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R v Hilton[2021] QCA 286

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hilton [2021] QCA 286

PARTIES:

R

v

HILTON, Matthew Maxamillion

(applicant)

FILE NO/S:

CA No 29 of 2020

SC No 97 of 2019

SC No 121 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns – Date of sentence: 12 February 2020 (Henry J)

DELIVERED ON:

17 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

8 November 2021

JUDGES:

McMurdo JA and Daubney and Boddice JJ

ORDERS:

  1. 1.Leave to appeal be granted.
  2. 2.The appeal against sentence be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant’s sentence was the subject of a two day hearing – where there was no agreed statement of facts tendered during sentence hearing – where oral submissions were made by the Crown prosecutor and defence counsel regarding the factual basis for sentence – where the applicant submitted the sentencing Judge did not identify the standard applied in determining whether those measures allowed the drawing of a reasonable inference of the level of criminality sufficient to support a sentence of ten years or more imprisonment – whether the sentencing remarks disclose an error warranting a re-exercise of the sentencing discretion

Evidence Act 1977 (Qld), s 132C

COUNSEL:

S C Holt QC, with M L Longhurst, for the applicant

E L Kelso for the respondent

SOLICITORS:

Mellick Smith & Associates for the applicant

Director of Public Prosecutions (Queensland) for the respondent
  1. [1]
    McMURDO JA:  I agree with Boddice J.
  2. [2]
    DAUBNEY J:  I agree with the reasons of Boddice J and with the orders he proposes.
  3. [3]
    BODDICE J:  The applicant seeks leave to appeal a sentence of 10 years’ imprisonment imposed on 12 February 2020 for an offence of trafficking in dangerous drugs.
  4. [4]
    The sole ground of appeal, should leave be granted, is that the sentence was infected by error in the application of s 132C of the Evidence Act 1977 (Qld) when considering aggravating features of the applicant’s offending.

Background

  1. [5]
    The applicant was born on 11 November 1987.  He was aged 28 to 30 at the time of the commission of the trafficking offence and 32 at sentence.  The applicant had no relevant criminal history.
  2. [6]
    On 7 August 2019, an indictment was presented against the applicant and three co-accused alleging, relevantly, that the applicant and his co-accused had trafficked in dangerous drugs whilst participants in a criminal organisation (Count 1); that the applicant possessed a dangerous drug in excess of 2 grams (Count 2); that the applicant possessed other dangerous drugs (Counts 3 and 4); and that the applicant contravened an order about information necessary to access information stored electronically (Count 9).
  3. [7]
    Count 1 was alleged to have been committed between 1 March 2016 and 3 January 2018.  The dangerous drugs involved in the trafficking business were methylamphetamine, cocaine and 3,4 methylenedioxyamphetamine.
  4. [8]
    On 9 October 2019, the applicant pleaded guilty to trafficking in dangerous drugs but not guilty to trafficking whilst a participant in a criminal organisation.  The applicant also pleaded guilty to Counts 2, 3, 4 and 9.
  5. [9]
    On 10 October 2019, a second indictment was presented against the applicant, alleging a further and separate count of trafficking in a dangerous drug.  The trafficking period was between 22 March 2015 and 25 November 2017.  The dangerous drug was testosterone.
  6. [10]
    On 6 February 2020, following a ruling that the applicant could not be convicted of trafficking whilst a participant in a criminal organisation, the applicant again pleaded guilty to trafficking in dangerous drugs, which plea was accepted by the Crown in discharge of Count 1.
  7. [11]
    On 12 February 2020, the applicant was convicted and sentenced to ten years’ imprisonment for Count 1.  Lesser concurrent terms of imprisonment were imposed in respect of Counts 3 and 4 and the count of trafficking in dangerous drugs on the separate indictment.  A sentence of six months’ imprisonment was imposed in respect of Count 9, to be served cumulatively upon the other sentences.
  8. [12]
    A consequence of the imposition of a sentence of ten years’ imprisonment on Count 1 was a declaration that the applicant had been convicted of a serious violent offence.  The applicant was required to serve 80 per cent of that sentence prior to being eligible for parole.

