R v Crook[2017] QCA 277

SUPREME COURT OF QUEENSLAND

1. SOFRONOFF P:  I agree with the reasons of Morrison JA and with the order his Honour proposes.
2. MORRISON JA:  While Mr Crook was in the Cairns Watchhouse on 31 July 2015, he was joined by a covert police officer (X).  They began conversing about drug-related matters, particularly in relation to prices and drug supplies in the Cairns area.  After they were released, Mr Crook entered into a number of transactions with X in which he supplied various quantities of methylamphetamine.  This continued for several months.  Eventually police searched his house and he agreed to be interviewed.
3. As a consequence he was charged with:

1. count 1: trafficking in methylamphetamine, cocaine and MDMA,^[1] between 1 March 2013 and 25 December 2015;
2. count 2: unlawful possession of a dangerous drug, methylamphetamine; and
3. count 3: unlawful possession of a dangerous drug, Trenbolone.

4. Mr Crook pleaded guilty to all three charges and had the following sentences imposed:

1. count 1, trafficking – six years imprisonment;

2. counts 2 and 3, unlawful possession of drugs – each one month imprisonment; and
3. all terms to be served concurrently, and a parole eligibility date set at 14 May 2018 (after 17 and a-half months had been served).

5. Mr Crook seeks leave to appeal against his sentences contending that they are manifestly excessive.

Circumstances of the offending

6. The following is taken from an agreed Schedule of Facts^[2] as well as matters advanced without objection during the sentencing hearing.
7. Police commenced a series of drug operations in the Cairns region, using covert officers to identify targets and make attempts to purchase dangerous drugs from them.  One such officer, X, was placed in the Cairns Watchhouse at a time when Mr Crook was in custody.  They conversed about drug-related matters and in particular the prices and drug supplies in the Cairns area.  Upon their release on 31 July 2015 they travelled to Mr Crook’s house.  Mr Crook had two small clip seal bags which he weighed.  There was about 1g of substance in each bag.  Mr Crook then handed X a third bag, which appeared consistent with half a gram of substance.  X paid $300 in cash to Mr Crook.  The bag contained 0.331g of product, with a calculated weight of methylamphetamine of 0.216g (65.4 per cent purity).
8. On the days following, Mr Crook and X exchanged a series of texts in an attempt to conduct further transactions.
9. On 3 August 2015, X met Mr Crook.  Mr Crook got into X’s vehicle.  He produced a clip seal bag, containing another clip seal bag inside.  White crystalline substance was in the bag, consistent with one-eighth of an ounce of substance.  Mr Crook told X that the purchase price for an 8 ball (one-eighth of an ounce) would be $1,450.  X produced the cash.  When they parted, X informed Mr Crook that he would be out of town for a week, but then would be back to continue making purchases.  Mr Crook advised that the product he had just been provided with was “the best”.  Later Mr Crook sent a text confirming the quality.
10. Analysis of the product revealed 3.245g of product, with a calculated weight of 2.498g methylamphetamine (77 per cent purity).  Mr Crook later told police that he did not make money from that transaction, and was doing X a favour.  The following day X sent Mr Crook a message arranging to buy more, and requesting “half an oz”.
11. On 5 August 2015 X and Mr Crook agreed to meet to facilitate the purchase of “half an oz”.  They agreed on the price of $3,200, but later that afternoon Mr Crook contacted X to say that he had the incorrect price, and would need “52 for that coke”.  Mr Crook also explained that he “needed more ice, it was a hot bottle”.  X bartered the price down to “5” and they agreed to meet.
12. Later that day X went to Mr Crook’s address and collected him.  Mr Crook advised that his supplier had just been caught dropping drugs off between places, and he would have to make other arrangements to facilitate the supply of methylamphetamine to X.  Mr Crook then produced a clip seal bag containing a yellow crystalline substance, at about one-eighth of an ounce weight.  He explained that he was holding speed, but could source MDMA if X required it.
13. Mr Crook directed X to drive to various places while he made various phone calls.  They met two further persons, with Mr Crook eventually giving cash to one of them.  They ended up back at Mr Crook’s house where he offered yellow substance for free.  Analysis of that product revealed 0.216g of product (methylamphetamine) with a calculated weight of 0.081g (37.6 per cent purity).
14. On 14 August 2015, Mr Crook sent a text to X confirming when he would be back in town and then a fortnight later.  On 28 August 2015, Mr Crook sent a text advising that he had a surprise and that it would be “a very good price”, and that it was “way better” and “great flow”.
