R v Lemmar[2017] QCA 34

COURT OF APPEAL

FRASER JA

MORRISON JA

MULLINS J

CA No 217 of 2016

SC No 1071 of 2015

THE QUEEN

v

LEMMAR, Tania MareeApplicant

BRISBANE

WEDNESDAY, 15 MARCH 2017

JUDGMENT

FRASER JA:  The applicant pleaded guilty to two counts of supplying a dangerous drug, one count of possessing a dangerous drug in excess of 2 grams (which I will call “aggravated drug possession”) and a further count of drug possession.  On 1 July 2016, she was convicted of those offences and sentenced to concurrent terms of imprisonment of 20 months for the aggravated drug possession, 12 months for each count of supplying a dangerous drug and two months for the remaining count of drug possession.  The sentencing judge fixed the parole release date as the date of sentence.  The applicant has applied for leave to appeal against sentence on the grounds that the sentencing judge erred in finding that her possession of drugs in the aggravated drug possession count was for a commercial purpose and that the sentence was manifestly excessive.

The facts were set out in an agreed schedule.  When police executed a search warrant at the house where the applicant lived with others, they found the following items in the applicant’s bedroom: a clip-seal bag, which was found to contain 3.272 grams of methylamphetamine within 4.393 grams of white substance (That is, 74.5 per cent of the substance was methylamphetamine); two used clip-seal bags; a clip-seal bag containing remnants of a white crystalline substance; a clip-seal bag containing less than one gram of cannabis; a black mobile phone; a used metal grinder; digital scales; and a sum of $890.

The last four items were the subject of summary offences charged against the applicant, but the prosecutor made it clear, and defence counsel expressed agreement, that the schedule of facts was relied upon only as establishing the facts for the indictable offences.  I note that the police did not proceed with any charge in relation to the sum of money.  During the search, the applicant made some admissions concerning the summary charges, which were not before the court.  She also admitted to owning the clip-seal bags which contained methylamphetamine and cannabis.

The applicant told police that she had not used the mobile phone found in the search to assist friends in purchasing drugs.  Analysis revealed that on 11 December 2014, the applicant’s mobile phone contacted “Taneil” and asked how many she wanted.  The response was that she wanted, “1 pls”.  Later, text messages indicated that the applicant organised “Clay” to meet Taneil at the cemetery.  The Crown alleged that “1” referred to “1 point”, meaning that the applicant assisted in the supply by Clay to Taneil of .1 grams of methylamphetamine.  On 14 December 2014, “Jules” asked the applicant whether she could “prepare it”.  He sent a text message indicating that the applicant should prepare “2 p”.  The applicant responded that, in fact, it was “2.5”, which means that she owed Jules.  The Crown contended that “two” referred to .2 grams of methylamphetamine and the applicant supplied that to Jules.

There were also drug-related text messages on 3 and 21 December 2014, indicating that the applicant and “Jace” and “Now Ash” were making arrangements to settle debts and organise prices for dangerous drugs.

Defence counsel submitted at the sentence hearing that the two supplies referred to in the mobile phone were to the applicant’s best friend and a girlfriend of the applicant’s ex-husband, and that the other persons indicated in the telephone evidence were friends of the applicant’s then-partner.  It was also submitted for the applicant that her possession of 3.272 grams of methylamphetamine did not involve any commercial element, the drug being destined to be shared amongst friends.

The sentencing judge found that the applicant’s possession of that methylamphetamine was for a commercial purpose having regard to its extraordinarily high level of purity, which suggested that there was a very good source, that such level of purity was not one ordinarily seen in usual street level-type purchasing, and that the applicant owned the clip-seal bags which contacted the methylamphetamine and cannabis.  The sentencing judge accepted that it might well be that the applicant did not intend to profit from the methylamphetamine, in the sense of achieving something significantly greater than the cost price of the drugs, and that she may have intended to supply it to friends and associates, but nevertheless there was a commercial purpose.

The applicant argued that this finding was in error.  She acknowledged that she possessed what she described as, “a small quantity of a schedule 1 drug”, and that she was, “holding for our group of [friends] for New Year’s Eve celebrations”.

Those assertions do not detract from the force of the sentencing judge’s reasoning.  As was submitted for the respondent, the fact that the applicant was involved in the supply of the same dangerous drug on two separate occasions and the evidence of other drug-related text messages on her mobile phone also supported the sentencing judge’s finding.  The applicant’s description of the quantities as “small” tends to understate the seriousness of her possession of so much of this drug, which is notoriously dangerous and addictive.