Sentence hearing

  1. [13]
    The applicant’s sentence was the subject of a two day hearing.
  2. [14]
    There was no agreed statement of facts tendered during sentence hearing.  Oral submissions were made by the Crown prosecutor and defence counsel regarding the factual basis for sentence.  Exhibits were tendered in the course of those submissions, including transcripts of surveillance intercepts and bank records.
  3. [15]
    The submissions of defence counsel put in issue the circumstances of the applicant’s involvement in the trafficking of cocaine, including the length of his involvement, and quantity of cocaine, having regard to his own personal use of cocaine.
  4. [16]
    Resolution of those matters arose in the context of a Crown submission that the nature of the trafficking operation and the circumstances of the applicant’s involvement in it warranted a sentence of imprisonment of at least ten years, thereby automatically attracting a serious violent offence declaration, necessitating serving 80 per cent of that sentence before eligibility for parole.  Defence counsel submitted that resolution of those factors supported the imposition of a sentence of less than ten years with no consequent serious violent offence declaration.

Sentencing remarks

  1. [17]
    The sentencing Judge accepted the applicant had entered timely pleas of guilty, which ought to be taken into account in his favour but did not accept the applicant had exhibited remorse material to penalty, the applicant having “offended in such a considered way for such a very long time”.[1]  The sentencing Judge also took into account, in the applicant’s favour, that he had no material criminal history.
  2. [18]
    The sentencing Judge recorded a number of personal issues, including a marriage break down and a wrongful dismissal from employment, which had led to depression, and an escalation in recreational drug use which left the applicant more vulnerable to erroneous judgment.  However, the sentencing Judge did not accept that such prolonged, well-considered offending constituted a mere lapse in judgment.
  3. [19]
    The sentencing Judge noted that the applicant was in his late 20s during the trafficking period and that there were signs of emotional immaturity.  The sentencing Judge accepted the applicant had undertaken positive rehabilitative programs with a number of negative drug tests supporting his cessation of drug use and an acknowledgment of responsibility for his offending behaviour.  That progress reduced the relevance of personal deterrence.
  4. [20]
    The sentencing Judge accepted that the applicant had graduated from personal use of cocaine to selling cocaine to supplement his use, before escalating into the trafficking business.  Whilst the sentencing Judge accepted the applicant developed a usage of cocaine in increasingly higher amounts, the applicant had not presented as a particularly drug-addled person in the intercepted conversations and had been able to cease drug use “cold turkey” after his arrest.
  5. [21]
    Against that background, the sentencing Judge was prepared to sentence the applicant “on the basis you are often using substantial quantities of cocaine, and quite possibly as much as a gram on some days”[2] but did not consider that drug use mitigates the applicant’s culpability for trafficking, finding the applicant’s trafficking “is not a case of a drug addled person trafficking purely to feed their own habit.  Your trafficking was a business exercise, a calculated commercial exercise. a happy side effect of it was the ready availability of the drug you happened to like so much”.[3]  The sentencing Judge found that a substantial majority of the cocaine supplied to the applicant was on-supplied by the applicant to his customers.
  6. [22]
    After observing that reliable estimates of drugs and monetary values could not be made, the sentencing Judge found that a reliable impression of the level of the applicant’s criminality in the drug trafficking operation was that the applicant became a wholesale trafficker, most predominantly, of cocaine.  The separate trafficking of testosterone involved street level trafficking.  While that separate trafficking ought to attract a concurrent sentence, it was appropriate, in considering the applicant’s overall criminality, to bear in mind this lesser trafficking in arriving at an appropriate head sentence for the more serious trafficking count.
  7. [23]
    In respect of that more serious trafficking count, the sentencing Judge acknowledged that the key issue was whether the head sentence would reduce below 10 years, having regard to the consequence of an automatic serious violence offender declaration.  The sentencing Judge observed that the criminality involved in that trafficking, whilst concerning three drugs, overwhelmingly involved trafficking in cocaine, with MDA pills from time to time and on one occasion “crystal meth”.
  8. [24]
    The sentencing Judge found that the applicant was purchasing drugs, which were initially conveyed by post and later by courier from Sydney.  The sentencing Judge noted that the shift to a courier occurred after some items were not received by post, the authorities having intercepted them on 30 May 2017.  A manager of the courier at Cairns was recruited by the applicant’s supplier and paid per shipment to oversee its delivery.  That manager, on occasions, would deliver the packages himself, including to the applicant.  The sentencing Judge inferred that the applicant was aware of that courier person in Cairns and that he would have appreciated his supplier was one of a group engaging in serious criminal activity of carrying on the business of trafficking dangerous drugs from Sydney into Cairns.
  9. [25]
    The sentencing Judge noted that three mobile telephones were purchased, one of which was subsequently seized from the applicant’s supplier and another from the applicant.  That latter phone had a particular application allowing for confidential communications contained in the phone to be remotely wiped.  That phone was remotely wiped by someone after its seizure, although not wiped so quickly as to make irrelevant the applicant’s failure to provide police access to that phone.
  10. [26]
    The sentencing Judge noted that the prosecution submitted that the applicant’s close proximity to the criminal organisation was an aggravating feature but was “unmoved by the fact that your supplier was a criminal organisation, as being in any sense an aggravating factor of your trafficking”.[4] The aggravating feature was that the applicant was a wholesale buyer and on-seller of large quantities of drugs trafficked by that group into Cairns from Sydney.