15. On 10 October 2015, X and Mr Crook made arrangements to meet later in the day, to enable X to purchase more drugs.  They agreed on a purchase price of “51 for a half”.  X went to Mr Crook’s residence where Mr Crook had a large clip seal bag containing two medium size clip seal bags, which had crystalline substance in them.  The amount of each of the bags when weighed was consistent with approximately half an ounce in total.  X paid $5,100 in accordance with their agreement.  Analysis of the product supplied on that occasion revealed 13.822g of product (methylamphetamine), with a calculated weight of 9.487g (71-71.5 per cent purity).
16. Mr Crook advised he had a new telephone number, giving it to X.  X asked to speak with him in private, advising that he wished to source ounces of methylamphetamine with no difficulty.  Mr Crook advised that he knew of people who were cooks, but were currently in prison, though soon to be released.  He also advised that his current supplier would only hold two or three ounces at a time, and the persons currently in prison would be able to stock larger volumes.  Mr Crook made it clear he had multiple sources from which he could obtain his drugs to sell to others, with little difficulty.
17. Later that evening, X sent Mr Crook a message requesting to meet “with his guy, I’m good for that oz on Monday”.  Mr Crook responded that he could do “$8,500”.  Mr Crook also advised he was trying to source from another contact.
18. On 12 October 2015, X and Mr Crook once again made arrangements to meet for another purchase of dangerous drugs.  When they met X purchased an ounce of methylamphetamine for $8,500.  He was provided with a container which, in turn, had five smaller clip seal bags, each of which contained a clear crystalline substance.  Analysis of those five bags revealed a total of 29.632g of substance yielding a calculated weight of methylamphetamine at 19.927g, at purities varying from 41.2 per cent to 70.7 per cent.
19. X did not meet Mr Crook after that and no further purchases or attempts to purchase occurred.  Mr Crook did not want to deal with the bigger quantities because there was not enough money to be made out of it, and so he referred X directly to his supplier.
20. On 4 June 2015, police executed a search warrant on Mr Crook’s premises.  Amongst other things they located three “tick sheets”.  One had names and amounts next to weights, another had the word “collection” at the top indicating further names and amounts.  The last was a piece of paper labelled “MD” which had a list of prices explaining what items could be bought and sold for.  Mr Crook pleaded guilty to possessing items used in connection with the commission of a drug offence.
21. Subsequently police were alerted to documents which had been found in an apartment which Mr Crook had checked into.  It consisted of seven pages of handwritten documents which were “tick sheets”.
22. After the search warrant had been executed, Mr Crook agreed to be interviewed by police and made substantial admissions about his involvement supplying a variety of dangerous drugs from early March 2013.  He detailed various suppliers, customers and his culpability, indicating he would sell at street level, but also sell to people who would on-sell.
23. He told police that he had commenced selling MDMA to people in at nightclubs and that continued for about four months.  He sold in packs of 10, knowing that some packs would be on-sold.  He estimated that he had sold approximately 300 pills in total, at a purchase price of $30 a pill.  He sold a variety of pills, namely: orange lightning bolt pills (LSD based); white Batman pills; love heart shaped pills; and gold bar pills.  The gold bar pills would be purchased for $20 and on-sold for $45 each, as they were a higher quality of pill.
24. He told police that he had purchased the pills from one supplier only and would purchase them for $20 a pill, allowing for a profit margin of approximately $3,000.  He said he would only sell the pills for cash and never on “tick”.
25. Mr Crook told police that his business escalated to a point where he commenced selling cocaine and no longer sold MDMA.  He purchased the cocaine from the same supplier from whom he had purchased the MDMA pills.  He decided to branch out into cocaine due to an increase in demand for it.  He purchased 1oz and took two weeks to on-sell it to other customers.  He originally had been given the ounce on “tick” and broke it up into quantities of either 3.5g,^[3] 1.75g^[4] or 1g.  He would sell an 8 ball for $1,000 and the half amounts for approximately $700.  He told police he never sold cocaine in quantities of less than 1g.
26. Mr Crook advised the police that he ultimately paid $15,000 to his supplier after the full quantity had been sold.
27. Mr Crook told police that he had, on occasion, swapped amounts of the cocaine for “ice” (methylamphetamine) from another supplier.  He ultimately stopped purchasing drugs from his first supplier and commenced sourcing “ice” from a female with whom he had exchanged cocaine for “ice”.
