R v Wilson[2021] QCA 115

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with Wilson J’s reasons and the orders proposed by her Honour.
2. [2]
   BOND JA:  I agree with the reasons for judgment of Wilson J and with the orders proposed by her Honour.
3. [3]
   WILSON J:  The applicant, Chloe-June Christine Wilson, seeks leave to appeal against a sentence imposed in the Supreme Court of Queensland on 30 July 2020.  The applicant was sentenced in relation to three offences under the Drugs Misuse Act 1986 (Qld):

   1. (a)
      Count one: trafficking in the dangerous drug methylamphetamine between 20 December 2018 and 7 February 2019;
   2. (b)
      Count two: possessing methylamphetamine in excess of two grams on 21 December 2018;
   3. (c)
      Count three: possessing methylamphetamine in excess of two grams on 22 December 2018.

4. [4]
   The applicant was sentenced to four years’ imprisonment in relation to count one, with a parole eligibility date fixed at 20 August 2021 and 70 days declared as pre-sentence custody.  The applicant was convicted and not further punished in relation to the other two counts.
5. [5]
   The applicant was represented by counsel at her sentence hearing but was self-represented in the Court of Appeal.  She contends that the sentence imposed by the learned sentencing judge was manifestly excessive.

Circumstances of the applicant’s offending

6. [6]
   There was an agreed schedule of facts at the sentence hearing, which the sentencing judge set out in considerable detail.
7. [7]
   The applicant trafficked in methylamphetamine over a 49-day period.  Her trafficking activities were detected via telephone intercepts targeting a man named Walker.  The applicant obtained wholesale quantities of methylamphetamine from Walker and sold them in personal use quantities.  On occasion she sold larger amounts which could be on-sold.  She had a customer base of at least six people and would boast to Walker about how busy she was.  The true extent of the applicant’s trafficking could not be determined and her profits were unknown.
8. [8]
   On 21 December 2018, police found the applicant in possession of five clip seal bags containing 17.3 grams of pure methylamphetamine in 24.7 grams of substance.  She declined to participate in an interview with the police and was given a notice to appear.
9. [9]
   Just over 24 hours later, on 22 December 2018, the applicant was a passenger in a car that was intercepted by police.  Police observed the applicant jump out of the car while it was still moving and throw something over a fence.  She initially denied throwing anything over the fence but then told police that she had thrown a cigarette packet.  When police looked around the fence, they found a pouch with four clip seal bags containing 5.95 grams of pure methylamphetamine in 8.3 grams of substance.
10. [10]
    On 10 January 2019, the applicant was found with a “tick sheet” naming seven people.  She was arrested, declined to participate in an interview and refused bail.

11. [11]
    It was accepted at the sentence hearing that the applicant possessed the methylamphetamine on both occasions for commercial purposes.