The applicant’s argument that the sentence is manifestly excessive requires some further reference to the sentencing judge’s reasons.  In the applicant’s favour, the sentencing judge accepted that she had entered timely pleas of guilty, she had cooperated with the authorities, she was genuinely remorseful for her offences, she was 44 years of age with no previous convictions, she had a tragic past life in which she had lost many loved ones in tragic circumstances, and she had two children who had suffered as a result of her offending. The sentencing judge was also required to take into account, and did take into account, that the applicant’s possession of such a large quantity of pure methylamphetamine was a serious offence.  The sentencing judge considered that the applicant had made a very bad error of judgment in terms of the company she had kept and decisions she had made resulting in the humiliation by her of her children at an age when the applicant should have known better. His Honour considered that probation and community service was inappropriate and did not reflect the seriousness of the applicant’s offending.  A suspended sentence was inappropriate because the applicant should be subject to a level of supervision.  The sentencing judge concluded that the applicant should not serve any actual time in custody, and, for that reason, ordered her immediate release on parole.

The applicant argued that it was punishment enough that the police raid on her house was broadcasted on television, as a result of which her children became aware of the offences, someone put a sign indicating that drugs were available in the house on the front fence, and someone threatened to assault the applicant’s daughter in the driveway.  Defence counsel made submissions to similar effect at the sentence hearing, and the sentencing judge took into account the adverse consequences for the applicant and her children, which flowed from the publicity given to her offences.  The applicant’s submissions do not suggest any error in the sentencing judge’s reasoning or sentence.

The applicant referred also to the tragedies in her life.  That, too, was taken into account by the sentencing judge.  She referred to her personal circumstances since the sentence and, particularly, that she had not re-offended, she been progressing well in her own business, and she has benefited from treatment by a medical practitioner.  That is commendable, but it does not suggest any error in the sentencing judge’s approach.

Similarly, the applicant’s disappointment about the adverse effects of her convictions upon her employment prospects do not point to any error by the sentencing judge.  For offences as serious as this, it is to be expected that convictions ordinarily will be recorded despite circumstances of the kind mentioned by the applicant.  The applicant referred also to restrictions imposed upon her by conditions of parole, particularly her need to seek permission to travel to a different state to visit her mother, but that is merely a consequence of the applicant’s offending.  It too does not suggest any error by the sentencing judge.

The sentence of 20 months’ imprisonment with immediate release on parole for the most serious of the applicant’s offences, the aggravated drug possession offence, which attracts a maximum penalty of 25 years’ imprisonment, could not be regarded as excessive, having regard to decisions such as R v Warren [2014] QCA 175 and R v Gabbert [2010] QCA 133. It may be noted that in Gabbert, the court referred with approval at paragraphs [12] and [26] to the earlier decision in R v Anable [2005] QCA 208.  In that case, a drug addict sold methylamphetamine to finance his addiction.  That offender had no relevant previous convictions.  He pleaded guilty to one count of supplying one gram of powder containing methylamphetamine for $300 and one count of supplying the same drug, constituted by his agreement to supply that drug later to the same purchaser.  That offender’s application for leave to appeal against sentence was refused.  Justice White observed that, whilst another judge might have wholly suspended the sentence or crafted a different sentence, it could not be concluded that the sentence constituted appealable error. In circumstances in which the applicant was guilty of supplying the same dangerous drug on two separate occasions, albeit in much smaller amounts and, importantly, she was also guilty of possessing the same dangerous drug in a quantity exceeding two grams, her overall offending must be regarded as being of similar seriousness to that of the offender in Anable, yet she was not required to serve any part of her sentence in actual custody.

The applicant submitted that the sentence of two months’ imprisonment with immediate release on parole for the offence of possession of cannabis was manifestly excessive.  The respondent acknowledged that this sentence is unusually severe for possession of such a small quantity of cannabis for personal use.  In the particular circumstances of this case, I am persuaded that the sentence for the offence of possessing cannabis is manifestly excessive and justifies the court in interfering, although it will have no effect upon the overall effect of sentence imposed upon the applicant.

I would grant the application for leave to appeal against sentence only in relation to count 4, possession of cannabis.  In relation to that count only, I would allow the appeal, set aside the sentence imposed in the Trial Division, and instead order in relation to count 4 that a conviction be recorded, but the applicant be not further punished.  Otherwise, I would refuse the application for leave to appeal against a sentence.

MORRISON JA:  I agree.

MULLINS J:  I agree.