28. Mr Crook told police that ultimately he was in the drug trade purely to make money and determined that supplying “ice” provided him with the biggest profit margin.  Demand dictated his willingness to supply “ice” instead of cocaine.
29. Mr Crook nominated his drug suppliers.  He detailed that he commenced purchasing “ice” once a fortnight from the new supplier and would move it quickly.  On occasion he had a party where all the attendees bought drugs from him.
30. In early 2015 he met a third supplier, from whom he continued to purchase methylamphetamine.  He commenced purchasing from that supplier because he was always at home and always had a ready supply.  Over a six month period he would purchase five to six times from that supplier a month and approximately 1oz in a month period.  He would purchase an “8 ball” for between $1,200 to $1,400, and $700 for a half ball, and $250 for a half.  He would usually purchase “ice”, but if one of his customers wanted MDMA, he would purchase MDMA from the third supplier at the same time.
31. Mr Crook would pay his supplier cash up front, but did obtain drugs on tick on two occasions.  He ensured that he paid his supplier straight away because that supplier would use stand-over tactics to recoup monies owed to him, and would often use or threaten violence to other associates.
32. Mr Crook advised his sale prices as follows:  $100 for a “point”; $350 for 0.5g; $600 for 1g; $700-$800 for a “half ball”; and $1,400-$1,800 for an “8 ball”.  His most consistent selling weight was 0.5g and he would make the most profit out of that.  He would make approximately $1,000 from an “8 ball”.
33. Mr Crook advised that he brought the drugs which he supplied to X from his third supplier.  On another occasion he recalled selling 1.75g of methylamphetamine to an associate for $1,400, having bought it for $1,250.  Over a six month period he purchased about $45,000 of methylamphetamine from his third supplier.
34. Mr Crook sold to people who then on-sold, calling them “employees”.  For example, over a “couple of months” he would give half balls or grams to another person, who would then move the product for him.  The total amount sold for him in this way was 7g, and it was always sold “on tick” with the person paying him back in cash.
35. Mr Crook made disclosures about the debts owed to him and revealed in the tick sheets.  Also included were pages entitled “Methmatics” whereby the cost and profit margin of the sale of a half a kilogram of methylamphetamine, as well as the outgoings associated with the purchase, were calculated.  He told police that he was in touch with a supplier who quoted him the amount.  He never made that purchase.
36. Mr Crook estimated that ultimately he made $20,000 from selling methylamphetamine, after paying “the boys”.  He was owed approximately $50,000-$80,000 in debt, though he did not have a debt to anyone himself.  When people failed to pay him, he said he cut them off.  Mr Crook withdrew himself from selling drugs before Christmas 2015.  He ceased of his own accord, because a new relationship made him realise he had to stop and get out of drugs.
37. At his police interview he made full admissions which significantly enlarged the period over which he could be charged with trafficking.  Without those admissions the period would have been three to four months.
38. As to the possession charges, the following facts were agreed.
39. On 26 October 2015, police attended at an apartment where Mr Crook was lying on a bed.  Police observed a glass pipe on the coffee table.  A search located various items including: glass pipes; a mobile telephone (claimed by a second man in the apartment); a book with names, numbers and amounts of cash listed, with a book used to keep a log of sale amounts; $160 in cash inside a clip seal plastic bag, also containing a further clip seal plastic bag with a quantity of white crystal substance; a set of mini scales; another mobile telephone, which Mr Crook claimed as his; and five clip seal bags containing white crystal residue.
40. Analysis revealed 0.539g of methylamphetamine.  Mr Crook told police that the purpose of he and the other man staying there was to supply drugs to people in nightclubs.  His associates would go down to the clubs to sell.  He estimated that he sold 7g of methylamphetamine in half gram portions.
41. On 17 March 2016, police executed a search warrant of Mr Crook’s address.  They located further items as follows: one 10ml vial of Treccore Trenbolone Enanthhate 200mg; one 10ml vial of Treccore Trenbolone Enanthhate 250mg; one 10ml vial of Melanotan; a mobile telephone; and diaries, numerous pieces of paper with handwriting, and a green Collins money column analysis book, outlining debts owing.
42. Mr Crook declared the items at the commencement of the search and admitted they were his.