The applicant’s antecedents

12. [12]
    The applicant was 28 years old at the time of her offending and 29 years old at the time of her sentence.  She has a relatively minor criminal history that began in 2010.  All of her offending prior to these offences was dealt with in the Magistrates Court.
13. [13]
    Relevantly, on 23 March 2017, the applicant committed two offences of possessing dangerous drugs and one offence of possessing a drug utensil.  She was sentenced in the Mackay Magistrates Court on 3 May 2017 to a recognisance of $450.00 and an order that she be of good behaviour for four months and attend a drug diversion program.  No convictions were recorded.  The applicant successfully attended the drug diversion program but fell back into drug use.
14. [14]
    On 29 September 2019, the applicant was again found in possession of a drug utensil and was sentenced for this offence.  On 4 November 2019, she was sentenced in the Southport Magistrates Court for this offence, as well as for two breaches of bail and for being in possession of suspected stolen property.  She was sentenced to a $750.00 fine with convictions recorded.
15. [15]
    At her sentencing hearing, the applicant’s counsel stated that she had not committed any further drug offences since being charged with the trafficking offence.
16. [16]
    The applicant’s counsel’s written and oral submissions set out her background, which was all taken into account by the sentencing judge.  The applicant has struggled with a dysfunctional family life, domestic violence, mental and physical health issues and drug addiction.  When she was ten, her two-year-old brother drowned in a swimming pool.  Her mother’s mental health suffered and, at the age of eleven, the applicant went to live with her aunt as her mother’s drinking spiralled out of control.
17. [17]
    The applicant has three children aged twelve, ten and six with her ex-partner.  Her relationship with her ex-partner ended in 2014 and, in 2017, she applied for a domestic violence order against him.  There is an extensive history of disputes and Family Court proceedings between the applicant and her ex-partner about access to and contact with their children.  At the time of the sentence, there were consent orders in place for shared custody.
18. [18]
    The applicant’s counsel submitted that the applicant turned to drugs when she was withheld access to her children but, at the time of sentence, she was drug free.
19. [19]
    The applicant was also subject to domestic violence from a later partner, which involved physical violence.
20. [20]
    The applicant suffered a back injury in a motor vehicle accident on 17 July 2016, which caused her pain and interfered with her ability to work.  She was prescribed medication for her back pain but she also self-medicated.
21. [21]
    The applicant has mental health issues.  At the sentence, material was tendered on her behalf that referred to diagnoses of post-traumatic stress disorder and anxiety relating to domestic violence.  The applicant has also suffered from an adjustment disorder and depression and was prescribed antidepressants.
22. [22]
    The applicant was homeless for a period, sought assistance from a women’s refuge and, at the time of her sentence, was living in accommodation provided to her.
23. [23]
    Despite all of these setbacks, the applicant has a relatively good work history.  She completed a Certificate III in Business Administration from the Central Queensland University.  Whilst on remand, she completed five courses with Lives Lived Well.  At the time of the sentence, she was employed as a cleaner.

Prosecution’s submissions at sentence

24. [24]
    The prosecution set out the aggravating features of the applicant’s conduct, which included the significant quantity of drugs, prolonged period of trafficking and the fact that the applicant sold both to end users and suppliers.  The prosecution categorised the applicant’s trafficking as “a little above street level”.
25. [25]
    In relation to matters of mitigation, the prosecution acknowledged the applicant’s early pleas of guilty and that the trafficking involved no allegations of violence to enforce debts.
26. [26]
    The prosecution referred to R v Scott,^[1] where the Court of Appeal observed that the range for low-end trafficking in methylamphetamine was three to five years’ imprisonment.  The prosecution submitted that the offender in Scott was younger and operated at a lower level than the applicant.  The offender in Scott was sentenced to three and a half years’ imprisonment for trafficking.  Accordingly, the prosecution submitted that a sentence of four and a half years’ imprisonment would be justified in the applicant’s case, with a parole eligibility date after 18 months’ imprisonment.

Applicant’s submissions at sentence

27. [27]
    The applicant’s counsel highlighted the following matters:

    1. (a)
       The applicant’s early pleas of guilty;
    2. (b)
       The offending occurred over about a month and a half;
    3. (c)
       The trafficking could not be said to be highly sophisticated;
    4. (d)
       Whilst a commercial purpose was accepted, the applicant was herself a user of methamphetamine;
    5. (e)
       The applicant had completed five courses whilst incarcerated with Lives Lived Well;
    6. (f)
       The applicant self-medicated for a back injury which occurred in a car accident in 2016; and
    7. (g)
       The applicant suffered from depression and was placed on a mental health plan in November 2016.
28. [28]
    The applicant’s counsel accepted that the range was three to five years’ imprisonment.
29. [29]
    In written submissions, the applicant’s counsel referred to the case of Scott and set out the differences between the circumstances of the offender in Scott and the applicant’s circumstances:

“[The offender in Scott] was 21 at the time of offending.  The defendant was 28.  Scott trafficked over a period of 2 months.  The defendant about one and a half months.  Scott’s Plea of Guilty was taken into account.  The Court said [this] to be a late plea which ought to be reflected in any discount.  The defendant’s pleas are accepted as early pleas of guilty and should be accorded full recognition.  Scott’s trafficking [concerned] both amphetamine and cannabis.  It is contended that a sentence comparable to that imposed on Scott should be appropriate with an early parole eligibility having regard to her early pleas and unfortunate personal circumstances them in Scott.”

