R v LAT[2021] QCA 104

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I have read the reasons of McMurdo JA and agree with those reasons and the order his Honour proposes.
2. [2]
   McMURDO JA:  The applicant pleaded guilty to one count of trafficking in a dangerous drug, namely methylamphetamine.  She was sentenced to three years’ imprisonment, with an order that she be released on parole after serving 12 months.  She seeks leave to appeal on the ground that her sentence was manifestly excessive.  However, as I will discuss, she also makes specific complaints about the reasoning of the sentencing judge.
3. [3]
   The applicant was aged 51 and 52 during the period of her offending, which was from 10 August 2017 until 22 March 2018.  She had a very minor criminal history, the relevance of which was to confirm that she had been a user of drugs for some time until she was dealt with for possession offences in 2005.  She is said to have been abstinent from drugs for a period of time.  However, she relapsed into the use of drugs in 2015 after her husband’s suicide when a friend supplied her methylamphetamine.  In 2016 the applicant moved in with her daughter and son-in-law.  Within days of moving in, the applicant’s son-in-law supplied her with methylamphetamine.  At that time, she began to assist him in his trafficking, and to engage in some independent selling of the drug herself.  In August 2017, her son-in-law was arrested and remanded in custody, and she commenced the period of trafficking for which she was sentenced.
4. [4]
   In October 2017, she was captured on a listening device, installed in the garage of another offender, discussing her trafficking business.  In the following month, she supplied that co-offender with a “ball” (3.5 grams) of methylamphetamine for $1,000, and purchased an unknown quantity of the drug from him.  She was recorded telling him that she was making enough profit “to keep food on the table”.  The prosecution accepted that her trafficking was for that purpose and to finance her own methylamphetamine consumption.  It was characterised as a “street” level business, and it was accepted that there were none of the “trappings of wealth” which would come from a more substantial enterprise.
5. [5]
   On 22 March 2018, police executed a search warrant at her house.  In her bedroom, on the floor next to the bed, was a mobile phone and a Samsung tablet.  Nearby on the floor was a tourniquet.  At the conclusion of the search, she was arrested and charged.
6. [6]
   A schedule of facts was tendered by the prosecutor at the sentencing hearing.  It contained details of what police found when reviewing the content of the Samsung tablet.  Relevantly, there were particular messages on the applicant’s Facebook account which were found on that device.  The Facebook messages spanned a period from July 2017 until March 2018.  According to the schedule of facts, the tablet contained Facebook messages received by the applicant at least once a week from customers seeking to source methylamphetamine or cannabis.  There were four Facebook conversations, the schedule stated, which clearly evidenced the supply of drugs, and other messages which used coded language, but nevertheless revealed conduct indicating that the applicant running a business.  The Facebook messages also included threatening messages to customers.
7. [7]
   On the afternoon of the search of her home, the applicant participated in an interview with police.  Four months later, she returned to the police station and provided a sworn version of events.  She told police of her involvement in her son-in-law’s trafficking enterprise.^[1]  She said that fear of her son-in-law was the reason why she engaged in that activity, and it was by that means that her appetite for methylamphetamine increased.  She admitted to police that she had pursued drug debts which were owing to her son-in-law, and that the profits from her own trafficking allowed her to make a payment of $2,000 or $3,000 towards her son-in-law’s mortgage.
8. [8]
   With one qualification, the facts set out in the schedule were conceded at the sentencing hearing.  That qualification was the statement in her counsel’s written submissions that “the Facebook account and the tablet, upon which the incriminating messages were sent, was utilised by both herself and her partner.”  At the same time, counsel conceded that the Facebook messages evidenced her trafficking, and it was said that they demonstrated that she dealt only in small quantities of the drug.
9. [9]
   The applicant was sentenced under s 13B of the Penalties and Sentences Act 1992 (Qld).  She had provided valuable information to police which had led to the arrest of two persons.  In an affidavit by a senior police officer, it was said that the information provided by her had proved to be accurate and reliable, and that it was unlikely that such specific information would have been obtained from the use of conventional policing methods alone.
10. [10]
    The sentencing judge reasoned as follows.  He recognised the applicant’s difficult childhood in which she had experienced poor mental health.  He also recognised that the applicant had demonstrated an ability to abstain from drugs, although she had been addicted to them at the time of this offence.  His Honour accepted the evidence, in a doctor’s report, that the applicant had been diagnosed with severe depression and suicidal thoughts, which were then being managed by medication and that she suffered from severe agrophobia and post traumatic stress disorder related to domestic violence in her past.  She suffered ongoing pain with a knee injury.  His Honour also accepted a statement by her counsel that she suffered from a bipolar disorder and a borderline personality disorder.  The judge also allowed for her attempts at rehabilitation, which he said had been “somewhat thwarted by COVID”.  He observed that the applicant was a street-level dealer who had no “trappings of wealth”, and that she was remorseful as indicated, in part, by her timely plea of guilty.
