R v Minniecon[2017] QCA 29

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  The applicant, Jay Nigel Raymond Minniecon, pleaded guilty to each count on a nine-count indictment at the District Court in Townsville on 26 February 2016.  The offences alleged in the respective counts were:

All offences were alleged to have been committed at Townsville.

2. At a sentence hearing in the District Court at Townsville on 5 July 2016, the applicant pleaded guilty to an offence against s 754(1) and (2) of the Police Powers and Responsibilities Act 2000 (Qld) of failing to stop a motor vehicle, having been directed to do so by a police officer, at Townsville on 7 November 2012.  He had been charged with this offence summarily.
3. The applicant was sentenced on 8 July 2016.  In respect of Count 1, he was convicted and sentenced to five years imprisonment, and in respect of Counts 2 to 9, he was convicted and not otherwise punished.  For the summary offence, a sentence of 50 days imprisonment was imposed and the applicant was disqualified from holding or obtaining a driver’s licence for two years.
4. Pre-sentence custody of 248 days was declared to be time served under the sentence.  A parole eligibility at 7 November 2017 was set.  This date reflects the intention of the learned sentencing judge that the applicant have served 40 per cent of the five year sentence before he becomes eligible for parole.
5. On 20 July 2016, the applicant filed an application for leave to appeal to this Court against his sentence on Count 1.

Circumstances of the offending

6. The applicant engaged in the commercial distribution of cannabis over a period of about nine months.  During that period, he came to the attention of police on four separate occasions.
7. On 22 June 2012, the applicant was under police surveillance.  His vehicle was stopped.  He was found to be in possession of $4,871.60 and a mobile phone.  A further $850.00 was found during a subsequent search of his house.  The applicant was arrested, interviewed, charged and released on bail.
8. The applicant’s house was searched again on 12 October 2012.  Four bags, each containing 28 grams of cannabis were found.  He was arrested, charged and released on bail.  A further search of the house on 7 November 2012 led to the discovery of two cryovac bags and 887 grams of cannabis.  Again, he was arrested, charged and released on bail.
9. Police searched the applicant’s house on 13 March 2013.  They found $18,000.00 in a wall, 454 grams of cannabis, three sets of scales and clipseal bags.  At interview, the applicant said that the drugs were for his own consumption.  He acknowledged that the money was his but otherwise declined to answer questions about it.
10. In all, the applicant was found to have had $23,721.60 cash and 1,453 grams of cannabis in his possession.  As well, a total of 1.217 grams of methylamphetamine was found in his possession during the searches on 22 June 2012 and 13 March 2013.
11. The failure to stop offending involved the applicant continuing to drive his vehicle unnecessarily for about 600 metres after police had indicated their intention to intercept him.

The applicant’s personal circumstances and history of offending

12. The applicant was 37 and then 38 years of age at time of the offending.  He was 41 years old when he was sentenced.  The applicant had been educated to Year 11.  He had a history of employment, initially in construction and sheet metal fabrication.  Later, he assisted in family businesses run by his mother which included a convenience store and a home-based sewing business.
13. The applicant has a long history of paranoid schizophrenia for which he has spent periods of time in mental health institutions.  He has engaged in poly-substance abuse and has had a methamphetamine dependence.  His drug addiction at the time of the relevant offending is central to the first ground of appeal.
14. Medical evidence tendered at sentence indicated that, at that time, the applicant was suffering “end stage renal failure” for which he was undergoing haemodialysis three times a week.^[1]  He had a life expectancy of five years on account of this condition.  He was not a candidate for a kidney transplant because of his heavy smoking which he was reluctant to give up.^[2]  The second ground of appeal relates to the applicant’s shortened life expectancy.
15. The applicant has a lengthy history of offending.  Apart from drug-related offending, he has committed multiple property and driving offences.  His drug-related offending ranges from 1991 to 2014.  He had been sentenced on 13 occasions prior to February 2007 for various drug offences.
16. In February 2007, the applicant was sentenced to four years’ imprisonment with parole eligibility at 18 months for trafficking for two months in, and the production of, the dangerous drug cannabis.  After his release from prison, the applicant was convicted in 2011 of five drug-related offences, including three of supplying dangerous drugs.  He was sentenced to nine months’ imprisonment with an immediate parole release date.  In January 2014, the applicant received a wholly suspended six month sentence for possessing dangerous drugs with an operational period of 15 months.

Sentencing remarks

17. In his sentencing remarks, the learned sentencing judge outlined the trafficking offending, noting that it had been resumed on the three occasions on which the applicant was on bail.  His Honour characterised the offending in the following way:^[3]

“There can be no doubt about the commercial nature of your offending. You were found in possession of large sums of money and large amounts of cannabis, as well as sets of scales, mobile phones and clip-seal bags.”