30. [30]
    The applicant’s counsel submitted that the head sentence should be the same as that which was imposed in Scott, namely three and a half years’ imprisonment.
31. [31]
    However, in relation to the parole eligibility date, the applicant’s counsel stressed that, taking into account the applicant’s attempts at rehabilitation and the fact that she had not reoffended with drug offences, she should be given a parole eligibility date after a shorter period of time than what was imposed in Scott.

The sentence imposed

32. [32]
    The sentencing judge set out the applicant’s antecedents, the matters in her favour, and those that were not:

“Ms Wilson, you have a number of features against you in respect of sentencing, and a number of features in your favour.  Your plea of guilty is in your favour.  You will receive an appropriate discount because of that.  Your counsel says your prior criminal history is minor, particularly for someone involved in trafficking of dangerous drugs, with only one prior drug charge – or three offences on the one day.  As your counsel says in his written submissions, there is no suggestion of violence to enforce the drug debts, which is in your favour.  You have a good work history.  Some time has passed between the offending and the current circumstances in which you have undertaken rehabilitation in terms of courses, and you have obtained employment.  I take into account that if you are sent to a women’s correctional facility in the south east corner at the present time you will have a difficulty in that they are locked down, so you will not receive visits.  It cannot be determined how long that condition will last for, but it is obviously there for good reason, that is to restrict COVID from entering into the prison system.  You have a disadvantaged background having suffered from domestic violence in the manner in which I have set out.

There are a number of features against you.  This is very serious offending.  Parliament has set a maximum of 25 years imprisonment for each of the counts.  It is important to deter people from getting involved in the commercial possession, or the trafficking of methylamphetamine.  It is a terrible drug.  It ruins lives.  It leads to people committing violence upon other people.  People entering into other persons’ homes and stealing things from strangers, from their family indeed.  It needs to be deterred and denounced.  A particular aggravating feature in the present case are the facts which are agreed, that is although detected by the police on the 21^st day of December 2018 within 13 hours you were back obtaining a larger supply only to be found the next day, the 22^nd, again detected by police, and again back to trafficking, and it does show a person that was in the grips of the drug at the time, but they are aggravating features to your offending.”

33. [33]
    The sentencing judge considered Scott as a yardstick and concluded that the applicant was “a worse example” than the offender in Scott.
34. [34]
    The applicant was sentenced to four years’ imprisonment for the trafficking offence.  In view of the applicant’s antecedents, her limited criminal history and good work history, the sentencing judge set a slightly earlier than usual parole eligibility date after 15 months.
35. [35]
    The applicant was convicted and not further punished in relation to the two possession charges, as they were particulars of the trafficking charge.

The applicant’s submissions on appeal

36. [36]
    The applicant submits that the sentence that should have been imposed was three years’ imprisonment to be wholly suspended after serving nine months.
37. [37]
    The applicant referred to a number of the matters that were put before the sentencing judge in relation to her antecedents and matters of mitigation.  The applicant also made a number of complaints about her legal representatives including that:

    1. (a)
       Her counsel failed to tender the domestic violence protection order that was made on 8 July 2020.  She states that this got in the way of her attempt to rehabilitate, as she was physically assaulted a week prior to her commencing a flight preparation course at Aviation Australia at the Brisbane Airport on 16 June 2020.
    2. (b)
       The applicant was not made aware that she would be returning to custody prior to her sentence and was therefore unable to make arrangements about her belongings prior to being returned to custody.
    3. (c)
       Two weeks prior to her sentence, the applicant’s solicitor represented Walker’s girlfriend, McLean.  McLean was charged with several drug offences, including trafficking.
    4. (d)
       The applicant’s counsel failed to elaborate on her mental health circumstances in relation to the domestic violence and the family law matters involving the father of her children.  The applicant has provided an affidavit setting out these matters in more detail.  The applicant requires leave to adduce this fresh evidence.
38. [38]
    In my view, none of these matters, by themselves or taken together, affect the outcome of this matter.  I note that the applicant’s counsel made submissions about domestic violence inflicted upon the applicant by both her former and current partner.  I also note that the applicant’s curriculum vitae was tendered, which makes reference to her being enrolled in a “cabin crew flight attendant course at Learning Cloud Australia”.
39. [39]
    Any failure by the applicant’s solicitor to inform her that she would be returning to custody is of no relevance to whether her sentence was excessive.
40. [40]
    Further, the applicant did not develop how her solicitor’s representation of another defendant in the same operation compromised her own representation.  The sentence proceeding itself was conducted by very experienced counsel.  The sentence for Ms McLean was conducted by different counsel.
41. [41]
    The applicant also sought to rely upon an affidavit that sets out in more detail the reasons why she committed the offences, the applicant’s relationship with her childrens’ father and the issues she experienced in relation to the custody of her children.  The applicant states that she thought she could pay for a good solicitor to assist her with getting her children back by selling drugs.  She sets out the financial difficulties she experienced, the mental health issues she has suffered and the courses she has done whilst in custody since being sentenced.
42. [42]
    Leave is required to adduce this evidence.  In my view, leave should not be granted.  The affidavit almost entirely details matters occurring before the sentence date.  These matters would have been known to the applicant at the time of sentence and available for counsel.  The remaining details relate to courses completed in custody and are not relevant to the issue of manifest excess, nor the discretion exercised by the sentencing judge.
43. [43]
    In any event, in my view, none of the matters raised by the applicant in this affidavit will change the outcome of her application for leave to appeal against her sentence.

Discussion

44. [44]
    In my view, the applicant’s sentence was not manifestly excessive.
45. [45]
    The range of appropriate sentences in trafficking cases is wide.  As Davis J (with whom Sofronoff P and Philippides JA agreed) noted in R v Morrison:^[2]

“[55] The circumstances in which the offences of trafficking and supply of drugs occur vary widely. High sentences may be justified for both trafficking and supply of cannabis. Low sentences may also be justified depending upon the circumstances. That the range of sentences is so wide is shown from the cases justifying non-custodial sentences for trafficking even in schedule 1 drugs in some limited circumstances.”^[3]

46. [46]
    In trafficking cases, the exercise of the sentencing judge’s discretion within this wide range will depend on the particular facts of each case.
47. [47]
    Critically, this Court may not substitute its opinion for that of the sentencing judge merely because it would have exercised its discretion differently.^[4]  The applicant in this case must show that her sentence was manifestly excessive in all of the circumstances.  The observations of Morrison JA (with whom Sofronoff P and Boddice J agreed) in R v Crook^[5] are apposite in this respect:

“[51] When considering the question of whether a sentence is manifestly excessive, one must bear in mind what was said in R v Tout:

“[A] contention that the sentence is manifestly excessive is not established merely if the sentence is markedly different from sentences in other cases. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is ‘unreasonable or plainly unjust’: Hili v The Queen (2010) 242 CLR 520 at [58], [59].”

[52] Furthermore, there is no one single correct sentence. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the relevant statutory regime.”

