R v Strutt[2017] QCA 195

COURT OF APPEAL

SOFRONOFF P

MORRISON JA

FLANAGAN J

CA No 80 of 2017

SC No 801 of 2015

SC No 374 of 2017

SC No 376 of 2017

THE QUEEN

v

STRUTT, Trevor Geoffrey Applicant

BRISBANE

WEDNESDAY, 6 SEPTEMBER 2017

JUDGMENT

FLANAGAN J:  On 11 November 2016, the applicant pleaded guilty to 21 offences.  The most serious offence was count 1 on the indictment, trafficking in a dangerous drug.  A number of the other counts related to the trafficking.  Count 2 concerned the supply of a dangerous drug; count 3, producing a dangerous drug; and counts 5, 6 and 7 were each in relation to possessing a dangerous drug.  Counts 12 and 13 concerned possessing relevant things and items for use in connection with the crime of producing a dangerous drug.

The applicant, in conducting his trafficking business, was sometimes paid in stolen goods.  Counts 17, 18, 20, 22, 24, 26 and 28 all concerned the receipt by the applicant of tainted property.  Count 8 to 11 concerned the applicant being in possession of dangerous drugs which were not the subject of the trafficking.  Counts 14 and 15 were offences of being in possession of weapons, namely, a sawn-off shotgun and a Taser.

The applicant was sentenced on 23 March 2017.  The sentence was complicated by the fact that all counts on the indictment had been committed by the applicant in breach of a suspended sentence imposed by the Southport Magistrates Court on 21 July 2011 and four suspended sentences imposed by the Queensland Supreme Court on 5 October 2012.

The commission of the offences for which the applicant was sentenced also constituted a breach of probation imposed on 5 October 2012.  The offences for which suspended sentences were imposed in October 2012 included trafficking in dangerous drugs as well as possession of dangerous drugs and other drug-related offences.

The learned sentencing judge imposed a head sentence for the trafficking offence of 10 years which carried a declaration pursuant to s 161B of the Penalties and Sentences Act 1992 that the conviction be a conviction of a serious violent offence.  For counts 2, 3, 5, 6, 7, 12, 13, 17, 18, 20, 22, 24, 26 and 28, which all involved conduct relevant to the trafficking offence, convictions were recorded but the applicant was not further punished.  For counts 8, 9, 10 and 11, the applicant was sentenced to imprisonment for a period of two months with convictions recorded.  For counts 14 and 15, being the weapons offences, he was sentenced to imprisonment for a period of three months with convictions recorded.  A period of 444 days spent in pre-sentence custody was declared.  For the breach of probation, his Honour found the breach proved and directed that no further action be taken with respect to it.

As to the suspended sentence imposed by the Southport Magistrates Court, his Honour ordered that the applicant serve the whole of the suspended imprisonment of four months.  As to the suspended sentences imposed by Peter Lyons J in the Supreme Court, each of those sentences had 1,085 days that could be activated.  The learned sentencing judge only activated half of that period and ordered that the applicant serve 542 days.  The primary consideration for his Honour in only activating half of the period of 1,085 days was totality.  The activated sentence of four months was ordered to be concurrent with the activated sentence of 542 days.

His Honour further directed, pursuant to s 156 of the Penalties and Sentences Act, that the imprisonment in respect of counts 1, 8, 9, 10, 11, 14 and 15 start from the end of the period of imprisonment that the applicant had been sentenced to serve by the orders requiring him to serve 542 days of the four sentences of suspended imprisonment imposed on 5 October 2012.

The applicant seeks leave to appeal against sentence.  The sole ground is that the sentence imposed was manifestly excessive.  The applicant does not seek to establish this ground by identifying any specific error in the exercise of the sentencing discretion.  Rather, the applicant submits that a comparison of four recent cases involving “more serious criminality” discloses that the sentence of 10 years’ imprisonment imposed here is manifestly excessive.

The four cases referred to are R v Galeano [2013] QCA 51, R v Barker [2015] QCA 215, R v Gordon [2016] QCA 10 and R v Jacobs [2016] QCA 28.  At sentence, neither the Crown Prosecutor, nor counsel for the applicant below, referred his Honour to any of these comparative cases.  The Crown Prosecutor did, however, refer the learned sentencing judge to R v Raciti [2004] QCA 359, R v McGinniss [2015] QCA 34, R v Feakes [2009] QCA 376, R v Kalaja [2012] QCA 329 and R v Rodd; Ex parte Attorney-General (Qld) [2008] QCA 341.