He described it as demonstrating a level of “determination and defiance of the law”.^[4]

18. His Honour regarded personal and general deterrence as important in the applicant’s case.^[5]  He took into account the plea of guilty, noting that it was not an early plea.^[6]
19. The learned sentencing judge referred to the applicant’s health issues in the following terms:^[7]

“I note that your medical condition includes late-stage renal failure and a long history of mental illness, but none of that provides any explanation for your offending. Perhaps it just demonstrates a fatalistic approach to life and, as your Counsel says, some lack of self-control. A large bundle of medical records, which seem to be an extract of your hospital records, became exhibit 5, and they confirm that your health is in a perilous state. That is at least in part due to your failure to take advice and your apparent determination to continue with what doctors would describe as a contraindicated lifestyle.

Your Counsel urges me to treat you leniently because it is said to be not the most serious case of trafficking, having regard to the quantities of cannabis involved; the fact that your life expectancy is said to be currently about five years and the fact that you require dialysis three times weekly; and that I should infer that your mental condition reduces your ability to control yourself.

…

I have considered the medical material, which is exhibit 5. I note that in October 2014, after you had been charged with these offences, Dr Manish [Khanna] reported to the Director of Mental Health, concerning your mental health condition at the time that this offending occurred. He said while you have a diagnosis of schizophrenia, there is no suggestion of active symptoms which would have influenced your behaviour or thinking at the time of your offending. There is nothing that anyone can point me to in the medical material that is to the contrary of that, so I proceed on the basis that drug trafficking is your chosen way of life.”

20. Immediately prior to passing sentence, his Honour noted:^[8]

“I have reduced the sentence which I might otherwise have imposed on you on account of your health, but it seems to me that the least sentence that meets the nature of your offending and your persistence in it, notwithstanding your contact with the police, is one of five years’ imprisonment.”

Grounds of appeal

21. At the hearing of the application, leave was given to the applicant to amend the grounds of appeal to the following:

1. The learned judge erred in failing to take into account or in failing to adequately take into account that the applicant was an addict when he carried on the business of unlawfully trafficking.
2. The learned sentencing judge failed to adequately take into account the applicant’s limited life expectancy in imposing the sentence.
3. The sentencing imposed was manifestly excessive in all the circumstances.

22. I preface my discussion of these grounds with the observation that, insofar as each of Grounds 1 and 2 contends that the factor referred to in it was not “adequately” taken into account, that is to say, did not accord sufficient weight to the factor, it does not articulate any error of the kinds described in House v The King^[9] as errors that vitiate the exercise of the sentencing discretion.  Nevertheless, it remains open to the applicant to rely on an inadequate taking into account of the factor as causing or contributing to manifest excessiveness in the sentence in all the circumstances.

Ground 1

23. In advancing this ground, the applicant contrasts the several references by the learned sentencing judge to the applicant’s schizophrenia with the absence of any reference to his drug addiction.  That, together with his Honour’s characterisation of the applicant’s trafficking as his “chosen way of life” indicate, it was submitted, that he did not take the applicant’s drug addiction into account at all.
24. Counsel for the applicant referred the Court to his client’s criminal history^[10] which is consistent with personal drug use over many years.  Reference was also made to medical evidence^[11] which records a history of polysubstance abuse marked by methamphetamine dependence and marijuana and cocaine abuse.^[12]
25. Relying on that evidential material, counsel submitted that the learned sentencing judge erred in not taking the applicant’s drug addiction into account.  This submission invites consideration of the factual conclusions that the evidence before his Honour warranted as to the role played by drug addiction in the applicant’s subject offending.
26. It will be recalled that his Honour characterised the trafficking as being of a commercial nature.  By using that term, he evidently rejected the notion that the trafficking was undertaken by the applicant merely to support a drug addiction.  To have done so was clearly justified by the size of the unspent cash proceeds found in the applicant’s possession.
27. As I read the medical evidence, it did not justify a conclusion that the scale of the trafficking offending for which the applicant was sentenced was engaged in by him simply to support an addiction.  To my mind, that evidence would allow a conclusion that the applicant’s drug addiction was a circumstance which had led him to trafficking in the first place, but it was not a circumstance that accounted for the scale of the subject trafficking, including the flagrant repetition involved in it.  No other evidence would suggest that it did.  Further, as his Honour had noted, the medical evidence revealed a determination on the applicant’s part to maintain a “contraindicated lifestyle”.^[13]  His reference to a chosen way of life needs to be understood in light of that.
28. Given that the addiction was referred to in oral submissions by defence counsel during the sentence hearing^[14] and in the evidence which was available for him to consider in the three days between the hearing and the sentence, it is unlikely that his Honour did not have regard to the applicant’s addiction.  It is likely that he reached the same conclusion as to what the evidence did allow and to which I have referred in the immediately preceding paragraph.  Having reached such a conclusion, it is also likely that his Honour found it unnecessary to make any specific reference to the drug addiction in his sentencing remarks.
29. There is no inconsistency between refraining from making such a reference and the relevance in sentencing accorded to drug addiction in the two decisions of this Court, R v Budd^[15] and R v Johnson,^[16] to which counsel for the applicant referred.
30. In Budd, Fraser JA cited^[17] the observation of this Court in R v Hammond^[18] that it may help an offender on sentence that his descent into the crime in question was a secondary consequence of desperation produced by a human weakness rather than a primary choice.  Here, the crime in question was trafficking on a commercial scale, far and beyond financing the applicant’s personal drug habit.  The applicant’s decision to engage in trafficking in the first place may have been derivative, in part, of his addiction.  But his decision to escalate his trafficking to the scale in which he repeatedly engaged between 21 June 2012 and 14 March 2013 and for which he was charged, is unexplained by his addiction.
31. In Johnson, the observations of Keane JA^[19] concerned the criminality of an individual who sells dangerous drugs at the retail level to support his habit.  As explained, the applicant was not such an individual.  His selling was not for the limited purpose of supporting his habit.
32. For these reasons, I am unpersuaded that his Honour either failed to take into account the applicant’s drug addiction at all, or misapprehended how he should have taken it into account consistently with the evidence.