Approach of the learned sentencing judge

43. The learned sentencing judge acknowledged early in his remarks that the police knowledge of the trafficking period “came from your own admissions, not from any other knowledge they had”.^[5]  That was qualified, however, because police had detected significant law breaking by Mr Crook and, his Honour added, sufficiently so to bring a charge of trafficking, albeit for a more limited period of some months’ duration.
44. The various factors taken into account by the learned sentencing judge included the following:

1. the early guilty plea;
2. Mr Crook’s age and criminal history, described by the learned sentencing judge as “the most serious feature of your criminal history”;^[6] it included an appearance in September 2015 for offending which took place in June – August 2015, all of which was within the currency of the trafficking period;
3. the fact that the closing months of the trafficking period took place whilst on probation, which was an aggravating feature;
4. two reports about his performance on probation did not suggest that he had performed particularly well;
5. the nature of the offending conduct, reflected in the agreed schedule;
6. the progression of trafficking, which was driven by perceived demand, moving from MDMA to cocaine to methamphetamine;
7. that the offending had occurred against the background which indicated he had been generally law abiding; Mr Crook was “obviously a person of some worth and talent”; his Honour referred to his work history as a chef, and the tendered material which spoke highly of his personal qualities;
8. that the offending was above street level and the dealing was at “the low wholesale end”;
9. the trafficking consisted of “serious and prolonged offending”;
10. there was no evidence of Mr Crook having significant assets when he stopped offending and his Honour inferred that such profit as was made went on lifestyle; his Honour noted that he had been told Mr Crook stopped of his own volition, brought on by a realisation that he could not go on living his life as he did, that occurring when he was finally in a stable relationship; it was to Mr Crook’s credit that he had ceased of his own accord and that constituted a mitigating circumstance; and
11. that a “much more significant mitigating consideration” was that until Mr Crook had made is admissions the police had a trafficking case of a much smaller time frame than was ultimately the case; that considerations discussed in AB v The Queen were applicable, but his Honour described it as being “not a complete AB v The Queen case, in the sense that … the police already had a case against you for trafficking, but it was for a much shorter period and significantly less injection of drugs into the community”.^[7]

45. The learned sentencing judge expressed his conclusion in this fashion:

“The sort of offending that you were involved in, simply with the undercover agents, was an offending of a kind that would attract a substantial period of imprisonment in its own right.  But it is clear enough from the comparatives that I have been supplied with, but for the offending you engaged in, admitted to engaging in, that is to say, the overall offending, a head sentence in the vicinity of as high as eight years, arguably higher, would be within range.

