3. the break and enter offence – three years;
4. the fraud offence – two years;
5. the attempted fraud offence – six months;
6. the common assault offence – six months; and
7. each contravention offence – three months.

5. The sentences for the summary offences are to be served concurrently with each other.  However, they are to be served cumulatively upon the sentence for the unlawful assault offence charged on indictment - in all, a period of four years imprisonment.  The sentences for all those offences and the trafficking offence are to be served concurrently.
6. The learned sentencing judge ordered that the sentence for the trafficking offence be suspended after three years with an operational period of five years.  For the sentences that are to be served cumulatively, a parole eligibility date at the three year mark was set.  The operative date for both the suspension and parole eligibility is 21 October 2017.  In the fixing of that date allowance was made for some 413 days of pre‑sentence custody declared to be time served under the sentence.

The circumstances of the applicant’s offending

7. The applicant’s offending was detailed in three schedules of facts tendered at the sentence hearing.^[1]  The most serious offence was the trafficking.
8. Trafficking:  The applicant trafficked for about five months.  He supplied methylamphetamine primarily at street level.  He sold to customers for their own use and to street level dealers who had their own customer bases.  During a 21 day period when his phone was monitored, the applicant would source and supply methylamphetamine on a daily basis.  The applicant was seeking to expand his business.  He hired others whom he described as “working” for him.  He referred to himself as the “money man” and disclosed an ambition to direct, but not personally participate in, drug dealing.
9. The applicant’s trafficking was on a commercial basis.  He had 15 different suppliers and at least 17 different customers.  He advertised the quality of his drugs and authorised and monitored lines of credit.  He engaged the services of a “stand over man” to enforce the payment of debts.
10. The trafficking for which the applicant was charged was, and was intended to be, profitable.  The profit derived in the period charged was not established.  However, the profitability of the trafficking is illustrated by an intercepted message in which the applicant stated that he would make $4,500 “on three 8 balls”, a sale of about 10.5 grams of methylamphetamine.
11. Assault occasioning bodily harm:  This offence involved an unprovoked attack on a man who had asked the applicant to leave his home.  The victim suffered an undisplaced fracture of the jaw and some facial lacerations.
12. Summary offences:  The receiving offences principally concerned about $26,000 worth of household fittings and appliances taken from new housing developments.  They were found in the applicant’s possession by police.  On one occasion, the applicant himself had entered premises and stolen some appliances.
13. The fraud and attempted fraud offences involved two expensive motor bikes that the applicant had purchased.  He arranged for an insurance policy on each bike to be taken out.  He fraudulently gave his neighbour’s name and date of birth to the insurer as the insured and arranged for payment of the premiums of about $11,600 by way of his neighbour’s key card.  Later, he falsely reported to the insurer that one of the bikes had been stolen.  His deceit was detected before a claim was paid.
14. The common assault was inflicted by a punch to the jaw of a man.  The applicant had accused him of previously stealing tools from him.
15. The contraventions of domestic violence orders occurred when the applicant, on one occasion, rang his former partner stating that he wished to speak to his son and, on another occasion, had his former partner’s cousin ring her on his behalf to arrange a conversation with the son.  Each contact was in breach of a domestic violence order.  Each offence occurred whilst the applicant was held in custody on remand for the other offences the subject of this application.

The applicant’s personal circumstances and history of prior offending

16. The applicant was 26 years old at the time of the offending, other than the contraventions which happened when he was 27 years old.  He was 28 years old at sentence.  He had been educated to Year 10, had a trade, had been in employment, and had conducted his own business.  He had solid family support.  His offending conduct was attributed to discord with his partner, a consequent depression and an introduction to methylamphetamines.^[2]
17. The learned sentencing judge described the applicant’s criminal history as “unenviable”.  It began with three stealing offences when he was 18 years old and continued with 10 other dishonesty offences over a five year period thereafter.  The applicant had no prior convictions for drug related matters.