Ground 2

33. It is clear that the learned sentencing judge did take into account the applicant’s shortened life expectancy.  He specifically stated that he had reduced the sentence on account of the applicant’s health.  Evidently, his Honour was conscious of the authorities which establish that an offender’s health and resultant life expectancy is a relevant factor to be considered, but not accorded overwhelming influence, in sentencing.
34. This ground contends that the shortened life expectancy was not adequately taken into account.  As I have noted, a contention that insufficient weight was accorded to it is not a contention of error vitiating the exercise of the sentencing discretion.  However, it is a contention on which the applicant may rely in advancing his third ground of appeal.
35. I would add that I do not accept that the decision of this Court in R v Leith,^[20] to which counsel for the applicant referred, is authority for a proposition that a sentence that might see an offender die in custody is to, or can, be regarded as a miscarriage of justice.  As I understand his Honour’s reasons, Shepherdson J (with whom de Jersey CJ and Cullinane J agreed) meant that it would be a miscarriage of justice not to extend time to appeal a sentence where, post sentence, the offender had been diagnosed as having cancer and had less than six months to live.  When the Court heard his application, he had about a further three months to serve before his sentence was to be suspended.  On appeal, his sentence was varied so that it was suspended forthwith.

Ground 3

36. His Honour’s remarks with respect to a reduction to five years indicates that he had adopted a notional starting point of more than five years.  The applicant submits that such a starting point was manifestly excessive when other sentencing decisions are taken into account.^[21]  The decisions to which the applicant referred are R v Lammonde^[22] and R v Brienza.^[23]  In both instances, the offender had pleaded guilty to trafficking in cannabis.
37. In Lammonde, the 37 year old offender had trafficked in cannabis for almost three years at street level.  She involved younger members of her family and adolescents in furthering her trafficking business.  She had an extensive criminal history, but no prior convictions for trafficking.  She was sentenced to six years’ imprisonment with a parole eligibility date at the two years and six months mark.  She applied for leave to appeal against the sentence as being manifestly excessive.  This Court rejected a submission that the six years’ imprisonment was manifestly excessive.^[24]  However, the sentence was varied to fix parole eligibility at 18 months to allow her the opportunity to rehabilitate herself and to provide emotional and financial support to her large family.^[25]
38. In Brienza, the offender, who was 37 years old at sentence, had trafficked over about 12 months at a wholesale level.  He had sold 70 pounds of cannabis.  He was not a user; his motivation was purely commercial.  He was sentenced to six years’ imprisonment with parole eligibility after one-third of the sentence had been served.  His contention that the sentence was manifestly excessive was rejected.^[26]
39. Contrasting the circumstances of his client’s offending with those of the offenders in Lammonde and Brienza, counsel emphasised that the applicant had trafficked over nine months; that the total quantity of the drugs he possessed was not particularly large; and that there was no suggestion that he was selling as a wholesaler.  No records of sales were located.  Nothing was known about the number of customers to whom he had sold.^[27]
40. Relying on these differences and the applicant’s shortened life expectancy, counsel submitted that the appropriate sentence was one in the range of three to four years with parole eligibility fixed at a date after “a third or thereabouts” of the term had been served.^[28]  I note that for a sentence of four years, parole eligibility would arise on 7 April 2017 if one-third of the sentence were to be adopted.
41. The respondent submitted that there were countervailing moderating aspects to the circumstances of the offending and of the offenders in both Lammonde and Brienza, not present in the applicant’s case.  That was something that needed to be taken into account in using them for comparative purposes.
42. Reliance was placed on the sentencing decisions in R v Whyte,^[29] R v Cairns^[30] and R v Tez,^[31] all of which involved guilty pleas to trafficking in cannabis.
43. In Whyte, the 20 year old offender trafficked over a period of eight months in which sales worth about $20,000 were made.  She had a minor criminal history.  She cooperated by making admissions.  Certain of the conduct to which she admitted was conduct that the prosecution was not otherwise in a position to prove.  It was held by this Court that her sentence of four years’ imprisonment suspended after 12 months was not manifestly excessive.
