R v Eadie[2017] QCA 109

SUPREME COURT OF QUEENSLAND

1. SOFRONOFF P:  The applicant has applied for leave to appeal against her sentence.  For the reasons which follow, I would grant leave and allow the appeal.
2. The applicant pleaded guilty to one count of unlawfully producing a dangerous drug, methylamphetamine.  She was sentenced to a term of imprisonment of 18 months with a parole release date fixed at six months.  She had been in custody for about a month before she was released on bail pending appeal.
3. The applicant had been charged on the same indictment as her mother, Sonia Michelle Read.  Her mother had actually manufactured the drug.  Her daughter, the applicant, had assisted her by acquiring certain necessary equipment, chemicals as well as a pre-cursor drug.  The prosecution did not allege that the applicant had assisted in the actual process of manufacture.
4. The charges arose out of a search by police of Read’s home.  Police found what the prosecutor described as “all the requirements in order to produce methylamphetamine”.  Only small amounts of the actual drug were found.  The quantity of necessary chemicals for production of the drug implied that between two and 24 grams of methylamphetamine could be manufactured.  However, the quantity of pseudoephedrine that was found to have been procured by the applicant and which appeared to have been used by Read to produce methylamphetamine implied that only about two grams of the drug had been produced using the chemical supplied by the applicant to her mother.
5. The manufacture of the drug was for a commercial purpose, in the sense that Read was producing the drug for sale.  However, the quantities produced were low and it seems that it was common ground at sentence that Read had a small circle of family members and friends to whom she sold the drug.  She used the money to meet living expenses.  Read had five daughters, the youngest of whom was aged nine and was autistic.  She had the shared care, together with her daughter and a sister, of her own mother who was dying of ovarian cancer.  Her long criminal history shows that in recent years she has been unable even to pay the modest fines that had been imposed upon her.
6. It was in these circumstances that Read was conducting her small drug factory to pay rent, food bills and the like.
7. Upon arrest, the applicant immediately admitted to police that she had purchased ice (that is, the innocent kind of ice, consisting of frozen water), peroxide, cotton buds, some other small items of equipment required for production as well as a box of pseudoephedrine.  She admitted knowing that her mother was going to use the pseudoephedrine to make methylamphetamine.
8. The prosecution did not allege that the applicant stood to gain financially from her mother’s work.  She herself was not said to be a user of the drug but her partner was an addict and it was her partner’s birthday on the day following the applicant’s arrest.  She was expecting to be given a quantity of the drug by her mother so that she could give it to her partner on her birthday.  Otherwise, it appears that the applicant was a participant in the way described to help her mother to meet her living expenses.
9. In order to understand the applicant’s circumstances, it is relevant to consider the criminal history of her mother.  Read left school during her grade 10 year.  She has worked in hospitality and has a minor qualification in aged care, an area in which she has also worked.
10. When she was 21 and 22 years old, she was convicted summarily of two minor offences of stealing and possession of a pipe used for smoking a drug.  By then she had given birth to the applicant, her second daughter.  When she was 23 years old, she was convicted in the District Court of a series of offences including four counts of breaking and entering, six counts of stealing, six counts of false pretences and some other similar offences.  She was sentenced to three years imprisonment.  Three months later, she was convicted of further offences of breaking and entering and false pretences, committed after the first series of offences but, obviously, before she had been sentenced for them.
11. After her release on parole, and while on parole, she was convicted of some minor drug possession charges for which she was fined.
12. In August 2000 she applied for fine option orders in respect of offences committed between April 1996 and September 1999 for which she had been fined.  These were granted but in due course she breached the terms of such orders.  The relevant offences included driving an uninsured and unregistered vehicle, permitting the use of an unregistered vehicle and failing to vote.  The nature of some of these charges and the fact that she was granted relief from payment even of small fines implies that her financial circumstances were very poor.
13. She continued to commit minor offences which were dealt with in the Magistrates’ Court until 2013.  Her latest series of offences, before committing the present offence of production, were drug offences that were dealt with summarily.
14. Her daughter, the applicant, was born in 1991, just before Read’s criminal history began.
15. According to her counsel, the applicant was evicted from home at the age of 15 and later went to live with her older sister.  She left school during grade 11.  She had never had a job.  Her relationship with her mother was said to have been “difficult”.  She became pregnant at the age of 19 and was and remains her son’s sole support.
16. As has been said, upon her arrest she immediately admitted her role to police and was released on bail.
17. The offence with which she was charged was committed between 5th and 7th August 2013.  An indictment charging her with that offence was not presented until one year and eight months later, on 17 April 2015.  The case was mentioned eight times before she was finally arraigned on 16 May 2016 and, relevantly, pleaded not guilty to this offence.  The case was mentioned before the Court again on 24 October 2016 and listed for a four day trial to commence on 28 November 2016.  On that date the applicant pleaded guilty.
18. According to her counsel, during a conference that he had with the applicant in December 2015, before her arraignment, the applicant instructed him that she would plead guilty.  This was, of course, natural having regard to her candid admissions to police immediately upon her arrest.  That instruction was reaffirmed at conferences in January and February 2016.  Her plea of not guilty upon her arraignment on 16 May 2016 was, therefore, inconsistent with her settled instructions that had been in place for six months.  It appears to have been due to a solicitor appearing for her on that occasion from the same firm that she had instructed but who was not familiar with the matter.  This account by the applicant’s counsel of the explanation for the apparently late plea of guilty was accepted by the prosecutor and by the learned sentencing judge.  It follows that, but for an error on the part of her solicitor, the applicant would have pleaded guilty at the first opportunity to do so and must, for the purposes of sentencing, be taken to have pleaded guilty on that occasion.
19. The applicant’s criminal history was said to mirror that of her mother and that is so to a degree but with one important difference.
20. Read was sentenced to a term of imprisonment at the age of 23 for offences of dishonesty which included breaking and entering.  That did not deter her from committing similar offences afterwards and as late as 2006 when she was 36 years old.  The applicant’s offences were minor offences of stealing and, more recently, minor drug offences and one set of offences that arose out of an emotional break up with her partner.
21. In 2007, 2010 and 2013 she was convicted summarily of offences of trespass and stealing and like offences.  No convictions were recorded.  In 2015 she was convicted of contravening a domestic violence order, contravening a direction and being in possession of a drug utensil.  These offences were part of the events surrounding the break-up of her relationship with her then partner, to whom she had intended to give some of her mother’s product.  She herself does not use that particular drug although, having regard to her history, she uses drugs of some kind.
22. In his sentencing remarks, the learned sentencing judge observed:

“You assisted [your mother] in the production.  A significant way in which you assisted her was to obtain pseudoephedrine and other equipment or materials to be used with respect to production.  Your fingerprints were found on boxes but also other items or articles.”

23. In relation to the applicant’s attitude to the charge against her, his Honour said:

“Yours is technically speaking not an early or timing (sic. timely?) plea in the way in which your mother’s plea was but there might be an explanation for that that does – that serves to explain what happened.”

24. His Honour then recounted what her counsel had submitted by way of explaining her apparently late plea.  His Honour then continued:

“…therefore, I take the view that I’m entitled to proceed on the basis that there has been some cooperation with the administration of justice.”

25. After saying that he took into account that the applicant had had no share in the income that her mother generated from sales, his Honour said:

“In the circumstances that you were a party to the production as one who gave assistance in sourcing pseudoephedrine and other materials or substances and in some other material perhaps physical assistance, I take the view that your offending as a producer is less serious than your mother’s.  In the circumstances, I sentence you to a term of imprisonment of 18 months.  I will fix a parole release date at 28 May 2017…”.

26. In my respectful opinion his Honour made two errors of fact in the course of imposing his sentence.  The first is that his Honour sentenced the applicant upon the basis that there had been “some cooperation with the administration of justice”.  In fact, the applicant had candidly admitted her role in the offence when questioned by police immediately after her arrest.  She also volunteered facts that implicated the principal offender, her mother.  Further, she had done all she could have done to ensure the entry of a guilty plea at the earliest possible date by instructing her barrister and solicitors that she would plead guilty.  By some error in communication for which she was not responsible, she pleaded not guilty at her arraignment, some six months before her sentence.  Consequently, there was not merely “some cooperation with the administration of justice” by the applicant.  Rather, her cooperation had been absolute.
27. The second error concerns the extent of the applicant’s participation in the offence.  It appears, from the transcript, that his Honour had inferred from the presence of the applicant’s fingerprints on some of the equipment used to manufacture the drug that she had assisted her mother in more than purchasing necessary items.  This inference was not correct, as the prosecution conceded below and on appeal.
28. The applicant was, therefore, sentenced upon the basis of two errors of fact and it follows that the sentence imposed by his Honour must be set aside.
29. In my view, while Read’s production of methylamphetamine had a commercial purpose, in the sense that she intended to sell the drug after she had made it, this enterprise of hers was a very modest one, evidently undertaken by a woman who was in desperate financial straits, not least because she was supporting her dependant children and her mother.  The applicant’s criminality was even more modest.  She evidently gave her help because Read was her mother.  She was living in her mother’s house where she supported her young son.  As a side benefit, she expected to be given a small quantity of the drug which she could give as a gift to her then partner but this was hardly capable of being a motive for what she did.  Her assistance, while criminal, did not evidence deep involvement in a criminal enterprise; nor was it undertaken for personal gain.
30. Further, the actual manufacture of drugs that was the subject of the charge against her involved a small quantity of pre-cursor drug which would have resulted in the production of a mere two grams or so of methylamphetamine.
31. In addition, upon being found out, she assisted the authorities in making their case against her and against her mother and pleaded guilty as soon as possible.
32. These are not the actions of a criminal in respect of whom the Court should hold concerns about recidivism in relation to serious drug offences.