48. [48]
    The applicant’s counsel provided written submissions and submitted that the appropriate sentencing range in this case was three to five years’ imprisonment.  Her counsel urged the sentencing judge to impose a head sentence in line with Scott,^[6] with a parole eligibility date earlier than the 15 months imposed in Scott.
49. [49]
    Both counsel at the sentence hearing referred to Scott and leveraged their submissions as to the appropriate sentence by reference to this case.  Scott involved a young offender who was 21 years old at the time of offending and 23 at the time of the sentence.  The offender in Scott pleaded guilty to one count of trafficking in dangerous drugs, three counts of possessing dangerous drugs and one count of possessing things used in connection with dangerous drugs.  The trafficking period spanned just over two months and involved methylamphetamine and cannabis.
50. [50]
    The offender in Scott was found in possession of drugs on two occasions.  On the first occasion, he was found in possession of a small amount of methylamphetamine (0.6 grams pure in 2.832 grams of substance) and materials used in the manufacture of commercial methylamphetamine.  He was granted bail.  Three days later, he was found in possession of a small amount of cannabis and a small amount of methylamphetamine (0.461 grams pure in 2.288 grams of substance), a mobile phone and $200.00 cash.  The offender in Scott gave a record of interview with police, in which he admitted supplying cannabis and methylamphetamine to between five and eight people over a period of about two months.  He said that, of the drug supplies he purchased, he would use some for his own use and sell the balance to fund his own habit.  He admitted that he used a mobile phone to arrange the sale of drugs to other people.  The circumstances of the trafficking only came to light due to these admissions.
51. [51]
    In Scott, there was some confusion as to whether the plea was early or not.  However, Keane JA (as his Honour then was) did not find it necessary to determine this issue as, even if the plea was regarded as an early plea, it would make no difference to the outcome.  The offender in Scott had a minor criminal history, including one conviction for possession of a dangerous drug.  He had three children, two with his previous partner and one with his current partner.  It was said that he endured a “turbulent break-up” with his previous partner in 2002.  He became depressed and resorted to using amphetamines as a result.  It was said that he had cured himself of his habit.  He was a plasterer by trade and had good employment prospects upon being released from custody.
52. [52]
    The sentencing judge considered Scott a yardstick, but found that the applicant was a “worse example” than the offender in Scott.  I agree with this characterisation.
53. [53]
    The offender in Scott was younger, participated in a record of interview and made comprehensive admissions to the offending.  The applicant did not participate in a record of interview, nor did she make any admissions when intercepted by police.  In fact, in relation to the applicant’s second possession offence, she told police she had thrown a cigarette packet as she thought there was a bud of cannabis inside.  Instead, police found 5.95 grams of pure methylamphetamine in four clip seal bags.  Further, the two possession offences in Scott involved considerably smaller quantities of drugs than those committed by the applicant.
54. [54]
    The applicant referred to the sentence imposed on Walker’s girlfriend, who pleaded guilty to trafficking.  This sentence was successfully appealed.  In R v McLean,^[7] the sentence of five years’ imprisonment with a parole eligibility fixed at 10 December 2021 was reduced to four years’ imprisonment suspended after twelve months, with an operational period of four years.
55. [55]
    An overwhelming feature of McLean was that the offender was a young, susceptible woman, who was introduced to drugs and the selling of drugs by her violent partner, and that she had good prospects of rehabilitation.  President Sofronoff in McLean, referred to R v Azzopardi,^[8] and stated that:

“[14] […]Offending is to be considered as contextual to an offender’s age and immaturity and an offender’s youth generally implies a capacity to mature and develop skills that will enable the offender to lead a law-abiding life.”^[9]

56. [56]
    The applicant does not have the advantage of youth.  She was 28 at the time of the offending and, I note, a mother of three children.
57. [57]
    In my view, McLean does not support the applicant’s contention that her sentence was manifestly excessive.  I note that the trafficking in McLean was more intense and involved her possessing a greater weight of methylamphetamine.  However, there were significant matters of mitigation that are beyond those that are present in the applicant’s case.  In McLean the offending was regarded as “undoubtedly largely the product of Walker’s emotional and physical pressure to exploit a susceptible young woman”.^[10]
58. [58]
    The applicant referred to R v Cuddy,^[11] R v Liddicoat,^[12] and R v White.^[13]  These cases are dated and of little relevance.  In Cuddy, Thomas J refers to methylamphetamine as follows:

“Methylamphetamine is a drug prescribed in the second schedule to the Drugs Misuse Act 1986 (Qld). Counsel were unable to refer to any cases in this State which give guidance as to how it should be viewed in the scale of seriousness. In Cronn (1983) 34 SASR 555 the Supreme Court (in Banco) of South Australia expressed the view that amphetamines were a drug of the “middle range”, that is to say more dangerous and habit forming than cannabis but less harmful than heroin. It was (sic) been suggested that the drug is not physically addictive but that users of it become psychologically dependent, developing tolerance to it and requiring greater quantities. Its effects simulate the production of adrenaline, and it causes talkativeness, excitement, elation, perspiration and dilation of the pupils. Prolonged use induces nervous anxiety and sometimes delusions of persecution and hallucinations: P Bucknell, “Notes on Some Controlled Drugs” [1985] Crim L R 260 at 265, 266.”^[14]

