R v Byrne[2020] QCA 173

[2020] QCA 173

COURT OF APPEAL

PHILIPPIDES JA

McMURDO JA

HENRY J

CA No 85 of 2020

SC No 1263 of 2019

THE QUEEN

v

BYRNE, Lachlan Alan Applicant

BRISBANE

WEDNESDAY, 19 AUGUST 2020

JUDGMENT

HENRY J:  The applicant seeks an extension of time within which to apply for leave to appeal a sentence.  The proposed ground of appeal is that the sentence was manifestly excessive.

The sentence was imposed for drug offences in the Supreme Court on 16 October 2019.  The application was filed on 9 April 2020, four months and three weeks after the lapse of the one-month time limit imposed by section 671(1) of the Criminal Code (Qld).  The ground in the support of extension was:

“The applicant did not have the required funding in place at the time for legal representation to file his notice of appeal.”

The affidavit filed in support of that ground is enigmatic.  It speaks of receiving advice from Legal Aid Queensland “earlier this year” without specifying when.  Despite the allusion to Legal Aid, it refers to not having the “necessary funds at the time” to get advice from my “legal representatives”.  Which representatives and what time is being referred to is not clear.  The affidavit at least acknowledges the applicant was told after sentence of the time in which he needed to file an application.  His explanation for not then doing so is that he was not in the right frame of mind.  What that means and how long it persisted for is not explained.  The affidavit is so imprecise as to implicitly acknowledge there is actually no good reason at all for the delay.

In the absence of a good reason for the application being filed so long out of time, the determinative consideration is whether the complaint that a manifestly excessive sentence has been imposed is sufficiently arguable that, despite the public interest in the finality of litigation, it is in the interests of justice to grant the extension sought; see R v Tait [1999] 2 Qd R 667 at 668; R v DAQ [2008] QCA 75 at [10].

The applicant pleaded guilty to three offences charged on indictment and two charged summarily, namely trafficking in dangerous drugs, possession of lysergide exceeding .004 grams, possession of dangerous drugs simpliciter, possession of a mobile telephone used in connection with trafficking and possession of tainted property.  The various possession charges related to items found when police executed a search warrant on the applicant’s property on 8 September 2018.  They attracted unchallenged sentences to be served concurrently with a head sentence of seven years imprisonment imposed for the trafficking offence.

The applicant was only 19 when he offended and 20 when sentenced, yet this was not his first conviction for trafficking.  He had a previous conviction for trafficking in cannabis over a four-month period when he was only 17 and 18 years old.  That was a vigorous but predominantly street-level business involving 30 to 40 customers and a profit of $1,200 to $1,500 a week.  He was sentenced in the District Court for that and subsidiary offending to a head sentence of two years imprisonment with immediate parole release on 23 November 2017.

This had two significant consequences for the subsequent Supreme Court sentence.  Firstly, it meant that the 2018 trafficking, which commenced only two months after the applicant was sentenced in the District Court, was committed while the applicant was on parole, an aggravating feature of the offending.  Secondly, because the applicant only managed to serve two months of his two year District Court sentence before failing to comply with his parole by reoffending, it meant:

1. (a)
   the parole order balance of one year and 10 months was automatically cancelled by his sentence of imprisonment in the Supreme Court pursuant to s 209 Corrective Services Act 2006 (Qld); and

2. (b)
   the consequently unserved balance was required to be served cumulatively with the Supreme Court sentence for trafficking pursuant to s 156A Penalties and Sentences Act 1992 (Qld).

To allow for the mandatory cumulative consequence of the sentence, the learned sentencing judge moderated the head sentence for trafficking down to seven years.  His Honour proceeded to fix a parole eligibility date of 16 October 2022, thus requiring the applicant to serve three years actual imprisonment before being eligible to apply for parole.

