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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Peirano  QCA 100
PEIRANO, Zachary Scott
CA No 278 of 2019
SC No 47 of 2019
Court of Appeal
District Court at Mackay – Date of Sentence: 9 October 2019 (Crow J)
12 May 2020
7 April 2020
Sofronoff P and Boddice and Williams JJ
Leave to appeal against sentence be refused.
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of possessing a dangerous drug in excess of two grams and three summary charges, being one of contravening an order about information necessary to access information stored electronically, and two breach of bail conditions – where the applicant was sentenced to six years’ imprisonment for the count of possessing a dangerous drug in excess of two grams – where a parole eligibility date was fixed after serving 20 months – where the applicant was not further punished in respect of each of the summary charges – where the applicant seeks leave to appeal against sentence on the ground that the sentence was manifestly excessive – where the applicant transported methylamphetamine from Brisbane to Mackay, knowing the drugs were intended for a commercial purpose, at the request of his brother-in-law – where the applicant was in possession of the drugs when a search warrant was executed by Police – where the applicant had no criminal history – where the applicant had been treated for depression and anxiety for some years – whether the sentence was manifestly excessive
Barbaro v The Queen (2014) 253 CLR 58;  HCA 2, cited
Markarian v The Queen (2005) 228 CLR 357;  HCA 25, cited
R v Dean  QCA 378, cited
R v Duong (2015) 255 A Crim R 57;  QCA 170, cited
R v Dwyer  QCA 117, cited
R v Gaerlan  QCA 145, cited
R v Hieu Van Huynh  QCA 371, cited
R v Truong  QCA 49, cited
A J Kimmins for the applicant
T L Corsbie for the respondent
Gatenby Criminal Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent
- SOFRONOFF P: I agree with Boddice J.
- BODDICE J: On 9 October 2019, the applicant pleaded guilty to one count of possessing a dangerous drug in excess of two grams and three summary charges, being one of contravening an order and two of breach of bail conditions.
- The applicant was sentenced to six years’ imprisonment for the count of possessing a dangerous drug in excess of two grams. A parole eligibility date was fixed at 7 June 2021. The applicant was convicted and not further punished in respect of each of the summary charges.
- The applicant seeks leave to appeal against that sentence of imprisonment. The ground of appeal, should leave be given, is that the sentence was manifestly excessive.
- The applicant was born on 29 October 1985. He was aged 32 years at the time of the offending. He was aged 33 years at the date of sentence.
- The applicant had no prior criminal history.
- The offence of possession of a dangerous drug in excess of two grams was contained in an indictment containing two counts. Count 1 charged Mark Geoffrey King with the offence of trafficking in a dangerous drug. Count 2 charged King and the applicant with the count of possessing a dangerous drug in excess of two grams.
- The applicant’s sentence hearing was conducted on the basis of an agreed statement of facts. That statement of facts contained details of the alleged offending of King, as well as the offending of the applicant.
- In summary, the Crown alleged that in the course of an operation targeting the supply of dangerous drugs in the Mackay area, of which one of the principal targets was King, the applicant came to their attention.
- The Crown alleged that King had engaged in trafficking of the dangerous drug methylamphetamine over a three month period, supplying high street level to wholesale quantities of the drug, primarily to other dealers. King travelled to Mackay on at least five occasions to distribute drugs during the trafficking period.
- On 20 January 2018, King made arrangements for a quantity of methylamphetamine to be delivered to the applicant, who then drove those drugs to Mackay, arriving on 21 January 2018. Police executed a search warrant on the house of one of King’s associates, Walker, shortly after the arrival of the applicant. The applicant was present at that residence, as were King and Walker.
- A search of the premises located a clip seal bag containing a crystal substance and a package wrapped in cling wrap. Inside that package were nine clip seal bags of a crystal substance. In total, 186.189 grams of pure methylamphetamine in a substance weighing 276.1 grams was located. It was accepted at sentence that that possession was for a commercial purpose.
- The applicant was sentenced on the basis he was liable for the possession of the drugs as he had acted as courier, transporting the methylamphetamine from Brisbane to Mackay, knowing the drugs were intended for a commercial purpose. He was also in physical possession of the drugs at the time of the search. The Crown was unable to state the extent to which he benefited, although it was alleged he had previously been paid $2,500 by King.