  11. [27]
    The sentencing Judge found a submission by the applicant’s counsel, that the applicant did not graduate to mid-level wholesale activity until around the last six months of the trafficking period, inherently implausible.  A screenshot of another person’s phone of 21 October 2016 revealed an order by the applicant for an ounce of cocaine.  It was unlikely such a volume would have been the applicant’s first foray into acquiring a large amount.
  12. [28]
    The sentencing Judge found that the evidence gathered against the applicant by listening devices simply provided more detailed and damning evidence of his wholesale trafficking in the latter stages of the trafficking business.  There was evidence that an ounce a month was shipped to one of the applicant’s addresses for eight months straight from October 2016.  There was also evidence the applicant at least used to double the quantity, cutting it down one to one and sometimes even more, thereby increasing the saleable volume.
  13. [29]
    The sentencing Judge was prepared to take a cautious approach, inferring that, in the early stages of the long trafficking period, the applicant was only selling in volumes of drugs fluctuating between street level and low-level wholesale and gradually moved to a customer base of predominantly dealers over time.  The sentencing Judge was not prepared to accept the applicant only moved to so-called mid-level wholesale trafficking by the last six months (approximately), finding that the applicant had a well established customer base of dealers by mid-2017, from which it followed that the applicant had been wholesaling for a significant period before that time.
  14. [30]
    The sentencing Judge found, whilst it was not possible to be more precise in the timeframe categorisation, three points warranted emphasis.  First, the applicant trafficked for a long time.  Second, it was conceded he trafficked for approximately a six month period of wholesale trafficking.  Third, the period of drug trafficking is important but not of itself a determinative factor in fixing sentence.
  15. [31]
    The sentencing Judge found that considerable insight into the level of the applicant’s criminality was gleaned from the listening device recordings.  They informed, not only to some extent as to his criminality in a quantitative sense for at least some prices and weights, but were of even more assistance in a qualitative sense showing the vigour with which the applicant had pursued his business.
  16. [32]
    The sentencing Judge found it was a reasonable inference to draw that what was captured by the listening devices was indicative of his level of offending, rather than being the only offending.  The listening device material revealed the applicant was operating “quite cynically, happily encouraging, indeed, even educating others to actively sell the drugs that they were buying from [the applicant]”.[5] While some of the recordings showed the applicant was using cocaine, they also informed the view that the applicant was selling very substantial quantities to others.
  17. [33]
    After referring to multiple examples of the recordings revealing the movement of large quantities of drugs and the existence of a very active business, the sentencing Judge observed that, on the date the applicant was intercepted by police, he had three phones and was in possession of 8.744 grams of pure cocaine, and some personal use quantities of steroidal drugs.  A search of the applicant’s supplier’s property revealed a tick sheet record suggesting that at a point in time the applicant owed the supplier a debt of $23,900.  It could be readily inferred the applicant had previously paid that supplier at least many tens of thousands of dollars.  Whilst a financial analysis of the applicant’s bank account revealed only $43,880 in unexplained sources, the sentencing Judge found it could be readily inferred the applicant had profited in a considerably higher figure.  The sentencing Judge accepted the applicant was not found to have hoarded or invested his profit, instead living “a flash lifestyle”.[6]
  18. [34]
    The sentencing Judge found the applicant was, by that stage, “well and truly committed to conduct of your business selling, obviously, wholesale quantities of drugs, principally cocaine, and to a lesser extent MDA, to multiple customers for them to, in turn, deal in”.[7] The sentencing Judge conservatively inferred the applicant would have sold multiple hundreds of thousands of dollars-worth of dangerous drugs to drug dealers in Cairns, himself profiting to the tune of many tens of thousands of dollars.  The applicant’s conduct involved “sustained; enthusiastic criminal behaviour, calculated at making … a lot of money, and doubtless succeeding in doing so …”.[8]
  19. [35]
    The sentencing Judge found the applicant’s conduct involved playing a pivotal role in bringing dangerous drugs into the Cairns community, aiding the applicant’s suppliers and dealer customers to profit, and was conduct by which the applicant profited.  As such, it was conduct calling for very substantial punishment.
  20. [36]
    After referring to a number of comparable authorities, the sentencing Judge found that regard to those cases solely, by comparison to known quantitative indicators, would suggest a sentence closer to that contended for by the applicant’s counsel, but found that the police investigation had unearthed “qualitative indicators that eloquently demonstrate a level of criminality higher than would be apparent merely by reference to the limited information available about known volumes and dollars”.[9]
  21. [37]
    The sentencing Judge further observed, whilst the applicant’s criminality did not support a head sentence as high as 11 years, that criminality did not warrant a sentence as low as nine or nine and a half years, even allowing for a material discount for matters in mitigation.  The sentencing Judge said sight “must not be lost of the gravamen of your prolonged and cynical offending and the importance of general deterrence in a case like this” and imposed a head sentence of 10 years’ imprisonment.  It was declared that the conviction for that offence of trafficking was a conviction of a serious violent offence.