Matters referred to by the learned sentencing judge

18. In addition to the matters I have mentioned, the learned sentencing judge noted the early pleas of guilty,^[3] the applicant’s expression of apology to those harmed by him,^[4] and the possibility, in his case, of good prospects of rehabilitation.^[5]
19. Against these factors which inclined him to minimise the applicant’s time in gaol, his Honour balanced the “extremely important” role that personal and general deterrence played in the case.  It was an exercise, he remarked, that was not “very easy”.^[6]
20. This remark was made in a context where the learned sentencing judge had noted that s 5(2) DMA would have required that the applicant serve 80 per cent of the term of imprisonment for the trafficking offence, unless the court made an order that the whole or a part of the term of imprisonment be suspended.^[7]  He was also mindful that pursuant to s 144 of the Penalties and Sentences Act 1992 (Qld) (“PSA”), he could suspend a sentence only if it was for five years or less.
21. His Honour reasoned to the sentence he imposed for the trafficking offence in the following way:

“In my judgment, something in the order of a six-year sentence would be appropriate.  For the assault occasioning bodily harm charge, a sentence of 12 months would seem appropriate.  For the property offences, sentences would vary as the amount involved varies amongst the various charges, but generally speaking, something in the order of two and a half years imprisonment would be appropriate.  You need to appreciate that if you add all that up, you’d be looking at a sentence of imprisonment in the order of nine years.

The task given to me is complicated by the fact that Parliament has introduced a law that requires you to serve 80 per cent of any sentence that I impose in relation to the trafficking charge.  That effect can be avoided if I am prepared to suspend the sentence at an earlier point in time.  My task is further complicated by the fact that I cannot suspend a sentence if the sentence itself is longer than five years, which, in my judgment, you probably deserve.”^[8]

22. After stating the terms of imprisonment for each offence, his Honour observed that he had reduced what he thought was appropriate for the trafficking and increased what he might otherwise have imposed for the property offences.^[9]  He noted that he had set the suspension date for the trafficking offence at the three year mark, explaining that three years was the halfway mark of what he thought was an appropriate sentence for it but for the “various other factors” he had mentioned.^[10]  He said:

“I have also set that period bearing in mind that it is necessary to acknowledge both that Parliament has introduced the 80 per cent rule that I spoke of earlier and to acknowledge that there have been significant other offending conduct which itself deserves condign punishment.”^[11]

The ground of appeal

23. The applicant, who represents himself, filed an application for leave to appeal against sentence on 8 January 2016.  The sole ground of appeal stated in that document is that the sentence is manifestly excessive.

Applicant’s submissions

24. In his written outline of argument, the applicant identified two aspects to his sentence which he submitted made it manifestly excessive.  They are:
    1. the three year period to be served under the sentence for trafficking; and
    2. the setting of a parole eligibility date, rather than suspension, for the other offences.
25. Rather than address the court orally, the applicant filed a short type-written document shortly before the hearing of the application.  In it, he placed emphasis upon an argument put forward in the written outline that his Honour had misapplied the totality principle.  In developing that argument, the applicant referred to the two options of which Gaudron and McHugh JJ spoke in Griffiths v The Queen^[12] for sentencing a person in respect of multiple offences, namely, the imposition of consecutive sentences of reduced length with or without other sentences to be served concurrently, or the imposition of a head sentence appropriate to the total criminality with all other sentences to be served concurrently.
26. The applicant contended that what the learned sentencing judge had done in reducing the sentence for the trafficking offence and increasing the sentences for the other offences “challenged” that principle.  Further, it was submitted that his Honour had erred in setting the suspension date by reference to the sentence he might otherwise have imposed for the trafficking offence.
27. With regard to the second aspect, the applicant contended that the effect of setting a parole eligibility date for the other offences was to remove the benefit of suspension of the sentence for the trafficking offence and of the totality principle.
28. The applicant submitted that he should be re-sentenced as follows:

• the sentence for the trafficking offence be varied to four years;
• all other sentences stand;
• all sentences be served concurrently; and
• that for the sentence of four years and the sentences of three years each be suspended after two and a half years.