- Walker was prosecuted separately for offences of trafficking and possession of dangerous drugs in excess of two grams. He had a criminal history. He was sentenced to a head sentence of four and a half years’ imprisonment for those drug offences.
- The Crown submitted that the applicant’s involvement in the distribution of a large scale drug into the Mackay community involved serious criminality, calling for general deterrence. Whilst the applicant had mitigating factors, including his early plea of guilty, evidencing cooperation with the administration of justice and a lack of any criminal history, his criminality warranted imprisonment in the range of eight to nine years, with parole eligibility set at the one third mark.
- In making that submission, the Crown observed that, whilst Walker’s possession of the same drug was a particular of a count of trafficking in dangerous drugs, his trafficking was prosecuted on the basis he was assisting King. As such, his role was much less serious. Walker was not involved in the transportation of those drugs and never came into physical possession of the drugs.
- The applicant submitted that the sentencing yardsticks contended for by the Crown were too high having regard to the applicant’s actual involvement and comparable authority. When regard was had to the applicant’s limited role, with no proprietary interest in the drugs, and the significant mitigating factors in his favour, it was submitted an appropriate sentence was four years’ imprisonment, to be suspended after serving nine months.
- In making that submission, the applicant’s counsel relied on a number of references, attesting to the applicant’s otherwise good character; a medical report, indicating that the applicant had been treated for depression and anxiety for some years and was currently extremely depressed; and a psychological report opining that the applicant had marked aspects of psycho-social functioning of a longstanding origin, namely, alcohol dependency disorder and chronic persistent depressive disorder.
- The sentencing Judge observed that the applicant had pleaded guilty to possession of a very large quantity of the dangerous drug methylamphetamine, over 90 times the circumstance of aggravation. The applicant had also pleaded guilty to the three summary charges.
- The sentencing Judge accepted that the applicant had driven the drugs to Mackay at King’s request; that King was a methylamphetamine dealer in Mackay; and that the applicant was to be sentenced on the basis he acted as a courier, was in physical possession of the drugs at the time of the police search, and that the drugs were intended for a commercial purpose.
- After noting the applicant’s age, the support of family, pre-existing medical conditions, existing depression, and expressed remorse and insight into his offending behaviour, the sentencing Judge found that the applicant’s offending was serious, involving a large scale possession “and the bringing of an awful drug from Brisbane into the city and it is done so for commercial benefit”.
- The sentencing Judge accepted there were a number of features in the applicant’s favour and that, having regard to the basis of the applicant’s plea of guilty and comparable authority, an appropriate sentence to reflect his criminality was a sentence of six years’ imprisonment.
- Having regard to the applicant’s lack of prior convictions; existing health conditions; and his cooperation with the administration of justice by his pleas of guilty, the sentencing Judge determined to deduct approximately four months off the ordinary “rule of thumb” of a parole eligibility after one third of the sentence, and affixed a parole eligibility date after serving 20 months of that sentence.
- The applicant submits that an objective comparison of the applicant’s criminality with that of offenders in comparable decisions, and of Walker, who was charged with trafficking and commercial possession but received a sentence of four and a half years’ imprisonment, warranted a conclusion that there was a misapplication of principles such that the sentence imposed was manifestly excessive.
- The applicant submits that descriptive terms such as courier, bailee or custodian have the potential to distract from an appropriate consideration of the actual criminality of offenders. A proper application of sentencing principles required a consideration of the actual criminal conduct of the applicant. When regard is had to that criminality, which involved relatively brief involvement as a transporter of the drug for his brother-in-law, for relatively minimal benefit, a sentence of six years’ imprisonment was unreasonable or plainly unjust.
- The applicant further submits that the sentence of six years’ imprisonment breached the principles of parity having regard to the sentence imposed on Walker, who pleaded guilty to an offence of trafficking in methylamphetamine, as well as possession of this drug, as a particular of that trafficking. There was no basis to conclude that Walker’s criminality was so much less serious to that of the applicant as to warrant imprisonment substantially in excess of that imposed on Walker.