I should have thought, though, that allowing for the AB v The Queen consideration and the consideration that you ceased of your own accord, that they are added considerations that would give rise to discounting downwards, in a material way, somewhat further.  In the upshot, it seems to me that I ought to reflect all of the mitigating circumstances of this case, inclusive of exhibit 9, by material reduction down in the head sentence, and the fixing of the parole eligibility date after only a quarter of that time, that being materially different than typically … the … one third mark that might occur on an early plea.”^[8]

Submissions

46. Mr Copley QC, appearing for Mr Crook before this Court, submitted that the sentence of six years’ imprisonment with eligibility for parole after a total of 18 months in custody was manifestly excessive for an offender who was quite young and did not have a substantial criminal history.  Reliance was placed upon R v JZ^[9] and R v Neilson.^[10]
47. It was submitted that the correct starting point for the offending was a sentence of seven and a-half years’ imprisonment, not eight years as adopted by the learned sentencing judge.  Had seven and-half years been the start point, an allowance of 18 months for the confession to the more extensive offending, would have brought the period down to six years.  Then an allowance of six months off the head sentence and eligibility for parole at about one quarter, would have resulted in a sentence of five and a-half years’ imprisonment with parole eligibility after 16 months.
48. For the respondent, it was submitted that the learned sentencing judge made a significant reduction to six years down from the eight years which his Honour regarded as an appropriate sentence on a guilty plea without consideration of the other mitigating factors.  The sentence of six and a-half years was to reflect the self-incrimination factors, with a further six month reduction to take account of other cooperation.  Apart from the significant drop in the head sentence, parole eligibility was set at 14 months earlier than the least actual time to be served under an eight year sentence with parole eligibility at one third.
49. It was submitted that neither JZ nor Neilson supported the proposition that the learned sentencing judge was in error when setting eight years’ imprisonment as the appropriate starting point.  Referring to R v Prendergast,^[11] R v Munoz,^[12] R v Briggs,^[13] R v Boyd^[14] and R v Miller,^[15] it was submitted that the sentence imposed was not manifestly excessive.
50. It was further submitted that Mr Crook had shown significant cooperation by making full admissions, and significant cooperation.  Further he had pleaded guilty and ceased offending of his own volition.  As against that there were significant exacerbating factors including:  the trafficking was over 22 months; it was carried out for profit; three dangerous drugs were involved, with Mr Crook changing the drugs to maximise profit; counts 2 and 3 and the continued trafficking occurred whilst on probation; the trafficking continued for a time after being arrested in relation to count 2; and the business was at low wholesale level as well as street level.

Discussion

51. When considering the question of whether a sentence is manifestly excessive, one must bear in mind what was said in R v Tout:^[16]

“[A] contention that the sentence is manifestly excessive is not established merely if the sentence is markedly different from sentences in other cases.  It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is ‘unreasonable or plainly unjust’: Hili v The Queen (2010) 242 CLR 520 at [58], [59].”