Applicant’s submissions

  1. [38]
    The applicant submits that the sentencing Judge erred in failing to find the qualitative measures or indicators which the sentencing Judge said allowed an inference of criminality warranting a sentence of 10 years’ imprisonment.  Importantly, the sentencing Judge did not identify the standard applied in determining whether those measures allowed the drawing of a reasonable inference of the level of criminality sufficient to support a sentence of ten years or more imprisonment.
  2. [39]
    The applicant submits that, in circumstances where other factors made a sentence of nine to nine and a half years’ imprisonment rationally open, such as the applicant being a man in his late 20s; with no relevant prior convictions; and an acknowledged heavy user of cocaine, with excellent rehabilitation evidence, including being effectively drug free, with express regret and timely pleas of guilty; the failure to have reference to standards of satisfaction resulted in the sentencing discretion miscarrying, with the consequence that the applicant is required to automatically serve 80 per cent of the sentence.

Respondent’s submissions

  1. [40]
    The respondent submits there was no error in the exercise of the sentencing discretion.  The sentencing Judge articulated his conclusions as to the length and nature of the applicant’s involvement in trafficking in dangerous drugs, and the basis for concluding the applicant’s criminality warranting a sentence of 10 years’ imprisonment.
  2. [41]
    The respondent submits relevant features of the applicant’s trafficking in cocaine included the use of various addresses and encrypted telephones to conduct his trafficking business; steps taken to avoid detection; the regularity with which he was receiving ounce supplies of cocaine monthly; the amount of money received from particular customers over many months; the fact that the applicant doubled the amount of cocaine supplied to him by cutting it down; the fact that, whilst the applicant was a user of the drug himself, a substantial majority of the cocaine supplied to him was on-supplied to his customers; and the fact that the applicant was making a profit, spending it on a flashy lifestyle.

