R v Hunt[2016] QCA 297

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  The applicant, Malcolm Hunt, pleaded guilty on 23 June 2016 to accessory after the fact to dangerous conduct with a weapon in May 2013; four counts of unlawful possessing of a motor vehicle between May and July 2013; trafficking in methylamphetamine between 5 May and 24 October 2013; producing methylamphetamine between 9 and 13 May 2013; permitting use of a place for producing methylamphetamine on 8 September 2013; possessing methylamphetamine on 23 October 2013; possessing things used in connection with supplying a dangerous drug on 23 October 2013; and summary offences of disqualified driving, possessing utensils and pipes; possessing a restricted drug and possessing explosives without authority, all on 23 October 2013.
2. He was sentenced to seven years imprisonment on the trafficking and to lesser concurrent sentences on the remaining indictable drug offences and the accessory after the fact.  On each count of unlawfully possessing a motor vehicle he was sentenced to 12 months imprisonment, concurrent with each other but cumulative on the seven year term of imprisonment.  He was convicted but not further punished on the summary offences.  Parole eligibility was fixed at 23 December 2017, that is, after taking into account 402 days of pre-sentence custody, at one third of the eight year sentence.  He has applied for leave to appeal against that sentence, contending it was manifestly excessive in light of the sentences imposed on his co-offenders, Michael Baradel and Stephen Rae.  He emphasises that this Court’s reasons for reducing Rae’s sentence^[1] were not available to the sentencing judge.  He submits they demonstrate that the applicant’s sentence is manifestly excessive and that he has a justifiable sense of grievance when comparing his sentence to those of Baradel and particularly Rae.

Antecedents

3. He was 41 at sentence and 38 at the time of the offending.  He had a lengthy criminal history commencing in 1993, including property and drug offences.^[2]  In May 2003 he was sentenced for multiple counts of possessing dangerous drugs and related offences to four years imprisonment, suspended after serving 15 months, with an operational period of five years.  In October 2008 he was sentenced for offences committed in 2006 against s 9A(1) Drugs Misuse Act 1986 (Qld) to 12 months imprisonment to be served cumulatively on the activated suspended sentence.  He had no subsequent criminal convictions, although he had an extensive traffic history.  He was arrested on the present offences on 12 November 2013 and remanded in custody until obtaining bail on 18 December 2014.^[3]

The circumstances of the offending

4. The circumstances of his present offending were set out in a schedule of facts.^[4]  In January 2013 police began an investigation into the suspected trafficking of methylamphetamine out of a mechanic workshop at Richlands operated by the applicant and Baradel.  Intercepted telephone calls in May 2013 revealed that they were producing or sourcing methylamphetamine and had supplied or attempted to supply the drug on 78 occasions to 28 different customers, usually arranging for the customers to come to their business premises.  The supplies generally ranged from small personal amounts between 1.75 and 3.5 grams but were as large as two ounces on one occasion.  Methylamphetamine was produced at the business premises in May and September 2013.  After Baradel was arrested, the applicant continued to traffic in methylamphetamine for a further six weeks.
5. On 23 October 2013, police intercepted him while driving away from his business premises.  He was in possession of a small amount of methylamphetamine.  Police executed a search warrant at his house where they found a number of drug related items and notebooks containing ledgers of drug transactions which showed he had sold 219.75 grams of methylamphetamine for $71,300, having received $68,500 with the remainder outstanding on credit.  A financial analysis of his bank accounts showed $2,500 of unexplained income between May and November 2013.
6. Police also ascertained that the applicant was involved in changing number plates and wheels of stolen vehicles and that, in all, he stored four stolen vehicles at his business premises.  All vehicles were recovered.
7. In May 2013 Jayd Graham fired three gunshots at a house in Albany Creek because an occupant of the house owed a $1,000 drug debt.  The debtor lived at the house with his parents and younger siblings.  One bullet narrowly missed two teenage boys.  The applicant advised Graham on how best to avoid detection.

Baradel’s sentence

8. Baradel pleaded guilty to trafficking in methylamphetamine between 5 May and 9 September 2013; two counts of producing methylamphetamine; and possessing things used in connection with producing a dangerous drug.  He was sentenced to five years and six months imprisonment for the trafficking and to lesser concurrent terms of imprisonment on the remaining counts.  The sentence was effectively one of six years imprisonment as the judge allowed a six month discount in light of unexplained delay in prosecuting the matters.  He was 22 when he offended and 24 at sentence.  The judge considered that his criminal history, one count of possession of tainted property for which he was placed on a good behaviour bond without conviction, was irrelevant.  He had made good progress with rehabilitation and parole eligibility was set after one third of that sentence.  His application for leave to appeal against sentence was refused.^[5]