44. The offender in Cairns was 37 years old.  He had a minor and dated criminal history.  He was sentenced following an early plea to a number of drug related offences.  The sentence for trafficking in cannabis was four years with a parole eligibility date after 16 months had been served.  The trafficking occurred some four years prior to sentence.  The offending involved supply and intention to supply a total of 19 pounds of cannabis for a price of $19,600 from which the offender stood to make a profit of about $1,000.  He had remained conviction free over the intervening years while he was on bail.  The sentencing judge had adopted a notional head sentence of four and a half years and parole eligibility at 18 months which was moderated on account of his early pleas.  His application for leave to appeal the sentence as manifestly excessive was refused.  The parole eligibility date, at less than one-third, was regarded by this Court as appropriately recognising mitigating factors, including the delay in sentencing of about three and a half years.
45. In Tez, the 25 year old offender had a significant criminal history.  He was described as “a hopeless recidivist for whom Drug Court interventions have failed”.^[32]  In the subject offending, he trafficked over a two month period.  He sold to between ten and 15 customers on a regular basis.  His turnover was between $500 and $1,000, or even $1,200, per week.  He used the proceeds to fund his own drug habit and also to pay his debts and meet his living expenses.  He re-offended while on bail for these offences.  He cooperated with authorities by way of making admissions, a factor for which allowance was made in his sentence of three and a half years with parole eligibility at 17 months.  The offender’s application for leave to appeal the sentence as manifestly excessive by reason of an insufficiency of weight given to matters of mitigation, was refused.
46. None of the sentencing decisions to which this Court was taken involved an offender whose offending, personal characteristics and criminal history closely resembled that of the applicant.  The levels of trafficking in Whyte and Cairns were less than the applicant’s.  Those offenders had no prior trafficking convictions.  Neither had re-offended.  These decisions would indicate a higher sentence for the applicant.  The trafficking in Tez was over a much shorter period and in a much smaller total quantity than for the applicant.  Like the applicant, the offender in that case had a relevant criminal history and had re-offended on bail.  He did, however, cooperate with authorities. The period he was required to serve in custody before becoming eligible for parole was seven months shorter than the period that the applicant must serve.  That needs to be seen in light of his lower level of offending and higher degree of cooperation.
47. The trafficking in Lammonde was over a much longer period than in the applicant’s case.  However, that offender had no prior convictions and her trafficking was not continued, as the applicant’s had been, despite numerous court and police interventions.  This offender had made impressive steps towards rehabilitation and was remorseful, factors which resulted in the reduction on appeal of the period of imprisonment that she had to serve for parole eligibility to 18 months.
48. The offending in Brienza was for a little longer than in the applicant’s case.  Significantly, that offender did not have a relevant criminal history and he voluntarily desisted from trafficking before police intervention.  His risk of re-offending was low.
49. When these aspects of Lammonde and Brienza are taken into account, neither decision suggests to me that the learned sentencing judge erred in adopting a notional sentence in excess of five years for the applicant.  The applicant is a mature man.  He has had an extensive history of drug related offences.  The subject offending was committed during the operational period for a suspended sentence and in the face of repeated police interventions.  It was followed by further offending while the applicant was on bail.  A condign penalty which adequately addressed general and personal deterrence was clearly indicated.
50. The learned sentencing judge moderated the sentence to five years’ imprisonment on account of the applicant’s health.  It was appropriate for him to have done so.  The applicant has benefited accordingly.
51. It does not, however, follow that his Honour was required to reduce proportionately the time to be served by the applicant in order to qualify for parole eligibility to one-third of five years.  It was open to him to adopt a period which is, in fact, some four months longer than that on account of the nature of the offending, and the applicant’s persistence in it notwithstanding police intervention.
52. For these reasons, I do not consider that the applicant’s sentence is manifestly excessive either in respect of the term of imprisonment or the period of it which he must serve in order to become eligible for parole.

Disposition

53. As none of the grounds of appeal against sentence can succeed, this application for leave to appeal must be refused.

Order

54. I would propose the following order:
    1. Application for leave to appeal against sentence refused.
55. MORRISON JA:  I have read the reasons of Gotterson JA and agree with those reasons and the order his Honour proposes.
56. PHILIP McMURDO JA:  I agree with Gotterson JA.