Respondent’s submissions

29. The respondent submitted that the learned sentencing judge was correct in his view that a sentence in the order of six years would have been appropriate for the offending alone and that it would have been open to him to increase that period to reflect the additional criminality in the other offences.  The approach taken avoided that path.  It was beneficial, rather than prejudicial, to the applicant in facilitating the imposition of a sentence which could be suspended.
30. Insofar as the head sentence requires three years to be served before suspension, it is not manifestly excessive when compared with the sentence imposed in R v Clark.^[13]  To the extent that it exceeds the halfway point, it is explained in the sentencing remarks.
31. The fixing of a parole eligibility date for the other offences was justifiable in that it provides an ongoing incentive to the applicant to rehabilitate in order to maximise his prospects of release on parole near the suspension date.  It also allows for an extended period of actual incentive not to reoffend.

Discussion

32. The learned sentencing judge was referred to the decision of this Court in R v McAway.^[14]  His Honour considered that cases referred to in that decision indicated that a sentence of the order of six years was appropriate for the trafficking offence.  I respectfully agree.  It is sufficient for present purposes to refer to the following such cases.  They are instances of trafficking in circumstances reasonably comparable to those of the applicant.
33. In R v Rizk,^[15] the offender pleaded guilty to trafficking in MDMA and to possession of a quantity of it exceeding two grams.  MDMA was then a sch 2 drug.  He worked under his co-offender, Riciti.  He obtained large quantities of ecstasy from numerous suppliers at Riciti’s direction and distributed it to others for sale.  The trafficking occurred over a two and a half to three month period.  Rizk pleaded guilty.  He was found in possession of 5,063 tablets of 31.7 per cent purity totalling 445.188 grams of pure ecstasy for which he had paid $87,500.  He was 25 years old.  He had a supportive family and steady employment.  He was addicted to ecstasy.  He had no prior convictions.  This Court reduced his original sentence of eight years imprisonment with a parole recommendation after three years to six years imprisonment with a parole recommendation after two years.
34. The offender in R v P^[16] pleaded guilty to trafficking in ecstasy and cannabis (then both sch 2 drugs) and to other lesser related offences.  On the trafficking offence, he was first sentenced to nine years imprisonment with a recommendation for parole after four years.  The trafficking took place over a six month period.  He told an undercover police officer that he earned $3,000 per week from drug dealing in cannabis, ecstasy and speed and that he sold 1,000 ecstasy pills over Christmas and regularly sold them at a nightclub and at concerts attended by young people.  He had two suppliers above him in the chain of distribution and set up others below him to sell the drugs in exchange for him receiving a share in the profits.  Later, P told the undercover police officer that he could supply him with 10,000 ecstasy pills and that 200,000 would be arriving on the Gold Coast within the next fortnight.  He introduced the police officer to his supplier, R.  P and R were apprehended the following day.  Police found 2.205 kilograms of pills containing 733.5 grams of pure ecstasy in P’s suitcase.  They also found $25,000 cash, 500 grams of cannabis and small quantities of other prohibited drugs in his possession.  He fully confessed and pleaded guilty.  He had no prior relevant convictions.  He was 31 years old at sentence.  This Court substituted a sentence of six years imprisonment with parole eligibility after two and a half years because of P’s plea of guilty and cooperation with the police.
35. In R v Bellino,^[17] the offender pleaded guilty to trafficking in MDMA over a two month period and to five counts of supply, four of them being in ecstasy and constituting particulars of the trafficking, and one being in a small quantity of heroin which was either a gift or something thrown in with another dealing.  The trafficking involved four transactions resulting in the provision of 600 ecstasy tablets in return for four payments totalling $22,400.  It was not established that the offender’s profit was of a high order.  He was 29 years old at the time of his offending and had no prior convictions.  This Court reduced the effective eight year term of imprisonment imposed at first instance to six years imprisonment.  No recommendation for parole eligibility was made.