These cases established an appropriate sentencing range for trafficking in a Schedule 1 drug upon a plea of guilty in the order of 10 to 12 years.

The difficulty with the applicant suggesting appellable error by reference to four recent comparatives, to which the learned sentencing judge was not referred, is that as observed by Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584 at [58]:

“[A]ppellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases.  Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.”

To similar effect is the observation of Fraser JA in R v Goodwin; ex parte Attorney-General (Qld) [2014] QCA 345 at [5]:

“Whether or not a sentence is manifestly inadequate or manifestly excessive is not to be decided by reference to a predetermined range of available sentences but by reference to all of the factors relevant to sentence.”

The present offending took place in the context that at the time of the commission of the offences, the applicant was in breach of suspended sentences of imprisonment imposed on 21 July 2011 and 5 October 2012, as well as breaching a three year probation order.  As observed by the learned sentencing judge, the applicant must have appreciated each day that he was engaged in the trafficking business that he was doing so with suspended sentences of imprisonment hanging over his head.

The head sentence imposed, therefore, had to reflect the particular need for personal deterrence in light of the applicant’s criminal history.  The applicant was born in August, 1986.  He was 27 years of age at the time of the offending.  His antecedents were set out in a psychologist’s report, which was tendered.  The circumstances of the trafficking offence was that over a period of approximately five months, September 2013 to January 2014, the applicant carried on the business of trafficking in substantial quantities of methylamphetamine and cannabis, as well as trafficking in relatively small quantities of cocaine and ecstasy.

The business was conducted at both a wholesale and retail level.  It involved three first schedule drugs and a second schedule drug.  The applicant sold drugs for money and in exchange for items of stolen property, as well as pseudoephedrine, which he acquired for the purpose of making more methylamphetamine with which to trade.  The trafficking business included a laboratory production of methylamphetamine.  It generated a substantial income and a conservative approximation of total turnover was in the order of $150,000 to $208,000.  This approximation does not include any allowance for the stolen property that was exchanged for drugs.  Nor does it attempt to value the pseudoephedrine that was received in exchange for drugs.

Whilst the profit derived is unknown, it was accepted to be “inferentially significant”.  An estimate of the gross amount of drugs sold and turnover for those trafficked produced the following results:

• methylamphetamine, 392.5 grams at $175,000;
• cannabis, between 1,700 and more than 3,700 grams at or about $30,600;
• cocaine and ecstasy sales were of, comparatively, insignificant amounts.

As noted by the learned sentencing judge, the weapons offence bore some relationship to the perception that the applicant needed to protect his business.  The applicant had also set up a CCTV at his house.  Intercepted communications captured transactions over a 52 day period, which revealed that the applicant had over 100 customers and he was engaged in somewhere between 180 and 317 drug deals, selling drugs on multiple occasions each day during the trafficking period.

The applicant also manufactured methylamphetamine and would discuss the “cooks” which resulted in the production of methylamphetamine.  The laboratory was discovered after police executed a search warrant at the applicant’s home.  The search also revealed quantities of ecstasy, cocaine, steroids, Xanax and a large amount of methylamphetamine, as well as two weapons, a sawn-off shotgun and a Taser that did not work.  Also found was a significant quantity of stolen property worth more than $9,000.

The telephone intercepts reveal that as well as methylamphetamine and cannabis, the applicant trafficked in cocaine on 10 occasions and ecstasy on 21 occasions.

The applicant was living a financially lucrative lifestyle.  He was recorded as discussing having enough money to “buy a house”.  His Honour identified some factors in mitigation, including the applicant’s plea of guilty and the fact that he was drug dependent at the time he committed the offences.

His Honour noted that at the time he was sentenced before Peter Lyons J in October 2012, the applicant had stated that he was on the path to rehabilitation.  The learned sentencing judge noted that whilst the applicant had been drug free at the time of sentencing, his history of addiction to dangerous substances was such that it indicated that he was at considerable risk of relapse.

The cases to which the applicant refers all involved longer periods of trafficking.  In Galeano, for example, the trafficking was over a period of two years and three months.  Galeano had a prior conviction for trafficking as well as convictions for weapons and property offences.  The trafficking business generated sales of approximately $390,000.  The Court of Appeal (Gotterson JA, with whom McMurdo P agreed with McMeekin J dissenting) allowed the appeal to the extent of substituting a term of nine years’ imprisonment to the term imposed of 10 years.

The majority determined that the sentence required adjusting to give due allowance for the totality of the mitigating circumstances, which included Galeano’s cooperation with police and the significant injuries he had suffered as a result of his arrest.  Neither of these mitigating factors arise in the present case.  Further, even though Galeano had a previous conviction for trafficking, he had not breached any suspended sentences or parole orders by his offending.