The applicant had not served any time in pre-sentence custody in respect of either of the District or Supreme Court sentences.  The three-year period between the sentence date and his parole eligibility is the equivalent of one-third of the nine-year total of two years imprisonment imposed in the District Court and seven years imprisonment imposed in the Supreme Court.  This was slightly more than one-third of what then remained unserved of those two head sentences because two months of the two year District Court sentence had been successfully served while the applicant was on parole.  Just how negligible that difference is may be illustrated by the fact that exactly one-third of the unserved component would fall 35 ^1/3  months after sentence, whereas the eligibility date falls 36 months after sentence.  This demonstrates the effective parole eligibility was fixed at about the one-third mark.  It is not the law that judges must fix parole eligibility dates by reference to some fixed mathematical approach; see R v Hitchcock [2019] QCA 60 at [18].  However, the selection of a parole eligibility date at about the one-third mark accords with a sentencing practice commonly adopted to make allowance for guilty pleas and other considerations personal to the offender; see R v Amato [2013] QCA 158 at [20].

The conduct attracting the trafficking charge involved a serious elevation in the applicant’s undeterred embrace of commercial drug offending.  He carried on the business of trafficking for over seven months between 22 January 2018 and 9 September 2018, operating actively throughout the charged period.

The applicant trafficked predominately in tabs of LSD and pills containing MDMA and amphetamine.  He also sold MDA, amphetamine, cocaine and ketamine.  He employed two assistants, including his young girlfriend, at various stages of the trafficking to drive him to drug deals or deliver drugs for him.  He also used two friends to assist him in minor ways.  He used the mobile application Snapchat to try and avoid detection.  He had many customers, including some school students.

He frequently sold multiple boxes of 1,000 MDMA pills in single transactions at a mark up he once described “1,600 to 2,000 a box wholesale”.  He sometimes sold multiple boxes in one transaction.  His biggest sale was 10,000 pills for $35,000.  On another occasion, he paid $10,500 for what he thought would be 3,000 MDMA pills but was duped.

He sold LSD tabs more regularly in varying quantities, with the mark up evidently being lower for bulk purchases.  For instance, on one occasion he spoke of sales of 200 tabs per week equating to $2,500 to $3,000 profit.  On another occasion, he spoke of 3,650 tabs to be bought by him for $5,400, destined for purchase by six customers in amounts totalling $12,300.  Once, he sold a bulk amount of 1,000 tabs of LSD for $5,000.

It was common ground the applicant’s profit from the business would have totalled at least $200,000, from which it follows his total gross sales figure would have been substantially higher.  While he at times dealt in street-level amounts, it is obvious from the scale of the profit and the amounts of money and drugs mentioned in his detected sales communications that a substantial part of the business involved trafficking in wholesale amounts.

The applicant made some admissions to police but materially understated his actual criminality.  It was submitted that he co-operated by providing police with the access code to his telephone.  It is not apparent whether that was, in any event, a requirement included in the search warrant.

The applicant was committed for trial but pleaded guilty on arraignment within one and a half months of the indictment being presented, which the learned sentencing judge accepted was an early guilty plea.

He is a single man who worked as a sub-contractor to his glazier father.  He was only 19 at the time of offending.  It is well established that youthful offenders with limited criminal histories and promising prospects who have pleaded guilty should receive more leniency from the courts than would otherwise be appropriate, per McMurdo P in R v Mules [2007] QCA 47 at [21].  However, the fact that the applicant had offended while on parole for trafficking and the marked escalation in the seriousness of his trafficking detracted from the degree of leniency which may otherwise have been appropriate here on account of his youth.

In the week between his guilty pleas and sentence, the applicant was interviewed and tested by a psychologist, Mr Stoker, whose report was exhibited on sentence.  The report alluded to the applicant having been addicted to cannabis, his abuse of alcohol, LSD and MDMA, a family history of mental illness, his two suicide attempts and his engagement with the organisation Headspace since he was 15.  Mr Stoker opined the applicant had cannabis dependency disorder, MDMA and LSD abuse disorders, and was suffering a major depressive disorder or perhaps bipolar affective disorder.  He opined the applicant’s “offending can be seen as a result of having a serious psychological condition and medicating this condition through the use of illicit drugs.”  Given this opinion was apparently reached without reference to any relevant collateral sources and did not rest comfortably with the organised commerciality of the applicant’s conduct, the learned sentencing judge could not have been wrong to say Mr Stoker’s opinion “may be correct to some extent.”  Despite that opinion, his Honour remained of the view that the applicant’s primary motivation for offending was the “making of a very substantial monetary profit”.

