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R v McLean[2021] QCA 70

SUPREME COURT OF QUEENSLAND

CITATION:

R v McLean [2021] QCA 70

PARTIES:

R

v

McLEAN, Melissa Jane

(applicant)

FILE NO/S:

CA No 166 of 2020

SC No 16 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Mackay – Date of Sentence: 22 July 2020 (Crow J)

DELIVERED ON:

13 April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

26 February 2021

JUDGES:

Sofronoff P and McMurdo and Mullins JJA

ORDERS:

  1. Leave to appeal granted.
  2. Appeal allowed.
  3. The sentence imposed for count 2 is set aside.
  4. The parole eligibility date is set aside.
  5. For count 2, the applicant is sentenced to imprisonment for a term of four years to be suspended after the applicant has served 12 months, such suspension to be operational for four years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on count 2 of possessing and trafficking a dangerous drug (methylamphetamine) – where the applicant was given a head sentence on count 2 to five years imprisonment to reflect the global criminality of her offending – where the applicant had no prior criminal history before the offending – where the applicant was 23 years old at the time of offending, came from a disadvantaged background and had a child after her arrest – whether the sentencing judge was not assisted with proper comparable decisions which did not take into account the applicant’s personal circumstances which resulted in a head sentence that was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s9(3)

R v Blumke [2015] QCA 264, considered

R v Mikula [2015] QCA 102, considered

COUNSEL:

J R Jones for the applicant

S J Hedge for the respondent

SOLICITORS:

Potts Lawyers for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  The applicant is a young woman who is about to turn 26 years old.  She was raised by her mother, who was a violent woman and a heavy user of alcohol and other drugs.  She met her father for the first time when she was 16 years old and the meeting did not have a happy outcome.  He too was a drunk.  The applicant left home at about that time and began to fend for herself.  She had finished school after completing grade 10.  She managed to get a job at a petrol station and she took up with an older man.  She then got a job at one of the mines in central Queensland.  After that job she began to look after her ailing paternal grandmother.  Her father took the grandmother’s pension money for himself but, nevertheless, the applicant managed to support her grandmother.
  2. [2]
    This was a devastating period for the applicant.  Her sister died from a drug overdose.  Shortly after her death the applicant’s brother was seriously injured in a car accident and was confined to a wheelchair.  Her cousin tried to kill herself.  It was the applicant who found her and managed to stop the suicide.  Her paternal grandmother then died from cancer.
  3. [3]
    During this awful period she met a man named Walker.  He was older than her and had a criminal history.  He introduced her to methylamphetamine.  Walker was a drug dealer and the applicant began to sell drugs supplied by him.
  4. [4]
    On 20 November 2018 police stopped a car that the applicant was driving.  Their search revealed that she was in possession of a set of scales and a quantity of methylamphetamine.  This was count 1 on the indictment.
  5. [5]
    An investigation by police into Walker’s activities revealed the applicant’s offences.  Walker was supplying her with methylamphetamine which she on-sold to her own customers.  She trafficked between 1 December 2018 and 16 January 2019.  This was count 2 on the indictment.  Between 31 December 2018 and 5 January 2019 she sold 50.75 grams of gross substance containing the drug and received at least $10,000.  The intercepted phone calls showed that the applicant had about 10 regular customers to whom she suppled “street level quantities” of the drug and there were three customers who were themselves suppliers at street level.  Sometimes she made these sales on credit.  Walker used to complain to her when she did not have any money to give him and he pressured her to get him the money that her customers owed her.  On occasion the applicant complained to Walker that she was making no profit.  Sometimes, when she was unable to sell the drugs Walker had given her, he would take them back and sell them himself.
  6. [6]
    The applicant helped Walker in other ways.  On 2 December 2018 police stopped a car which Walker was driving in which the applicant was a passenger.  Police found just over 50 grams of pure methylamphetamine within 70 grams of gross substance in her possession, which was count 3, as well as $1,050 in cash, which was count 4.
  7. [7]
    Crow J sentenced the applicant to six months imprisonment on count 1, five years imprisonment on count 2 and convicted the applicant on counts 3 and 4 but imposed no further punishment.  The two sentences of imprisonment were to be served concurrently.  Parole eligibility was fixed at 10 December 2021.
  8. [8]
    Walker was not just a drug dealer.  He was abusive to the applicant physically.  He hit her and, on one occasion, poured petrol through her bedroom window and threatened to set it alight.  He was abusive in other ways as well.  The following is an extract from a phone call between Walker and the applicant that was overheard by police:

“F1 Hello

M1 Hey

F1 Oh what the f’ what what’s wrong with ya?