The submissions at the applicant’s sentence

9. The prosecutor at sentence submitted that there was a level of sophistication in the use of a business premises as a cover for the drug offending.  General deterrence was important.  The offences involving vehicles were more serious than joyriding, although not part of a commercial enterprise in “rebirthing vehicles”, and a cumulative sentence was open.^[6]
10. Defence counsel tendered course certificates completed by the applicant whilst in pre-sentence custody,^[7] together with 13 clear urine tests from March 2015 to May 2016 and emphasised his rehabilitation.^[8]  He had pleaded guilty at an early time after a full hand-up committal.  Counsel referred to Rae’s sentence, initially six years imprisonment with parole eligibility at 18 months, which was reduced on appeal to five years imprisonment suspended on the day of the hearing of Rae’s appeal, with an operational period of five years.  The reasons for that order had then not been published.  Counsel emphasised that the applicant’s mechanic business, in which he had invested all his savings, was not prospering.  He was working in two full time jobs to cover business debts and became addicted to ice.  He committed the offences in an attempt to fund his addiction and keep his business afloat.  Following his release from prison on bail, he had been in steady employment and drug free for the past 18 months.  He had three sons aged between 18 and five and was an involved father.

The judge’s sentencing reasons

11. In sentencing, the judge noted that the applicant’s most serious offence was trafficking.  The judge observed that Baradel was much younger than the applicant and his trafficking concluded in September 2013 whereas, after Baradel’s arrest, the applicant continued to traffic for a further six weeks.  The applicant’s trafficking was mid-range, not street level.  He had voluntarily contacted Graham having heard he had fired shots into a house in furtherance of the collection of a drug debt.  The applicant went so far as to offer to burn the car that Graham had used in committing that offence.  The unlawful possessing of motor vehicle offences involved some organisation, a repeated pattern and a degree of criminality.
12. Her Honour considered the appellant’s urine analysis tests showed he had remained drug free since his release on bail, quite an impressive feat.^[9]  He had also made sound efforts to rehabilitate whilst on remand for 14 months.  He had entered an early guilty plea.  Baradel’s sentence should be treated as one of six years imprisonment.  He was younger, had only a minor criminal history, trafficked for a shorter period and also had good evidence of rehabilitation.  Rae’s trafficking was part of the same operation but his sentence was not helpful so far as parity was concerned.^[10]  R v Taylor,^[11] R v Barton,^[12] R v Hennig,^[13] and R v Ungvari^[14] supported the applicant should receive a sentence in the range of seven to eight years imprisonment.  The applicant’s counsel had relied on R v Tout^[15] where a sentence of six years imprisonment was imposed but the trafficking in that case was not as significant as here.
13. The judge concluded that seven years imprisonment was appropriate on the trafficking offence, with lesser concurrent sentences on all remaining offences but for the unlawfully possessing motor vehicle offences.  On those offences, sentences of 12 months imprisonment were imposed, concurrent with each other but cumulative with the trafficking sentence.  Parole eligibility was fixed at effectively one third of the total eight year period of imprisonment.^[16]