52. Furthermore, there is no one single correct sentence.  Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the relevant statutory regime.^[17]
53. The first submission on behalf of Mr Crook was that the learned sentencing judge adopted a start point too high when he selected eight years.^[18]  The context in which that remark was made can be seen in the passage set out in paragraph [45] above.  I do not consider that his Honour was setting a start point when he made the reference to eight years.  All that his Honour was saying was that the comparative cases suggested that for offending of that type, eight years or more would be within the applicable range.  In my view, the phrase used, “as high as eight years, arguably higher, would be within range” cannot be read as indicating the adoption of a start point.
54. The second contention was that when JZ and Neilson were considered, the sentence imposed could be seen to be manifestly excessive.  This submission accepted that the learned sentencing judge had not overlooked any relevant consideration, nor had he taken into account any irrelevant consideration.
55. JZ involved a much older offender (59 years) with a significant criminal history for drug offences.  He had been convicted of trafficking in 1995 and sentenced to a term of four and a-half years, and then again in 1997 of procuring the supply of a dangerous drug whilst a prisoner, for which he was sentenced to five years.  A further conviction followed in 2001, for possession of a dangerous drug.  He was then sentenced to three years.  He also had a bad traffic history which demonstrated a disregard for the law.
56. JZ was charged principally with trafficking in methylamphetamine over a period of 18 or 19 months.  There were four possession charges^[19] as well as production of methylamphetamine.  He was sentenced to six years imprisonment with a non-parole period of two and a-half years.  That sentence was the product of the sentencing judge taking into account the fact that his confessions to police in respect of the trafficking enabled them to charge him with a greater period than would otherwise be the case.  In addition, he was prepared to give evidence against his supplier, and had promised further cooperation including giving evidence.  Without taking into account the mitigating factors, the sentencing judge in that case was of the opinion that a sentence of eight years would have been appropriate, with parole eligibility after four years.^[20]
57. The challenge to the sentence in JZ was conducted by the offender himself.  When regard is had to the judment, it is apparent that no argument was advanced which would have caused the sentence to be examined against comparable cases.  The challenges were to factual findings,^[21] that an assault whilst in prison had left him partly deaf,^[22] that the Prosecutor had incorrectly said he was being kept in protective custody,^[23] and that his supplier was connected to influential criminal gangs which made him a dangerous enemy, the consequence being the contention that the sentencing judge did not take into account the danger to him of cooperation.  Each of those points were rejected.
58. That is sufficient to indicate that JZ does not establish, as Senior Counsel for Mr Crook contended, such a similarity to the present case that one could conclude that the present sentence is manifestly excessive.  In dismissing the challenge to the sentence in JZ this Court did no more than find that that sentence was not manifestly excessive for the reasons advanced in that case.  None of those reasons is applicable here.  In my view, all that once can conclude is that JZ was a sentence affected by its own peculiarities.  It therefore says little about the sentence in this case.
59. Neilson involved a trafficker in methylamphetamine much closer in age to that of Mr Crook.  She was 25 to 26 at the time of the offending and 27 at sentence.  She pleaded guilty to trafficking in methylamphetamine over eight and a-half months^[24] for which she was sentenced to seven and a-half years’ imprisonment, with parole eligibility set after two years and six months.  Her trafficking business was at a wholesale level, described as an intermediate level between larger quantity wholesale suppliers on the one hand, and those who supplied street dealers on the other.^[25]  She operated the business with significant entrepreneurial flair, and employed physical protection which she then used to menace people for payment.  She was an addict, but with no criminal history.
60. Having reviewed the decisions advanced as comparable cases there, this Court did not consider it should interfere on the head sentence, but lowered the parole eligibility date to two years, to reflect impressive rehabilitation and redirection of her personal life.
61. That review is enough to show that Neilson is no sure guide to the sentence imposed in this case.  Indeed, as was pointed out in Neilson, Counsel for that applicant had supplied a schedule of sentences imposed in 16 drug trafficking cases, with sentences ranging between eight years with parole eligibility after serving two years and eight months, to four and a-half years with parole eligibility after serving nine months.  Those cases spanned trafficking in different drugs, in different quantities and with different levels of intensity of participation, and different personal circumstances.  Gotterson JA reflected that:^[26]

“The schedule reflects the truism that no one sentence is the correct sentence for a particular set of offending and personal circumstances.”

62. The learned sentencing judge’s comment that the comparable authorities suggested a head sentence as high as eight years or higher, receives some support when one considers the authorities relied upon by the respondent.  Prendergast, Briggs, Boyd and Miller all involved sentences of eight years, but the circumstances varied, as one might expect.  Munoz involved a sentence of seven years, but with the court saying that “… a sentence greater than seven years imprisonment was very much open …”.  Once again, the particular circumstances were different.  There is no point in my reviewing those authorities in detail as individually each of them could be distinguished.  However, they do provide some support for what his Honour said.
63. In my respectful view, it cannot be established that the sentence imposed in this case was manifestly excessive simply on the basis of the difference between the reference to eight years and the six years actually imposed.  Indeed, Mr Copley QC disavowed any complaint about the adequacy of the allowances made for the confession to the wider range of trafficking or the various forms of cooperation.  As to what his Honour plainly regarded as solid rehabilitation and mitigating factors, the benefit to Mr Crook was reflected in the parole eligibility date being set at one-quarter of the time served.  As the learned sentencing judge observed, that was “materially different” from the normal one-third mark for an early plea.
64. For the reasons expressed above, it cannot be demonstrated that the sentence imposed was manifestly excessive.

Disposition

65. I would order that the application for leave to appeal be refused.
66. BODDICE J:  I agree with Morrison JA.