-Overtalk-

M1 What?   I’ve I tell you don’t hang up on me cunt ‘cause I’ll come down there and fuckin’ go off man alright?

F1 Oh well you’re comin’ down here anyway aren’t you?

M1 Yeah

F1  Alright cool well I’m gonna go pull my shit together bro

M1 Yeah good

F1 Alright see ya

M1 See ya lose the attitude when I get there cunt.”

  1. [9]
    After he was arrested, Walker sent the applicant a letter.  She had been released on bail.  In his letter he said:

“I’m confused why you went for bail…without asking me.  Not a smart move.  You didn’t have my permission to do that!  Remember who’s show this is & who you work for!  The aim isn’t to get out as quick as possible!  The aim is to consult with me and do what I say is best for the group of us ok!  This a lot [sic] bigger than a single person n you don’t think about yourself n put yourself first ok!  Everyone has to ask me for permission to go for bail!  I take it personally.  Very fuckin personally!

Your [sic] coming back to jail you do realise that.  You were the reason we all got caught!  When you got done in the hire car n they took your phone.  I’ve worked it all out!  See thats why Im at the top because I got the fuckin brains!!”

  1. [10]
    At the time of her arrest the applicant was pregnant to Walker.  In his letter he gave her some instructions about the baby that would be born soon:

“You were in for a month n now your out?  Your definitely going back for years so you should of asked me what to do!  Now you will have to start again!  Plus leave bub in the free world!  To who?  Your family?  Fuck that I want my fam to have him.  At least it’s a propper [sic] home!  This is my decision not yours got it!”

  1. [11]
    The baby has since been born.
  2. [12]
    The applicant’s sister gave the following evidence in a letter addressed to the court:

“While in prison I talked to her as often as I could and she has realised what had been going on and for the first time in a long time her eyes where [sic] open and she knew that she had to better herself and be the best mum she could for her expecting baby.

When Melissa was released on bail she did all she could to better herself and she has gone to every sign in she has not had any drug or alcohol substance in her system and her entire world was now about her unborn son.

I know Melissa is more than sorry and she would do anything to take back what has happened and all she wants now is to be with her son and be the best person she can be, not only for her son [redacted] but also for herself.  Melissa talks about studing [sic] and finding some work.  Melissa has always been a fantastic worker and I can guarantee that any of her past employees will vouch for her work standards and ethis [sic].  Melissa is reliable honest and hard working.

I know Melissa has and will continue to see councillors [sic] and adher [sic] to anything you deem necessary to keep her from going back to prison and to keep her and her son together.

Melissa is very loved and has all her family behind her and I know that she will never be back in this position again …”

