R v Hinton[2016] QCA 316

SUPREME COURT OF QUEENSLAND

1. MORRISON JA:  I have read the reasons of Boddice J and agree with those reasons and the orders his Honour proposes.
2. PHILIP McMURDO JA:  I agree with Boddice J.
3. BODDICE J:  On 29 February 2016, the applicant pleaded guilty to one count of trafficking in dangerous drugs and four counts of unlawfully supplying weapons.  He was convicted and sentenced to eight years and 76 days imprisonment for trafficking in drugs and two years and six months imprisonment on the supply of weapon counts.  All terms of imprisonment were ordered to be served concurrently with each other but cumulatively upon 289 days still required to be served in relation to an earlier sentence in respect of which the applicant was on parole at the time of the offences.  The applicant’s parole eligibility date was set at 28 February 2019, being three years from the date of commencement of his current incarceration.
4. The applicant seeks leave to appeal those sentences of imprisonment on the basis that they were manifestly excessive.  At issue is whether the totality of the period required to be served in custody exceeded what was appropriate having regard to his criminality and his personal circumstances including the hardship he would suffer in prison as a wheelchair bound prisoner with significant medical needs.

Background

5. The applicant was born on 12 January 1981.  He was aged 31 to 32 years at the time of the commission of the offences.  He was aged 35 years at sentence.  He finished Grade 10 but left during Grade 11 as a consequence of disruptive behaviour.  He then commenced labouring type employment.
6. The applicant became a paraplegic as a consequence of a motor cycle accident in 2007.  He required extensive post-operative recovery.  He has been the recipient of a Disability Support Pension since that incident.  He subsequently developed an adjustment disorder and an addiction to illicit drugs.
7. The applicant has an extensive criminal history.  He has been previously sentenced to community based orders, suspended sentences and actual periods of imprisonment.  Relevantly, for present purposes, his past convictions include being sentenced on 28 July 2011 to an effective head sentence of two years imprisonment for various offences, including possessing schedule 1 drugs in a quantity of or exceeding schedule 3 but less than schedule 4 and two offences of unlawful possession of weapons.
8. The applicant was ordered to be released on parole from that overall effective head sentence, after serving four months, namely 28 November 2011.  The offences the subject of the present application were all committed whilst he was subject to that parole order.

Offences

9. The offence of trafficking in dangerous drugs concerned the trafficking in the dangerous drugs methylamphetamine, lysergide and gamma hydroxybutyric acid for a period of nine months from October 2012 to July 2013.  That period commenced just short of 12 months into his parole period.
10. The applicant’s trafficking involved being both a street level supplier and a wholesale supplier of drugs.  He had not less than 21 customers, a number of whom had a large customer base to which they were on-supplying drugs obtained from the applicant.
11. The applicant sold drugs in varying quantities, for significant profit.  He used a co-offender, Jarred Scott, to recover drug debts.  He supplied drugs to Scott on a daily basis, sometimes several times a day.  He also supplied drugs to other co-offenders.
12. The supply of weapon offences concerned the sourcing, modifying and on-selling of firearms to others for profit, or doing acts preparatory to the supply of such weapons.  The weapons included a military weapon.

Sentencing remarks

13. The sentencing Judge noted the applicant’s pleas of guilty and that this co-operation had saved a long trial.  The sentencing Judge also noted the need for parity with the applicant’s co-offenders.  The sentencing Judge took into account that the applicant had not offended whilst on bail and that as a consequence of his paraplegia his time in custody would be more difficult and would affect his psychological state.  The sentencing Judge also noted that as the offences had been committed whilst on parole, the applicant was required to serve any sentence imposed for the offences cumulatively on the sentences for which he had received parole.
14. The sentencing Judge took into account the applicant’s serious and prolonged criminal history, his long term addiction to drugs and the steps he had taken since being placed on parole to cease the use of illicit drugs.  The sentencing Judge noted that whilst it was to his credit that he had dealt with his drug dependence, the effect was that his selling of drugs whilst on parole was not motivated by the need to obtain drugs for himself.  Instead, it was a business conducted for profit over a long period of time.
15. The sentencing Judge noted the contents of a forensic psychological report.  The sentencing Judge accepted that the applicant had been most adversely affected by his paraplegia and a subsequent adjustment disorder but did not accept that the applicant had relapsed into amphetamine usage or had acted as a consequence of being easily influenced by his co-offenders.  The sentencing Judge also noted the applicant’s statements of previous maltreatment in prison and in hospital, and that this was suggestive of poor treatment including a lack of understanding of his medical needs.
16. After considering all of those circumstances, and taking into account the sentences imposed on the applicant’s co-offenders and other comparable sentences, the sentencing Judge found the applicant’s overall criminality supported a head sentence of nine years imprisonment.  As the applicant was still required to spend 289 in prison as a result of his breach of parole, the head sentence was reduced to a sentence of eight years and 76 days imprisonment, cumulative upon the 289 days required to be served for the breach of parole.  The applicant’s parole eligibility date was set at three years from the date of commencement of the present period of incarceration.