11. [11]
    Nevertheless, there were aggravating factors: a code was used to frustrate investigators, threats were made to customers and the offending was motivated (partly) by profit.
12. [12]
    The judge recognised her significant cooperation with law enforcement, which had engaged s 13B, and concluded that it was such that her sentence should be reduced by 40 per cent.  The judge said that he would have sentenced the applicant to five years’ imprisonment, with parole eligibility after 20 months, but for that co-operation.
13. [13]
    In the applicant’s written submissions, three specific points are sought to be made.  The first is that insufficient weight was given to her co-operation with police.  She emphasises that she put her personal safety at risk by becoming a police informant, which has resulted in death threats and destruction of some her personal property.  She describes her experience in prison, as a result, as a very traumatic time for her.  All of that can be accepted.  However, it does not appear, either from the sentencing remarks or the sentence itself, that the judge underestimated the extent of her co-operation or the potential risk to her safety in consequence of it.  No error by the judge in this respect is demonstrated.
14. [14]
    Her second complaint is that, she now contends, the Samsung tablet was not used by her and that the apparently incriminating Facebook messages on the device were those of her “flatmate” at the time.  The applicant says that her lawyer had told her at the time of her sentencing hearing that nothing on the tablet would be used against her.  She says that the fact that there were Facebook messages on her phone show that she was not using the Samsung tablet.  By this argument, she seeks to challenge not only the content of the schedule of facts, but also what was said by her counsel to the sentencing judge.  As I have noted, counsel made a qualified admission of the relevant part of the schedule of facts, but still conceded, on her behalf, that the tablet contained Facebook messages which evidenced her trafficking.  There was no error by the judge in this respect.  Further, this belated challenge to a factual matter is inconsequential, because absent evidence that these messages were hers, there was ample evidence, most notably her plea of guilty, of her trafficking.
15. [15]
    Her third point is that without saying so, the sentencing judge inflated her sentence because she arrived late for the hearing (due to heavy traffic between Gladstone and Rockhampton).  She claims that her lawyer wrote to her saying that her outcome would have been much better had she not been late for Court.  Whether or not her lawyer did say that, there is no reason to suppose that this affected his Honour’s decision.
16. [16]
    What remains is her stated ground of appeal, which claims that the sentence is manifestly excessive.  The sentence was supported by a number of comparable cases.
17. [17]
    In R v Mikula,^[2] this Court did not disturb a sentence of four years’ imprisonment, suspended after 16 months, for trafficking in dangerous drugs over a nine month period, at a relatively low level, although motivated by the prospect of commercial gain.  That applicant was aged 22 and 23 years at the time of his offending and had a minor criminal history.  His trafficking was described by McMurdo P as broadly comparable to that in R v McAway^[3] and R v Taylor,^[4] where five year sentences, in the first case with parole eligibility after 18 months and in the second case with the term suspended after two years, were imposed.
18. [18]
    A less serious case was R v Scott,^[5] where the trafficking was conducted over a period of two months involving no more than eight customers and in small amounts.  He was sentenced to a term of three and half years’ imprisonment with a recommendation of post-prison community based release after fifteen months.
19. [19]
    A more serious case was R v Walker,^[6] where the applicant was sentenced, after a trial, for offences including trafficking in methylamphetamine and cannabis.  She sold at a street level over a period of eight and half months.  She had a similar number of customers to the present applicant, but she trafficked in higher quantities.  She continued to carry on her business whilst on bail.  This Court did not disturb a sentence of six and half years’ imprisonment with parole eligibility at the half way mark.
20. [20]
    In R v Borowicz,^[7] a sentence of five years’ imprisonment, suspended after one year and eight months, was imposed for an offence of trafficking in methylamphetamine and other drugs, with lesser concurrent terms for other drug offences.  That applicant pleaded guilty and there was an agreed schedule of facts, showing the offender had 31 customers during his trafficking over a four month period in which his profit was estimated as between $5,400 and $7,200.
21. [21]
    The sentence in the present case is not manifestly excessive, although a lower sentence might have been imposed.
22. [22]
    I would order that the application for leave to appeal against sentence be refused.
23. [23]
    BURNS J:  I agree.