R v Berry[2017] QCA 271

SUPREME COURT OF QUEENSLAND

1. SOFRONOFF P:  On 13 July 2017 the applicant pleaded guilty to one count of trafficking in dangerous drugs, one count of possessing a dangerous drug in excess of two grams and three summary charges.  Those were possessing property suspected of having been used in connection with trafficking in a dangerous drug, possessing suspected proceeds of trafficking in a dangerous drug and possessing a thing used in connection with the smoking of a dangerous drug.  Byrne SJA sentenced the applicant to imprisonment for 10 years and two months in respect of the first count of trafficking.  In respect of the other count and the summary charges, his Honour recorded a conviction but did not further punish the applicant.  His Honour also made a declaration pursuant to s 159A of the Penalties and Sentences Act 1992 in respect of 256 days that the applicant had spent in pre-sentence custody.  His Honour declared that the applicant’s conviction on count 1 was a conviction of a serious violent offence.  As a result the applicant is obliged to serve at least 80 per cent of his sentence of imprisonment before becoming eligible for parole.
2. The applicant now applies for leave to appeal against his sentence.
3. The applicant was born on 3 November 1990 and was aged between 24 and 25 years at the time of offending.  Between 1 January 2015 and ending on 17 March 2016 he carried on the business in Cairns of trafficking in three drugs: crystal methylamphetamine (“ice”), 3,4-methylenedioxymethamphetamine (“MDMA”), and lysergide.  Police had been tracking the operations of one Luke Bauer, who also used the name Crook, and Dean Guest.  Crook had been trafficking in drugs in Cairns between March 2013 and Christmas 2015.  Otherwise he had been a minor criminal.  He had been selling at street level but would sometimes also sell quantities to people who he knew were themselves dealers.  He had begun selling MDMA but then began selling cocaine.  From time to time he supplied ice instead of cocaine.  He purchased his supplies, or at least much of them, from the applicant.  Police detected his activities and an undercover agent introduced himself to Crook and was able to make significant purchases from him.
4. Crook made full admissions to police and pleaded guilty at an early stage.  Crook ceased trafficking of his own accord.  He had been arrested and charged with other minor offences and these appear to have had an effect upon him so that he ceased trafficking.  His admissions resulted in police being able to make a trafficking case against him of a longer time frame than they would otherwise have been able to.
5. Another customer of the applicant, Guest, was also a young man, aged about 23 years at the time of offending.  His offending came to light through the work of the undercover agent who was investigating Crook.  Upon his arrest he participated in a full interview.  He admitted purchasing methylamphetamine from the applicant which he would then on‑sell.  He pleaded guilty at a very early stage.
6. The applicant’s business was a more substantial one than that of either Crook or Guest.  His revenue during his period of trade was at least $154,445.  He had made at least 112 supplies to at least 23 different people.  Beyond those 112 supplies, that could be identified specifically, his business involved over 200 supplies.  He sold what was described as “relatively high purity methylamphetamine” which was between 60 per cent to 77 per cent purity.  Occasionally he would extend credit to regular customers.  In respect of 93 known supplies he received a total of $138,000 in cash.  The five people, including Crook and Guest, who purchased larger amounts of drugs from the applicant were involved in the supply of drugs to others to the knowledge of the applicant.  This group also included the undercover policeman who had been introduced to the applicant.
7. In October 2015 Guest acquired two quarter ounces of methylamphetamine from the applicant on separate occasions.  On one of these occasions Guest was unable to repay the applicant in time.  About a week later the applicant told Guest that he did not believe that he was trying hard enough to pay his debt.  He insisted that Guest should leave his car, a Ford Mustang that he had bought for $65,000 two years earlier, as collateral for that debt.  Guest agreed to do that.  Very shortly afterwards Guest was approached to supply an ounce of ice which he agreed to do for $12,000.  The applicant agreed to supply him with that ounce for $9,000.  Guest reckoned that the profit of $3,000 would permit him to repay his debt to the applicant.  The sale fell through and when Guest explained this to the applicant he was told “Too late.  I’ve already gone and got it.”  He threw the ounce of ice at Guest and told him to sell it.  Guest then borrowed $5,000 from a friend and paid it to the applicant.  The applicant accepted the money but told Guest that the ounce was now $12,000.  This meant that Guest still owed $3,000.  Guest found the extra $3,000 and paid it to the applicant who then said that he wanted another $3,000.  Guest again managed to find the money and paid it to the applicant.  By then he had paid $15,000 for the ounce which he had agreed to buy for $9,000 on credit.  Even then the applicant refused to hand over the car.
8. The applicant also assaulted Crook over unpaid drug debts.  He punched him several times in the shoulders, face and back of the head causing him to fall to the ground.  The assault continued while Crook was on the ground.
9. Police arrested the applicant on 17 March 2016.  He declined to be interviewed by police.  He was charged and remanded without bail and spent 256 days in custody.  He was granted bail on 28 November 2016.  That bail was revoked on 6 June 2017 because the applicant had been charged with another drug offence.
10. The applicant was still in his teens when he met his current partner, Ms Kyper.  Together they have two children, who at the time of sentencing were aged five years and 19 months respectively.  Ms Kyper had become pregnant when the applicant was only 20.  Not surprisingly this caused tension in the relationship.  The applicant was then working as a pipe layer and roller operator for a civil construction company.  The applicant began drinking and then took up smoking methylamphetamine.  Inevitably, his use of ice increased and his behaviour deteriorated.  For unrelated reasons he was laid off his work.  He began doing some limited work on a prawn trawler.  He found an avenue to make ends meet by dealing in methylamphetamine.  His addiction increased.
11. At sentencing the applicant’s submissions emphasised his age, his addiction and his family circumstances.  Most of his counsel’s submissions concentrated upon previous sentences for similar offences that were relied upon as comparable.  A set of references was handed up and Byrne SJA read them.
12. His Honour observed that the applicant had been motivated to traffic in drugs to make money to earn a living and also to feed his own addiction.  His Honour noted that the amount of money involved had been substantial and that there were considerable numbers of customers.  His Honour referred to the applicant’s use of violence and intimidation to enforce payments of debts.  His Honour noted that the applicant’s significant drug trafficking business, including at a wholesale level, only came to an end because the police arrested him.  His Honour observed that the “most significant consideration” was that the applicant had pleaded guilty which did away with the trouble and expense of what might have been a reasonably long trial.  As to rehabilitation, his Honour said:

“You were also a young man at the time of offending.

You have made some efforts towards rehabilitation and a drug screen test indicates that you have had some success in that regard.  Nonetheless, those who become addicted to methylamphetamine will usually struggle to avoid reversion to the use of that illicit substance over time.  Still, such efforts as you have made towards rehabilitation deserve some recognition in the sentence.”

13. No particular submissions had been made to Byrne SJA on the applicant’s behalf about rehabilitation or the references that had been tendered.
14. On his application for leave to appeal against sentence the applicant contends that there is an arguable error in his Honour’s decision in two respects.  First, it is said that his Honour failed to give adequate reasons for the sentence.  Second, it is said that the sentence itself is manifestly excessive and that this shows that there is an error implicit in his Honour’s exercise of discretion.
15. The applicant submits that the head sentence of 10 years and two months is an unusual period and the reasons for its imposition are not discernible from his Honour’s reasons.  At the hearing of the application the Crown were unable to explain this peculiar period of imprisonment.
16. His Honour did not refer to any of the previous sentences relied upon by the Crown and the applicant as comparable.  There were over 10 of these.  Some of these were capable of informing the sentence in this matter.  These cases included Taylor^[1] in which the applicant had pleaded guilty to trafficking in cocaine, MDMA and MDA over a period of three months.  He was 21 years of age at the time of offending.  His trafficking was at a wholesale level.  He was said to be a young man who had taken important steps towards rehabilitation.  He was sentenced to seven years and four months’ imprisonment with parole eligibility after serving two and a half years.
17. In Neilsen^[2] the applicant had pleaded guilty to trafficking methylamphetamine over a period of eight and a half months.  She was 25 and 26 years at the time of offending.  She too was a wholesaler.  She had used a sawn off shotgun to intimidate customers to pay their debts.  She had engaged an underling to assault one of these customers.  By the time of sentence she had been able to demonstrate rehabilitation by way of drug abstinence and a change in the circumstances of her personal life.  This was said to be a circumstance that warranted a meaningful reflection in her parole eligibility.  She was sentenced to seven years and six months’ imprisonment with a parole eligibility date of two years.
18. In Elizalde^[3] the applicant had pleaded guilty to trafficking in MDMA, methylamphetamine and cocaine over a period of four and a half months.  He was 25 years old at the time of offending.  His had been a large turnover.  After his arrest he had worked to overcome his addiction and had obtained and held regular employment.  He put forward a number of favourable personal and employment references.  On sentence, the sentencing judge observed that the appropriate range was between 10 and 12 years’ imprisonment but, having regard to the applicant’s rehabilitation and future prospects and his early guilty plea, he was sentenced to nine years’ imprisonment.
19. What these cases, and others like them, demonstrate is that youthful offenders who plead guilty and who have demonstrated sincere efforts towards rehabilitation and, at least, early success at fighting addiction have received significantly lesser terms of actual imprisonment than their older and less pliable colleagues in this industry.
20. Two pathology reports tendered at sentencing reinforced the applicant’s success at rehabilitation.  They showed that as at 25 May 2017 the applicant had tested negative for opiates, cocaine and cannabis metabolites, amphetamine, methamphetamine and benzodiazepines in his system.  They also showed that he had no alcohol in his blood.  This evidence, the implications of which were not challenged, is highly significant.  This evidence is important when read with some of the references that were tendered on the applicant’s behalf.  While on bail the applicant worked for a company in the construction industry.  The principal of that company said, relevantly:

“I honestly believe that Ian has shown remorse and he is sorry for the people he has hurt and let down and realizes he has to own his mistakes and to start the road to repairing what he has broken in life.  I know this from his actions, while he was working for me and before he went back into custody he was very determined by attending counselling, and getting to his check in on time every Monday and Friday no matter what pressure I have put on him work wise.

… Ian has been off the drugs for the duration of the time working for me.  Upon his release I required random drug testing and every time came up 100% clean.  As well I know he had been going to gym to try and keep busy after hours, not drinking or partying as such but spending time with his kids, close friends and family – instead of mixing with the wrong people and getting back into old bad habits.”

21. A counsellor at a rehabilitation counselling centre in Cairns has written:

“Ian presented in the action stage of change, having already ceased substance use and wanted to modify his behaviour in accordance with his current goal.

…

Since commencing counselling Ian has participated fully and openly to discussions around his past drug use.  Ian has learnt how to cope in high risk situations and identified alternative activities to using drugs.  Ian has developed a relapse prevention plan to support him with his goal of remaining abstinent from ICE/Meth.”

22. The difficulty of fighting methamphetamine addiction is well known.  In my opinion, because of his youth, the applicant’s efforts are very important.  Yet, these matters did not figure prominently in submissions before his Honour and it is therefore understandable that they did not figure prominently in his Honour’s sentencing remarks, although, as can be seen from the passage I have quoted, his Honour did take them into account.
23. However, in my respectful opinion it understates the magnitude of the applicant’s success in turning his life around to this point as well as its significance for sentencing to refer to what he has done as only “some efforts towards rehabilitation”.  In my respectful opinion, while there will always be a high risk of relapse in cases of meth addiction, there is little more that the applicant could have done to demonstrate his sincerity.  He has shown a willingness to maintain gainful employment, relate to his family in a normal way and abstain from taking drugs despite an addiction.  Youth can be relied upon to explain offending by reason of immaturity and lack of wisdom.  Youth also holds hope that the life to follow will not be wasted.  This hope becomes promise when an offender shows sincere efforts to lead a decent life.  In my opinion, the applicant has shown such promise.
24. The comparative sentences to which I have referred would indicate that a head sentence of less than 10 years is appropriate in the case of a youthful offender, even one who trafficked at a wholesale level, in cases in which a real and voluntary effort at rehabilitation has been made.
25. In my respectful opinion the sentence imposed in this case is inconsistent with the cases to which I have referred to and the reasons do not disclose why, in these circumstances, his Honour imposed it.
26. For these reasons I would grant leave to appeal.
27. In my respectful opinion the gravity of the applicant’s offending, that is to say his trafficking in vicious drugs, warrants a sentence of nine years taking into account his plea, his youth and the comparable sentences.  His promising beginning in sorting out his life, and therefore his children’s lives as well, warrants there being an opportunity for him to apply for parole after four years so that he can continue his success.
28. I would make orders accordingly.
29. GOTTERSON JA:  I agree with the reasons given by Sofronoff P for the orders made on 8 November 2017.
30. PHILIPPIDES JA:  I agree with the President.