R v Rose[2020] QCA 234

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  The applicant pleaded guilty to six counts of supplying a dangerous drug, one count of possessing a thing used in connection with the supply of a dangerous drug, possessing a dangerous drug, namely methylamphetamine, in a quantity greater than 2 grams, possessing dangerous drugs, namely cannabis and methylenedioxyamphetamine, possessing 4-Hydroxybutanoic acid and contravening an order to access information stored electronically.  He also pleaded guilty to certain summary charges which it is unnecessary to mention.  Dalton J sentenced the applicant to a sentence that was, effectively, one of four and a half years’ imprisonment with parole eligibility after serving one third of his sentence.  The applicant seeks leave to appeal his sentence on the ground that it was manifestly excessive.
2. [2]
   On the morning of 16 March 2018 the applicant was sentenced in the Magistrates Court on an unrelated charge for possession of dangerous drugs.  Later that day he received a telephone call from somebody asking if he was “still in business”.  He was.  He then supplied a customer with 7 grams of cannabis.  This was count 1 on the indictment.  Over the next month he made five further supplies of drugs.  These were counts 2, 3, 4, 5 and 7.  When police later searched his home, they found 22.55 grams of pure methylamphetamine, which was count 10, 12 grams of cannabis, which was count 11, 103.172 grams of GBL, which was count 12, and a mobile phone, scales and a vacuum sealer, which constituted the remaining charges.  The applicant accepted that his possession of the methylamphetamine, the subject of count 10, was for a commercial purpose.
3. [3]
   The applicant had a criminal history.  He had been sentenced in 2014 for possession of dangerous drugs, also for a commercial purpose.  On that occasion Boddice J sentenced him to a term of imprisonment of four years and six months.  He was on parole for this offence when he committed the offence in count 1.
4. [4]
   At the sentence hearing before Dalton J the applicant, by his counsel, correctly accepted that it would be right to sentence him to a term of imprisonment greater than the term which Boddice J imposed in 2014.  On his behalf it was submitted that he had abstained from using drugs for the three months before sentence, and he tendered test results which proved that that was so, that he had suffered a damaging upbringing as a child and that he was suffering from symptoms of post-traumatic stress disorder.  He said that his use of cannabis alleviated these symptoms.
5. [5]
   The applicant does not submit that Dalton J erred in any way.  For that reason it is unnecessary to detail or consider in any detail the submissions made to her Honour or consider the matters that her Honour took into account when she sentenced the applicant.  Rather, he submits that, on the basis of further evidence that he would seek to tender on his appeal, “a lower sentence was warranted”.  He submits that this evidence would prove two things:

   1. (a)
      In late December 2019 the applicant fell off his skateboard and injured his shoulder and arm.  He underwent surgery for a dislocated shoulder and fractured humerus.  He was advised to undergo physiotherapy.  He says that he has been unable to undergo physiotherapy in prison.  A copy of his discharge summary from the Gold Coast Hospital says that he was discharged “against medical advice”.
   2. (b)
      Since containment restrictions were imposed in Queensland prisons in March 2020 as a result of the ongoing pandemic, the applicant has been unable to enjoy visits from his family.  He says that his “mental health has significantly deteriorated due to these restrictions” and that the ongoing “uncertainty of my otherwise reliable support network severely impacted” his “wellbeing”.
6. [6]
   The evidence to prove these matters was in the form of an affidavit by the applicant that has been tendered on the application for leave to appeal.
7. [7]
   The evidence about the applicant’s injury could not possibly justify a conclusion that the sentence should be disturbed.  First, his injury was a matter about which he knew at the time of sentence.  Second, without independent evidence it would be impossible to accept that the applicant has been denied necessary therapy while in prison.  His own say-so is inadequate.  Even if he was being denied necessary treatment, the appropriate course would still not be an interference with the sentence that has been imposed.  It would be for the applicant to seek the treatment to which he is entitled.  His affidavit makes no mention of any efforts on his part to get the treatment that he says he needs.  He does not even say that he was obtaining such treatment before he was imprisoned.
8. [8]
   The evidence about the effects upon him of the necessary restrictions that have been put in place to safeguard his health, as well as the health of other prisoners and correctional staff, is likewise incapable of justifying interference with the sentence.  His evidence amounts to nothing more than a statement describing the kind of discomfort being suffered by every prisoner.  It does not amount to evidence that could justify a conclusion that his imprisonment has been rendered so severe by the existence of circumstances beyond his control as to warrant reducing his term of imprisonment.^[1]  In any case, the restrictions imposed from time to time will change as conditions change.
9. [9]
   The application lacks any merit.  Leave to appeal should be refused.
10. [10]
    FRASER JA:  I agree with the reasons for judgment of Sofronoff P and the order proposed by his Honour.
11. [11]
    McMURDO JA:  I agree with Sofronoff P.