Consideration

  1. [42]
    By his plea of guilty to Count 1, the applicant admitted carrying on the business of unlawfully trafficking in three dangerous drugs between 1 March 2016 and 3 January 2018.  However, an assessment of the gravamen of his criminality required a determination at sentence of the nature and extent of the applicant’s trafficking.
  2. [43]
    A central issue in dispute in that determination was the nature and extent of the applicant’s trafficking in the dangerous drug, cocaine.  The Crown contention was that the trafficking in that drug progressed significantly over the course of the trafficking period, with large quantities of the drug being on-sold by the applicant to his customers, many of whom supplied to their own customers, at wholesale level for much of that period.
  3. [44]
    The defence contention was that that level of trafficking was only undertaken by the applicant in the last six months of the trafficking period and that the quantities of cocaine supplied to the applicant over the entire trafficking period included amounts used by the applicant for his own personal habit.  It was contended those amounts “would be at least 25 per cent”.[10]
  4. [45]
    As the nature and extent of the applicant’s trafficking in the dangerous drug cocaine was in dispute, it was necessary for the sentencing Judge to make findings of fact as to those issues.  The standard of proof appropriate to the determination of those facts was proof on the balance of probabilities.[11]
  5. [46]
    In determining whether the standard of proof was met, it was relevant for the sentencing Judge to have regard to the seriousness of the making of such findings, where a sentence in excess of 10 years was being contended for by the Crown on a consideration of the circumstances and appropriate yardsticks.
  6. [47]
    The sentencing Judge did undertake a process of considering the nature and extent of the applicant’s trafficking in the dangerous drug, cocaine.  However, the sentencing remarks do not record the standard of proof applied to that process.  Further, the findings were inferences within the sentencing remarks without recording any consideration of available competing inferences favourable to the applicant.
  7. [48]
    The framing of the sentencing remarks in this way was understandable, having regard to the way in which the sentencing hearing progressed without any agreed statement of facts and the concession by the parties that any findings were to be drawn from available inferences.
  8. [49]
    However, having regard to the significance of the findings to be made, in the context of a sentence which may result in an automatic declaration that the applicant has been convicted of a serious violent offence, necessitating that the applicant serve 80 per cent of that sentence, a proper exercise of the sentencing discretion did require a recording of both the applicable standard and, more importantly, a resolution of competing inferences.  To that extent, the sentencing remarks disclose an error warranting a re-exercise of the sentencing discretion.
  9. [50]
    In undertaking a re-exercise of that sentencing discretion, it is necessary to have regard to the evidence at the sentencing hearing.  That evidence included the supply to the applicant of an ounce of cocaine per month, over eight months from October 2016 and evidence that in September 2017, the applicant had available four and a half ounces of cocaine, three ounces of which had already been on-sold, with the applicant keeping one ounce for himself and offering the remaining half an ounce to one of his customers.
  10. [51]
    Significantly, in that conversation, the applicant advised his customer that he was cutting the product “one to one” and that was “how I make my money”.[12] The applicant also referred to wanting to keep all of the product for himself but said “I want to make money so”.[13] Six days later, the applicant was recorded as expressing surprise at how quickly he had received another delivery, ordered on 18 September 2017 from Sydney and delivered into Cairns on 21 September 2017.[14]
  11. [52]
    That the applicant was receiving, by this stage, substantial quantities of cocaine which was being on-sold on a wholesale basis was also supported by a conversation on 23 October 2017 with Todd Whelan, a customer the applicant described as “the one who gets rid of it.  The best.”[15] During that conversation, there was a reference to supplying an ounce to Whelan which was “only double what you have been getting”.[16] Later, recorded conversations with Whelan referred to meeting “maybe Saturday, then Tuesday like we always do” consistent with regular supplies of cocaine to Whelan knowing that Whelan was on-supplying to others.[17]
  12. [53]