33. It is true that she re-offended while on bail for this offence and that this offence was itself committed during the last stages of probation that had been granted her in respect of stealing charges of which she had been convicted summarily.  However, her history of offending and re-offending reveals a pattern that is consistent with her situation as a young woman who was brought up by a dysfunctional and dishonest mother and who, as a result, left school early and who has since gained no education or skills.  She has never been employed.  Her offences were, until this offence, all summary offences.  They were minor offences for some of which no conviction was recorded and for all of which the penalty was very lenient, reflecting the scale of the offending.
34. In my respectful opinion, while the life that this criminal history implies is a wretched one, it is not accurate to infer that, in respect of offences of the character with which this appeal is concerned, there is any concern about rehabilitation or that the applicant is incorrigible.
35. The applicant herself is very young.  She became pregnant when she was only 19 and was 22 at the date she committed this offence.  Her son is now five or six years old and attends primary school.  The boy’s father has no role in his up-bringing.  The applicant is her son’s sole support.  She also cares for her mother’s children.
36. The offence was committed in August 2013 and the applicant was arrested at that time.  For reasons that are not clear, the indictment against her was not presented until 17 April 2015 and she was only arraigned a year later on 16 May 2016.  She entered her plea of guilty at the hearing set down for 28 November 2016.  There is no reason to think that prosecution should be blamed for this delay in proceedings; the reasons for it were not before the Court in any detail but it has not been suggested that there were not good reasons.  It is also clear that the applicant was not the cause of the delay.
37. The relevant fact remains that the applicant has had this charge, one for which imprisonment was a real likelihood, hanging over her for more than three full years and that process has not yet ended, four years after her arrest.  That is a significant factor that weighs in favour of a more lenient penalty than might otherwise have been imposed for this kind of offence.
38. In summary, the dominant factor against the applicant lies in the seriousness of the offence itself.  Previous sentences and previous authorities of this Court demonstrate that participation in the offence of producing methylamphetamine will, in general, result in a sentence of imprisonment although exceptional cases will arise.  The production of this vicious drug with a view to its distribution is something that the sentences that are imposed should serve to deter because of the known evil consequences of its use and the ease of its production.
39. Otherwise, the applicant’s counsel on appeal points, rightly, to the applicant’s youth, to her previous criminal history of only minor offences not comparable to the present offence, to her role as a mother, to the fact that her involvement was evidently motivated by her wrongheaded desire to help her own mother make ends meet, to the long delay during which the applicant suffered with an uncertain future, and to his client’s wholehearted cooperation with police and prosecution authorities after she was caught.
40. In my respectful opinion, cases like R v Day & Gill [2005] QCA 100 and R v Sabine [2007] QCA 220 and those cited in them are not to the point.  They were concerned with persons whose participation in the production of drugs was deeper and who were motivated by profit and some of whom, to some degree or other, did not cooperate with authorities.  In addition, they were not cases, like the present, where the offence was committed by a young single mother, whose participation in the crime was not great and who was motivated by some distorted relationship with her mother and who readily admitted her guilt.
41. I would grant leave to appeal, allow the appeal, set aside the sentence imposed upon her on 28 November 2016 and, in its place, sentence the applicant to a term of imprisonment of 12 months, and order that she be released upon parole forthwith.
42. The order of the Court is:

1. Leave to appeal granted.
2. Appeal allowed.
3. Set aside the sentence imposed on 28 November 2016.
4. The applicant is sentenced to a term of imprisonment for 12 months.
5. Declare that the period of 26 days from 28 November 2016 to 22 December 2016 be imprisonment already served.
6. Order that the applicant’s parole release date be fixed as today.

43. FRASER JA:  I agree with the reasons for judgment of the President and the orders proposed by his Honour.
44. HENRY J:  I have read the reasons of Sofronoff P.  I agree with those reasons and the orders proposed.