Submissions

17. The applicant submits the overall head sentence is manifestly excessive because he was required to serve 10 years, two months and 14 days with eligibility for parole after three years in circumstances where he would suffer greatly as a consequence of his health considerations.  The applicant submits that being in prison makes a significant difference to the treatment of his medical conditions.  The applicant had been placed on a waiting list to receive an operation for a dislodged pacemaker, causing him stress and anxiety.  There had also been an incident when his catheter bag broke and he was saturated in urine causing him embarrassment, especially as there was delay in obtaining a replacement catheter.  The applicant submits that as a consequence his time in prison is far worse than would be experienced by a healthy person.
18. The respondent submits the sentences of imprisonment imposed were not manifestly excessive in all the circumstances.  The sentencing Judge properly had regard to the comparable cases, including the sentences imposed on the applicant’s co-offenders.  The sentencing Judge also had regard to the applicant’s personal circumstances.  Whilst the applicant’s health requirements were properly to be taken into account, they had less weight as a factor in mitigation as the conditions pre-dated the offences.  There was also no evidence the applicant was at any serious risk to his health by being subject to incarceration.  His conditions could be managed appropriately.

Discussion

19. A consideration of the circumstances of the applicant and of the offences amply supports the sentencing Judge’s conclusion that the applicant’s overall criminality, even allowing for his personal circumstances and mitigating factors, justified a head sentence of nine years imprisonment.  The applicant engaged in the supply of multiple dangerous drugs over an extended period of time for profit.  He also supplied weapons for profit.  These offences were all undertaken at a time when he was subject to parole for previous offences, including drug and weapons offences.  That conduct, which was engaged in after the applicant had overcome a serious addiction to illicit drugs, was properly described by the sentencing Judge as being engaged in for profit as part of a business.
20. Importantly, the sentencing Judge, having found the applicant’s criminality overall justified a head sentence of nine years imprisonment, specifically allowed for the fact the applicant would have to serve such sentence cumulative on the balance of his earlier sentence by reducing that period so that the overall time served by the applicant was nine years imprisonment.  The sentencing Judge also made due allowance for that fact when setting the parole eligibility date at three years by fixing that parole eligibility date from the date of commencement of the applicant’s current incarceration.
21. A consideration of the sentences imposed on the applicant’s co-offenders supports the conclusion that such a sentence was not manifestly excessive.  His co-offender Scott received an overall head sentence of eight years imprisonment with parole eligibility after serving two years.^[1]  Scott was sentenced for a trafficking period of 25 months (the applicant’s trafficking period was nine months).  However, unlike Scott, the applicant did not have youth in his favour or co-operation with the authorities by providing information in respect of other offenders.  The applicant also had a more significant criminal history.  Those differences explained the disparity between the head sentences of Scott and the applicant.  The sentences imposed on the applicant’s other co-offenders, Christopher Edwards and Daniel Baker, were also distinguishable having regard to their significant co-operation with the authorities and other differing circumstances.
22. Briggs^[2] was sentenced to eight years imprisonment, with a parole eligibility date fixed after serving one-third, for trafficking for nine months.  However, his trafficking was to support his own heavy use of drugs.  Briggs also had not trafficked as a wholesaler.  The remaining comparable cases^[3] each involved trafficking over a shorter period by younger offenders who received overall effective head sentences of the same magnitude or longer than the applicant.
23. A consideration of the sentencing remarks also supports a conclusion that the sentencing Judge gave due and proper consideration to the applicant’s personal circumstances, including his paraplegia and medical conditions.  The sentencing Judge expressly took into account those matters when determining the overall effective head sentence.  Whilst the sentencing Judge was not ultimately satisfied there was evidence of maltreatment of the applicant in prison or in hospital, the sentencing Judge made the following remarks in respect of those allegations:

“I have been provided with a statement made by you making various allegations of maltreatment of you in prison and in the hospital.  There is no evidence to support them and certainly you should not expect to be humiliated or treated poorly and, in fact, your needs because of your paraplegia are great and they should be attended to properly with decent care in prison.  And if, as you say, your pacemaker in your heart has not been inserted properly or has come array then it is imperative that that be remedied, and I am sure that Corrective Services will attend to that.”

24. Having regard to the state of the evidence before the sentencing Judge such observations were appropriate and addressed any concerns in relation to the adequate treatment of the applicant’s medical conditions in custody.  Whilst those conditions will cause the applicant additional hardship to that experienced by other offenders without these conditions, the weight to be afforded to that consideration is less where, as here, the applicant engaged in this serious criminal behaviour while suffering those conditions.^[4]

Conclusions

25. The sentences of imprisonment imposed on the applicant were not manifestly excessive.  They represented a proper exercise of the sentencing discretion, having regard to the applicant’s overall criminality and allowing for his personal circumstances, including the hardship to him as a consequence of his paraplegia whilst subject to incarceration.  No error of principle has been shown in the exercise of that discretion.  There is also no basis to conclude there is an absence of parity between the applicant’s sentences and those imposed on his co-offender Scott.
26. There is no basis upon which to properly grant leave to appeal.  Any appeal against sentence would be unsuccessful.

Orders

27. I would order that leave to appeal be refused.