    It is also necessary to have regard to the facts not in dispute at that sentencing hearing.  Those facts included that the applicant had trafficked in dangerous drugs for a period of one year and ten months; that the trafficking involved three different dangerous drugs, although the primary drug was cocaine; and that the applicant’s trafficking in cocaine involved supplying cocaine sourced from Sydney to customers in Cairns including, over time, customers who on-sold to their own customers.
  13. [54]
    Other facts not in dispute were that the applicant also, separately, trafficked in steroids, namely testosterone, for a period of two years and eight months, with approximately one year and eight months of that period coinciding with his trafficking the subject of Count 1.
  14. [55]
    Two issues were in contention at the sentencing hearing.  First, the period during which the applicant engaged in trafficking at a wholesale level in quantities of at least an ounce a month.  Second, whether the large quantities of cocaine, the subject of the applicant’s trafficking, included a substantial component of cocaine for the applicant’s own personal use.  Defence counsel contended at least 25 per cent was kept for the applicant’s personal use.
  15. [56]
    As to the first issue, it was accepted at the sentencing hearing that the applicant had engaged in trafficking cocaine at both street level and above from at least early 2017[18] and that he had engaged in wholesale trafficking of significant volumes of cocaine from around September 2017 until the end of the trafficking period.  It was disputed the applicant had engaged in similar wholesale trafficking earlier.
  16. [57]
    The only direct evidence in respect of this issue was contained within various recorded conversations between the applicant and others, from September 2017.  Those recorded conversations included the reference to four and a half ounces in September 2017, of which three had already been sold, and the supply to one customer, Whelan, of an ounce in October 2017, being twice what he usually received, although other conversations referred to their meeting twice weekly.  Those communications are significant as Whelan was, to the applicant’s knowledge, on-supplying to his own customers.  Further, Whelan was not the applicant’s only customer.  There were a number, some also being dealers to their own customers.
  17. [58]
    There was also evidence that the applicant was receiving, over a period of approximately eight months from October 2016, deliveries of one ounce of cocaine a month.  Whilst the evidence of deliveries of one ounce of cocaine per month was only shown to have taken place over that eight month period, the later communication between the applicant and Whelan, in which the applicant referred to Whelan receiving double what he normally received, was consistent with Whelan having previously been supplied half an ounce by the applicant in the preceding period.
  18. [59]
    A consideration of that communication, in the context of the applicant having other customers, supports a conclusion that the only reasonable rational inference open on a consideration of the evidence as a whole, was that the applicant was regularly supplying at least half an ounce per week to Whelan prior to October 2017, knowing that Whelan was on-supplying that drug to his own customers.  There was also evidence of an offer to supply an ounce of cocaine to another customer, Chloe Bridgeland, in July 2017.
  19. [60]
    Such a conclusion supports a finding that the applicant was engaging in trafficking of substantial quantities of cocaine on a wholesale basis in the last six months of that trafficking period.  That, in itself, is significant trafficking on a wholesale basis.
  20. [61]
    A consideration of the evidence as a whole supports a finding, on the balance of probabilities, that the applicant, whilst engaging in street level trafficking in the 2016 part of the trafficking period, engaged in trafficking on a street level and wholesale trafficking from early 2017 before engaging predominantly in wholesale basis from mid-2017, with the amounts supplied on that wholesale basis increasing to ounce supplies for at least the last six months of that trafficking period.
  21. [62]
    As to the second issue, there was evidence that the applicant was a habitual user of the drug cocaine.  Having regard to what was said to be a daily use of a gram, it is to be accepted the applicant was a user of a not insignificant amount of the drug obtained by him throughout the trafficking period.  However, it was not contended at the sentencing hearing that the applicant’s use involved significantly more than 25 per cent of the drug obtained by him from his suppliers.
  22. [63]