Rae’s sentence

14. Rae pleaded guilty on 27 March 2015 to extortion committed on 6 September 2013.  On 21 September 2015 he additionally pleaded guilty to trafficking in methylamphetamine between 6 May and 18 October 2013 and two counts of supplying cannabis during that period.  He was 43 at sentence and 41 at the time of his offending.  He had a significant criminal history for offences of dishonesty, drugs and sexual assault but had not previously been sentenced to a term of actual imprisonment.  His offending came to light during the police investigation targeting Baradel and the applicant.  Rae sourced methylamphetamine from Baradel, the applicant and others.  He on-sold to 29 customers on about 140 occasions, usually in small quantities but sometimes as much as 7 grams.  He sold drugs almost daily during the five month trafficking period.  He also supplied cannabis, usually in small amounts but on one occasion he supplied one pound for $3,600.
15. He was sentenced to six years imprisonment on the trafficking charge, to lesser concurrent terms of imprisonment on the remaining drug charges, and to three years concurrent imprisonment on the extortion charge.  His most recent offending was during the operational period of a suspended 12 month sentence which he was also ordered to serve concurrently.  Parole eligibility was set after 18 months.
16. He successfully applied for leave to appeal against his sentence contending that insufficient weight was given to his significant co-operation with police and that the sentences were manifestly excessive having regard to those imposed on Baradel.
17. The police discovered Rae’s involvement in the extortion charge whilst investigating the drug offences.  Jacob Ryan was unhappy with an out of court settlement in respect of a debt.  He suggested that Rae “hustle” the complainant to recover the money and they would “go halves” in the proceeds.  Rae, wearing a beanie and skull-type mask, rode his Harley Davidson motorbike to the complainant’s company premises.  He said he was there to collect $32,000: $25,000 now and the rest in a week.  The complainant was not present and an employee said there was no money on the premises.  Rae said he would return in a week.  Police intercepted a phone call in which Ryan told him to “put as much shit on him as you can” and to “fuckin’ stick it up the cunt” and Rae agreed to “get the cunt.”  A few days later, Ryan provided the complainant’s phone number and Rae called him from Ryan’s office.  Police intercepted the call in which Rae made various threats.  He was subsequently charged with extortion.  He made full admissions and implicated Ryan, later providing a signed statement.  Police then charged Ryan who initially claimed Rae was acting alone.  He later conceded that Rae phoned the complainant from his office but claimed he could not hear what was said.  Rae pleaded guilty to extortion whilst Ryan initially indicated he was going to trial.  After a number of unsuccessful pre-trial hearings, Ryan pleaded guilty on 18 September 2015.  He was sentenced on 15 December 2015, after Rae’s sentence, to two years imprisonment, wholly suspended, with an operational period of three years on a factual basis consistent with Rae’s statement to police and evidence at the pre-trial hearing.^[17]
18. At Rae’s sentence, the prosecutor submitted that he should be given credit for his early guilty pleas, especially on the extortion charge in which he had genuinely co-operated with the authorities and was remorseful.  The sentencing judge stated he would give effect to Rae’s significant co-operation by imposing concurrent sentences for all offending, including the previously suspended sentence.
19. This Court determined that, although Rae had pleaded guilty to grossly anti-social conduct warranting a firm deterrent penalty and was a mature man with previous convictions, there were mitigating features.  He had not previously been sentenced to a term of imprisonment.  He offended whilst in dire financial trouble which had contributed to his downward spiral into drug addiction.  He had rehabilitated with clear drug tests and excellent character references and had a stable marriage and two dependent children.  Provided he abstained from illicit drug use he was at a low risk of re-offending.  His significant co-operation on the extortion offence had to be reflected in mitigation of the sentence on all counts.  His case was distinguishable from that of Baradel and Hunt.^[18]  He was trading at a lower level than Baradel and should have received a slightly lesser penalty.  A head sentence of five years imprisonment was appropriate for the drug offending.  Rae’s sentence for extortion should reflect parity with Ryan’s sentence; a sentence of two years imprisonment, fully suspended, with an operational period of three years was appropriate.  In light of his special co-operation and his rehabilitation, the 12 month, previously fully suspended, term of imprisonment for sexual assault should be served concurrently.^[19]  The global sentence of six years imprisonment imposed at first instance was therefore manifestly excessive.^[20]  The mitigating features warranted a global head sentence of five years imprisonment.^[21]  To assist his rehabilitation, on one count of supplying dangerous drugs he was placed on probation with special conditions relating to substance abuse.^[22]

Conclusion

20. The applicant was a mature man with a concerning criminal history for like offending.  He had been sentenced to significant past terms of imprisonment and had breached a suspended sentence.  Most recently, he pleaded guilty not only to trafficking in and producing methylamphetamine, but also to offences of dishonesty involving motor vehicles.  Additionally, his assistance to Graham as an accessory after the fact, placed his drug trafficking in a sinister context and highlighted its gravely anti-social and dangerous nature.  Whilst he and Baradel trafficked at a similar level, the applicant was much older, continued to traffic over a further six week period, and had an extensive relevant criminal history.  Baradel was sentenced only on drug offences, whereas the applicant was also sentenced on the motor vehicle offences and the accessory after the fact offence.  Baradel’s sentence was effectively one of six years with parole eligibility after one third whereas the applicant’s sentence was effectively eight years imprisonment with parole eligibility after one third.  An additional sentence of two years imprisonment in the applicant’s case, once all relevant circumstances are considered, does not give rise to a justifiable sense of grievance.
21. Rae’s sentence is even less comparable.  Although Rae was a mature man, unlike the applicant, he had not previously been sentenced to a term of imprisonment.  Although he committed the additional offence of extortion, he gave significant co-operation to the police and the principal offender in the extortion offence, Ryan, was not sentenced to actual imprisonment.  In these circumstances, it would have been unjust to sentence Rae to any additional term of imprisonment arising from that offence.  Rae was not convicted of producing methylamphetamine and his trafficking was at a lower level than that of the applicant.  The suspended sentence Rae was required to serve concurrently did not concern drugs or dishonesty.  In light of those circumstances, the applicant could not have a justifiable sense of grievance that Rae’s head sentence was three years less than his.
22. The applicant has not demonstrated that his sentence was manifestly excessive or that he has a justifiable sense of grievance when comparing his sentence to those of Baradel and Rae.  I would grant the application for leave to appeal but dismiss the appeal against sentence.
23. MORRISON JA:  I have read the reasons of the President and agree with those reasons and the orders her Honour proposes.
24. MULLINS J:  I agree with the President.