A more significant exhibit in the applicant’s favour was a community corrections report about the applicant’s performance on parole.  The applicant breached his parole ordered by the District Court on 23 November 2017 by the commencement of his trafficking offence on 22 January 2018.  His parole was not suspended after his arrest on 8 September 2018.  Instead, for reasons which were not explained, he was permitted to spend the subsequent 13 months prior to the Supreme Court sentence in the community still on parole.  The report is largely silent about any rehabilitative intervention prior to the applicant’s arrest, but describes him engaging as directed with substance abuse and general counselling in the months thereafter.  The report asserts that, notwithstanding the applicant having reoffended, he had been compliant with the supervision process and engaged positively in meaningful intervention.

The applicant’s positive rehabilitative progress in the 13 months between his arrest and sentence ranked with his youth and guilty pleas as significant considerations in mitigation.  However, they were all matters the learned sentencing judge expressly took into account in sentencing the applicant, just as his Honour took into account the gravity of the offending and that it was committed while on parole.

In the normal course, offending of this gravity would, even on a plea of guilty, attract a head sentence materially greater than the seven year head sentence imposed here; see, for example, R v Strutt [2017] QCA 195; R v Berry [2017] QCA 271 and R v Nunn [2019] QCA 100.

That proposition holds true for a young but seriously determined offender like the applicant.  For example, in R v Sharkey; Ex parte Attorney-General (Qld) (2009) 195 A Crim R 237, the respondent was 20 and subject to an intensive drug rehabilitation order during his two-month period of high level trafficking in methylamphetamine and MDMA.  At first instance, he received an effective head sentence of nine years and seven months with parole eligibility after an effective three and a half years.  This court varied his parole eligibility date so that he was, in effect, required to serve at least four years and nine months.

More recently, in R v Maksoud [2016] QCA 115, the applicant was 18 to 19 during the six-month bulk of his wholesale trafficking in methylamphetamine and had reoffended on bail.  His sentence was reduced by this court to a head sentence of nine years imprisonment with parole eligibility set, in effect, after four years.

The head sentence imposed here reflects additional discounting to mitigate the potentially crushing consequences of a cumulative sentence upon a still young offender.  It is actually at the lower end of the range of seven to eight years imprisonment urged by the applicant’s counsel below.

For all of these reasons, the complaint of manifest excess in respect of the head sentence would be destined to fail.  The argument sought to be advanced would inevitably distil to the proposition that the length of time the applicant must serve before being eligible for parole is so long as to bespeak error; see House v The King (1936) 55 CLR 499 at 504–5, see also Dinsdale v The Queen (2000) 202 CLR 321 at 340.

It is in the nature of the sentencing discretion that there was no single correct parole eligibility date to be arrived at and, moreover, that it fell to be determined as part of the overall sentence to be imposed; see Markarian v The Queen (2005) 228 CLR 357 at 371.  That another sentencing judge might have favoured a slightly more generous parole eligibility date is no more to the point than that another sentencing judge might have favoured a slightly less generous head sentence.

The parole eligibility date here was set at about the one-third mark of the total period of relevant imprisonment, a more generous effective outcome than in either Sharkey or Maksoud.  The notion that such a parole date gave rise to an excessive sentence is unsustainable, even in respect of such a young offender, where, within two months of being placed on parole for trafficking, that offender embarked upon a sustained period of trafficking in wholesale quantities of schedule one drugs.  The proposed application is so lacking in merit that leave to pursue it out of time should be refused.

I would order that the application for extension of time be refused.

PHILIPPIDES JA:  I agree.

McMURDO JA:  I agree.

PHILIPPIDES JA:  The order of the Court is that the application for an extension of time is refused.