    There was no rational basis to contend otherwise.  The applicant, during the trafficking period, successfully undertook two jobs and developed a sophisticated drug trafficking operation of his own, not only in respect of the drugs the subject of Count 1, but also in respect of a separate trafficking business in testosterone.
  23. [64]
    Further, there was evidence the applicant favoured making money from the supply of cocaine to others rather than feed his own habit.  In one of the recorded conversations the applicant observed that he would like to have kept the cocaine for himself but that he liked the money.  That is consistent with the applicant, when faced with the choice between his own use and the supply to others for profit, choosing supply for profit.
  24. [65]
    A consideration of the evidence, as a whole, supports a finding, on the balance of probabilities that, notwithstanding the applicant’s personal use of cocaine throughout that period, a substantial majority of the cocaine obtained by the applicant was on-sold to his customers for distribution throughout Cairns at significant profit.  A conclusion to the contrary is not consistent with the applicant’s actions and own statements to others.
  25. [66]
    Having regard to these findings, the applicant is properly to be sentenced on the basis that he engaged in a significant drug trafficking operation for a 22 month period, with half of that period being predominantly street level trafficking in the drug cocaine, and the balance involving wholesale trafficking in cocaine in increasing amounts.  Those amounts included supplies of at least half an ounce, and later one ounce, to at least one individual customer, knowing that that customer was on-selling to others.  The applicant undertook that drug trafficking operation for profit, knowing that the drugs were being supplied from Sydney and knowing that his drug trafficking operation was distributing increasing volumes of cocaine throughout the community of Cairns.
  26. [67]
    Such drug trafficking is serious, warranting a sentence where general deterrence is paramount.  Such serious criminality also warrants a sentence evidencing denunciation for such conduct.  When regard is also had to the fact that the applicant engaged in a separate trafficking operation involving testosterone, the applicant’s overall criminality could properly be reflected in a sentence in excess of 10 years’ imprisonment.
  27. [68]
    The applicant’s lack of relevant criminal history, the cooperation shown by his pleas of guilty and his personal circumstances, including being drug free for an extended period, support a reduction in that sentence to ten years.  However, those mitigating factors do not warrant the imposition of a sentence of less than ten years’ imprisonment.  Such a sentence would not properly reflect the applicant’s overall criminality.
  28. [69]
    Such a sentence is consistent with the relevant yardsticks.[19] A consideration of those authorities supports a conclusion that an offender who engages in wholesale drug trafficking of the magnitude engaged in by the applicant, even for a period approaching six months, warrants a sentence of imprisonment in the order of 10 years.
  29. [70]
    Such a conclusion is also consistent with the sentences imposed on others linked to the distribution of drugs sourced by the applicant’s supplier.  Whilst Wilson engaged in the supply of greater quantities of methylamphetamine, the applicant’s offending involved the methodical distribution of cocaine at wholesale level over an extended period for substantial profit, a business pursued using an encrypted phone, albeit supplied by others, and a business developed in increasing quantities and continued notwithstanding interception by the authorities late in the trafficking period.
  30. [71]
    As the re-exercise of the sentencing discretion results in a sentence of the same magnitude as imposed at first instance, the appeal against sentence should be dismissed.

Orders

  1. [72]
    I would order:
  1. (1)
    Leave to appeal be granted.
  2. (2)
    The appeal against sentence be dismissed.

Footnotes

[1]  AB182/33-34.

[2]  AB184/11-12.

[3]  AB184/13-17.

[4]  AB187/17.

[5]  AB188/34.

[6]  AB192/5.

[7]  AB192/8-10.

[8]  AB192/13-14.

[9]  AB192/33.

[10]  AB39/10.

[11]  Section 132C of the Evidence Act.

[12]  AB340.

[13]  AB341.

[14]  AB80/40.

[15]  AB156/5.

[16]  AB36/5.

[17]  AB91/15.

[18]  AB40/1.

[19] R v Johnson [2014] QCA 79; R v Carroll [2018] QCA 355.

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Editorial Notes

  • Published Case Name:

    R v Hilton

  • Shortened Case Name:

    R v Hilton

  • MNC:

    [2021] QCA 286

  • Court:

    QCA

  • Judge(s):

    McMurdo JA, Daubney J, Boddice J

  • Date:

    17 Dec 2021

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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