59. [59]
    Since that time, much has changed in relation to how the Legislature and courts treat the scourge of methylamphetamine on our society.  When Cuddy was decided, methylamphetamine was a Schedule 2 drug under the Drugs Misuse Act and trafficking in methylamphetamine attracted a maximum penalty of 20 years’ imprisonment.  In 2001, methylamphetamine was reclassified as a Schedule 1 drug, meaning that trafficking offences attracted a higher penalty of 25 years’ imprisonment.^[15]  The maximum penalty for trafficking in either Schedule 1 or Schedule 2 drugs is now 25 years’ imprisonment.^[16]
60. [60]
    The reclassification of methamphetamine as a Schedule 1 drug with a higher maximum penalty represents a legislative acknowledgement of the social corrosion promoted by its production, consumption and distribution.^[17]  The addictive nature and damaging effects of methamphetamine on both drug users and those around them are now well known.  Those who traffic in such a drug should expect condign punishment.^[18]
61. [61]
    The applicant also referred to R v Piccles,^[19] where the applicant was sentenced to four years’ imprisonment for trafficking in wholesale and street-level quantities of methylamphetamine for just over a month.  At the time of committing this offence, the offender in Piccles was on parole for earlier offence, including one of trafficking in methylamphetamine.  The sentencing judge ordered that the sentence be served cumulatively on the other sentences and set a parole eligibility date approximately one year beyond the full-time expiry date of the earlier sentences.  Accordingly, the head sentence of four years’ imprisonment for trafficking in wholesale and street level quantities of methylamphetamine cannot be looked at in isolation, without considering the cumulative effect of that sentence.  Piccles is not of any assistance or relevance to the applicant’s matter, as it involves issues of totality.
62. [62]
    The respondent referred to R v Blumke,^[20] where a sentence of four years’ imprisonment was imposed upon a 27-year-old offender for trafficking in methylamphetamine over ten weeks.  The offender in Blumke had sold a total of 33.581 grams (15.228 grams pure) of methylamphetamine and 0.467 grams of pyrovalerone to an undercover officer for $12,700.00 on seven separate occasions.  The term of imprisonment was suspended after twelve months.  In addition, the defendant sold a co-offender methylamphetamine to sell to his own customers on more than ten occasions, with a supply of seven grams on one occasion.  These offences were detected by monitoring the co-offender’s telephone calls.  The sentencing judge took into account significant rehabilitation undertaken by the offender.
63. [63]
    In R v Jobsz,^[21] this Court exercised a discretion to resentence the offender to four years’ imprisonment, suspended after twelve months for trafficking in cocaine and MDMA on a single day.  The offender was sentenced to lesser, concurrent terms for possessing 6.206 grams pure cocaine, 35.612 grams MDMA (in 27 tablets) and possessing other indicia of trafficking, including scales and cash.  That offender was 25 years of age at the time of offending and 27 at the time of the sentence.  He had no criminal history.  Jobsz is akin to Blumke, in that the lower custodial component of the sentence reflected significant efforts at rehabilitation.
64. [64]
    In my view, after considering the applicant’s offending and circumstances, and the cases to which I have referred (in particular Scott), a head sentence of four years’ imprisonment is not manifestly excessive in all of the circumstances.
65. [65]
    The parole eligibility fixed after 15 months was also within the proper exercise of the judge’s discretion; it was one month earlier than one third of the head sentence.  Such an earlier eligibility reflected various mitigating features and, whilst a slightly earlier eligibility date was open, no manifest excess has been demonstrated by the current eligibility date.
66. [66]
    The applicant has not demonstrated any misapplication of principle by the sentencing judge, nor that the sentence imposed was unreasonable or plainly unjust in the circumstances.  In my view, the sentence that was imposed was not excessive and I would make the following orders:

    1. (a)
       the application for leave to adduce further evidence is denied; and
    2. (b)
       the application for leave to appeal against sentence is dismissed.