This important distinction is also not found in R v Barker.  Barker was sentenced on the basis of being a wholesale supplier of drugs to four individuals for commercial gain over a period of approximately 10 months.  There was evidence of unexplained wealth or unsourced income for the relevant period of approximately $1.6 million, including $995,000 secreted on the applicant’s property.  Whilst Barker was not addicted to drugs, as the present applicant, he had no relevant criminal history.

Jacobs had previously been sentenced to 14 years’ imprisonment for trafficking in dangerous drugs for almost three years between 1992 and 1995.  The period of trafficking for which he was sentenced subsequently was between 30 August 2011 and 24 April 2012.  He was sentenced to 10 years’ imprisonment on the trafficking count.  His unexplained income over three months was in excess of $280,000 and he spent approximately $650,000 developing real estate on the Gold Coast.  He used intimidation and threats and engaged in home invasions to recover or enforce drug debts.

At the time of the offending, Jacobs was subject to two suspended sentences imposed in April 2011 for supplying dangerous drugs.  The overall outcome of Jacobs’ sentence was a period of imprisonment of 11 and a half years with an eligibility for parole after eight years and nine months.  It should be noted that Jacob did not complain of the length of his sentence of 10 years for the trafficking offence but, rather, the imposition of a serious violent offence declaration.  This demonstrated a misunderstanding of the consequence of the sentence being one of 10 years, that it attracted an automatic declaration.

An important consideration was that Jacobs had been on remand for three years and had demonstrated exemplary behaviour, including assisting other prisoners.  Whilst Jacobs’ offending may be viewed as objectively more serious, the fact that the 10 year sentence was not interfered with does not, in itself, support the applicant’s submission that the sentence of 10 years’ imprisonment imposed here is manifestly excessive.

As to Gordon, whilst the period of trafficking was significant, being four years and nine months, Gordon was only 21 years of age at the commencement of the offending.  He started using cannabis when he was 12 to 13 years old and methylamphetamine when he was aged 16 to 17.  Gordon’s participation in drug trafficking continued over the periods alleged, notwithstanding his apprehension for drug related activity.  He had been released on bail on 21 June 2012, as a result of which, his continued trafficking occurred whilst he was on bail.  Gordon, unlike the present applicant, was not, however, subject to any suspended sentences or a probation order at the time of his offending.

Counsel for the applicant referred to his Honour’s comment at page 49 of the appeal record, transcript 1-17, lines 29 to 30 that:

“It is often interesting to start from the position of the sentence which would have been imposed had there been a trial.”

His Honour did however, note that for sentences for trafficking in a schedule 1 drug after a plea of guilty, in particular, sentences of 12 years, the starting point must have been greater than 14 years.  Counsel referred to three appeals against sentence after trial  namely, R v Milos [2014] QCA 314, R v Versac [2014] QCA 181 and R v Heilbronn [2017] QCA 21.  These cases do not, in my view, support the submission that a starting point of approximately 13 years constituted an error.  None of the comparatives of the sentences imposed after a plea of guilty establish that the sentence was manifestly excessive.  As observed by Fraser JA in McGinniss:

“[O]ffenders who have pleaded guilty (to trafficking) have commonly been sentenced to terms of imprisonment between 10 and 12 years.”

This is the same range identified by McMurdo P in R v Feakes [2009] QCA 376 at [33].  As correctly submitted by the Crown, Fraser JA’s statement in McGinnis is a reference to those who traffic at a significant level for a Schedule 1 drug, but all of whom had mitigating features.  The applicant here was sentenced within that level for his offending.

The applicant’s alternative submission is that the sentence of 10 years cumulative with a sentence of 542 days imposed regarding the suspended sentences produces a result that renders the totality of the sentence crushing in its effect.  This submission shall be rejected.  It is readily apparent from a review of the sentencing proceedings that the learned sentencing judge was acutely aware of totality considerations.  There is no dispute that the applicant’s offending warranted the activation of the whole of the 1,085 days of the suspended sentences.

His Honour however, by reference to considerations of totality, only required the applicant to serve 542 days of the four sentences of suspended imprisonment.  His Honour also made the activated four months’ imprisonment from the suspended sentence imposed by the Southport Magistrates Court concurrent.  No error in the exercise of the sentencing discretion is demonstrated.  The application for leave to appeal against sentence should therefore, be refused.

MORRISON JA:  I agree.

SOFRONOFF P:  I agree.  The order of the Court is the application for leave to appeal is refused.