36. A sentence of six years could not have been suspended.  Had it been imposed for the trafficking, the applicant would have been required to serve 80 per cent of it, a little more than four years and nine months.  Had a longer sentence been imposed to include the criminality in the other offending, the time to be served would have been increased rateably.
37. The learned sentencing judge did not pursue that option.  He moderated the sentence for the trafficking offending but compensated for the moderation by increasing the concurrent sentences for the property offences.  His Honour did that specifically so that he could impose a suspended sentence for the trafficking offence.  That course was open to him.  Indeed, it was one which the applicant’s counsel at sentence proposed be taken.^[18]
38. The course taken finds inspiration in the preference expressed by Jerrard JA in Nagy^[19] for consecutive sentences to avoid inflating a head sentence to one of 10 years or more.  Pursuant to s 161A PSA, a sentence of that duration would automatically qualify as a serious violent offence requiring 80 per cent of it to be served.  It also serves to remind that the options outlined in Griffiths were not stated to be as exhaustive statements of all that might be done.  Those options do not address subtleties that might be seen as appropriate in order to sentence justly within a framework of mandatory provisions such as s 5(2) DMA and s 161A PSA.
39. I note that the respondent has not called into question the course taken by the learned sentencing judge.  On the other hand, the respondent did not expressly accept that, to use the words of counsel for the respondent, “the approach of the sentencing judge was appropriate in the face of” s 5(2).^[20]  The parties did not join issue on that.  The respondent preferred to rely on the fact that the course taken was, in any event, favourable to the applicant.
40. For the foregoing reasons, I am unable to accept the applicant’s contention that the learned sentencing judge “challenged” the totality principle.  I would also reject his contention that the sentence is manifestly unjust in requiring him to serve three years of imprisonment before the suspension operates.  It is true that this is 60 per cent of the head sentence.  However, it is 60 per cent of a sentence that is moderated in order to benefit the applicant substantially by avoiding his having to serve over four years and nine months imprisonment.  It is therefore unrealistic to assess whether the three years is manifestly excessive solely by reference to proportion of the moderated sentence and without regard for the benefit gained or the sentence that might otherwise have been imposed.
41. A better guide for such an assessment is the actual time that is required to be served under sentences imposed in other cases.  The offender in Clark, a female in her mid-twenties, was sentenced to three years imprisonment for trafficking.  As was required by s 5(2), a parole release date at the 80 per cent mark was set.  She therefore has to serve almost two years and five months imprisonment before being paroled.  However, hers was a less serious example of trafficking; it was conducted over a shorter period of time, some two and a half months; she had good prospects for rehabilitation; however, her criminal history was of some relevance.  Importantly, the offender’s trafficking did not have the entrepreneurial attributes exhibited by the applicant in his trafficking.  She assisted in the enterprise conducted by a Mr Andrew.  Significantly, the offender was not sentenced at the same time for substantial non-drug related offending.  The offender’s application for leave to appeal to this Court against her sentence as being manifestly excessive in which she submitted that, on a re-sentence, her three year sentence should be suspended after 12 months, was refused.  On a comparison with the period to be served by that offender, the period that the applicant must serve before his sentence is suspended, cannot be characterised as manifestly excessive.
42. Nor can I accept the applicant’s submission that his sentence is manifestly excessive on account of a parole eligibility date having been set for the other offending, rather than suspended sentences.  Certainly, his Honour was not required to suspend after three years the cumulative sentences imposed in respect of them.  In my view, the utility in this aspect of the sentence structure, which the respondent has outlined and to which I have referred, commends it as appropriate in all the circumstances.
43. Accordingly, I am unpersuaded that the applicant’s sentence is manifestly excessive.

Order

44. I would propose the following order:
    1. Application for leave to appeal against sentence refused.
45. MORRISON JA:  I have read the reasons of Gotterson JA and agree with those reasons and the order his Honour proposes.
46. DOUGLAS J:  I agree with the reasons of Gotterson JA and the order proposed.