- The respondent submits the sentence imposed was not manifestly excessive. The applicant was a mature offender, who engaged in a considered, deliberate act for financial gain. He was not drug dependent. He transported the drugs knowing they were possessed for a commercial purpose. Whilst he had significant mitigating factors, a consideration of comparable authorities supports a conclusion that a sentence of six years’ imprisonment properly reflected the applicant’s overall criminality.
- The respondent further submits that the sentence did not breach the principle of parity. Whilst Walker was also sentenced for an offence of trafficking in methylamphetamine, his trafficking was based on assisting King by booking motels, providing accommodation and, on occasions, by supplying drugs. Further, Walker was only 23 years of age at the time of the offending, with a criminal history consistent with his drug addiction. Walker’s head sentence of four and a half years’ imprisonment must also be viewed in the context of Walker having been sentenced to a total period of five and a half years’ imprisonment, as a 12 month cumulative term of imprisonment was imposed for an offence of escaping lawful custody. The imposition of a cumulative period of imprisonment would have involved some moderation of the sentence otherwise to be imposed on the trafficking count.
- In order to succeed on a ground of manifest excess, absent specific error, it is necessary for an applicant to establish that the sentence imposed was unreasonable or plainly unjust, or that the sentence imposed was so different from comparable authorities that it warranted a conclusion that the imposition of the sentence involved a misapplication of sentencing principles.
“An approach which seeks to grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process …”
- In the present case, whilst the applicant’s offending involved one occasion of possession of the dangerous drug methylamphetamine, in circumstances where he had transported that drug, at the request of his brother-in-law, as part of his brother-in-law’s drug trafficking operation, his offending was properly described as serious. The applicant had transported over 180 grams of pure methylamphetamine from Brisbane to Mackay, knowing it was to be used for a commercial purpose.
- Although the applicant had many mitigating features in his favour, including his cooperation with the administration of justice by his pleas of guilty; his lack of prior criminal history; his expressed remorse; his pre-existing medical conditions; and his circumstances of financial distress when he committed the offence, a consideration of comparable authorities supports a conclusion that a sentence of six years’ imprisonment for such serious drug offending was within a sound exercise of the sentencing discretion in accordance with comparable authority.
- Sentences substantially in excess of six years have been imposed on mature age offenders involved in transporting large quantities of pure methylamphetamine. Sentences of less than six years’ imprisonment have been imposed on other offenders, those sentences were imposed against the background of psychiatric conditions directly affecting moral culpability and where the offender suffered significant physical injury.
- A consideration of comparable authorities in the context of the applicant’s offending and personal circumstances, does not support a conclusion that the sentence of six years’ imprisonment, with parole eligibility after serving 20 months, was unreasonable or plainly unjust or involved a misapplication of sentencing principles.
- There is also no substance in the applicant’s contention that the sentence breaches the principles of parity. Whilst Walker was sentenced to a lesser period of imprisonment for an offence of trafficking in dangerous drugs, where this particular offence of aggravated possession was a particular of that trafficking count, there were a number of distinguishing features.
- First, Walker was only 23 at the time of the offending and engaged in the offending in the context of a drug addiction, with his only benefit being the subsidising of his drug use. Offending by a young, drug addicted individual is a significantly distinguishing feature to the applicant’s criminality, which was the involvement of a mature aged offender with no drug addiction, in the aggravated possession of a very large quantity of methylamphetamine, knowing it was for a commercial purpose.
- Second, Walker was sentenced to four and a half years’ imprisonment on the trafficking count in circumstances where he, at the same time, was sentenced to a further 12 months’ imprisonment to be served cumulatively in respect of another offence. Plainly, his sentence on the count of trafficking would have been moderated to allow for the fact that he was to receive a cumulative period of imprisonment for other offending.
- The sentence imposed on the applicant represented a sound exercise of the sentencing discretion. It was neither unreasonable nor plainly unjust. There was no misapplication of sentencing principles. There was no breach of the parity principle.
- The sentence imposed was not manifestly excessive.
- I would order that leave to appeal against sentence be refused.
- WILLIAMS J: I have read the reasons of Boddice J and agree with those reasons and the order his Honour proposes.
- Published Case Name:
R v Peirano
- Shortened Case Name:
R v Peirano
 QCA 100
Sofronoff P, Boddice J, Williams J
12 May 2020