  1. [13]
    This record of the applicant’s personal life reveals a young woman who, despite the complete lack of an upbringing that a child needs in order to become a decent human being, managed during her formative teen years to strive to live a productive life.  That her efforts miscarried so badly during her period with Walker does not evidence total failure because the future remains to be seen.  The applicant’s past efforts when she was a very young woman, also seen in the light of her sister’s optimism, suggests that the applicant’s future with her child can be a good one.
  2. [14]
    This is of significance for two reasons.  First, it is the law that offenders who are young,[1] that is to say who have just reached adulthood, are not to be equated with fully mature offenders.  In general, youth is a powerful mitigating factor.  As the learned authors of Sentencing in Australia[2] observe, such offenders constitute a class that is regarded as more likely to be reclaimed by the community.  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.[3]
  3. [15]
    The second reason is that s 9(2)(a) of the Penalties and Sentences Act 1992 requires a sentencing court to have regard to the principles that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable.
  4. [16]
    These principles have less weight when circumstances require it, such as when an offence involves violence.[4]  In such cases, under the common law, factors such as general deterrence, denunciation and the need to protect the community achieve greater significance than youth.  In Queensland, in such cases s 9(3) displaces the operation of s 9(2)(a) and substitutes the principles set out in it.
  5. [17]
    There was no violence involved in this case but drug trafficking is a very serious offence.  It is also a prevalent offence as the frequent cases that come before this court show.  It follows that general deterrence is a significant factor in the case that must be given effect.  However, the mitigating effect of the applicant’s relative youth is not displaced.  She was 23 when she committed these offences with no prior criminal history.
  6. [18]
    In Blumke[5] an offender guilty of trafficking[6] methylamphetamine over a 10 week period was sentenced to imprisonment for four and a half years with the sentence to be suspended after 12 months.  The offender was 27 years old at the date of the offence.  The sentencing judge took into account that the offender “had turned his life around” since his arrest and removed himself from the influence of the groups in which his offending had taken place.  The Court of Appeal concluded that the sentence was not excessive.
  7. [19]
    In Mikula[7] the offender was guilty of trafficking[8] for a nine-month period.  He was sentenced to four years imprisonment to be suspended after 16 months.  The offender was 22 and 23 at the time of the offence.  He committed the offence at a time when he was in a “dysfunctional and destructive relationship which led him to act outside his normal behaviours and values”.  Recidivism was unlikely.  He had made “commendable efforts” at rehabilitation.  McMurdo P observed that the range in this case was a head sentence of between three and four years with parole eligibility at or slightly earlier than one third.  Her Honour considered the sentence that was imposed was at the high end of the range but not excessive.[9]
  8. [20]
    As a group, these cases are illustrations of the principles referred to earlier, namely the strong mitigating effect of youth with its promise of rehabilitation, as well as s 9(2)(a) of the Act.
  9. [21]
    In my respectful opinion, in this case the prosecution and defence led the learned sentencing judge into error by failing to refer to these principles and by referring his Honour, instead, to three cases in which the only comparable feature was the age of the offender.  Baradel[10] was a case in which the offender was 22 years old when he offended.  But the offending was of a calculated and cynical kind.  The offender and his accomplice produced methylamphetamine at business premises operated by a company of which they were both directors.  They also sourced the drug from other suppliers.  The applicant had large stocks of precursor drugs and production equipment in his possession partly in order to sell these things to others to use in drug manufacture.  The applicant was an addict but the aim of his business was profit.  The applicant committed the offence while on a good behaviour bond.  These circumstances overshadowed the mitigating effect of the offender’s youth.[11]
  10. [22]
    In Barton[12] the applicant pleaded guilty to trafficking[13] and was sentenced to seven years’ imprisonment with parole eligibility after two years and three months.  The applicant was 24 at the time of the offence.  The sentencing judge was sceptical of the submission that the applicant was an addict but acted upon that footing.  However, his Honour sentenced the applicant on the basis that she was motivated to commit the offence “by a desire for profit”.  The Court of Appeal found that the sentence failed to take into account the offender’s “impressive and apparently successful efforts at rehabilitation since the birth of her daughter” and reduced the period until she became eligible for parole to a period of 18 months.  This case is an example in which the profit motivation overwhelmed the mitigating effect of the offender’s youth which nevertheless reinforced the earliest possible release date in obedience to s 9(2)(a)(ii) of the Act.
  11. [23]
    The third case cited to his Honour was Saggers.[14]  The offender was a trafficker whose business was “at a distribution level between that of a wholesaler and a street-level dealer” and her 25 customers were all themselves suppliers.  She herself sourced her drugs from numerous suppliers.  She used multiple phones and SIM cards and used a TAB gambling account to accept payments.  She used hire cars to deliver drugs.  Her pleas of guilty were late.  She was 25 years old at the time of offending and, like the applicant in this case, had lived through difficult circumstances. The Court of Appeal declined to interfere with a sentence of five years to be suspended after 12 months.  The case illustrates the need for an effective deterrent element to a sentence in such a case but, also, the requirement to take into account a young offender’s subjective circumstances, which was reflected in the period at which the imprisonment was suspended.
  12. [24]
    In my respectful opinion, reliance upon the cases put forward by both counsel led to a head sentence that was too high and to an inadequate amelioration of it to take into account the applicant’s personal circumstances.
  13. [25]
    The applicant’s offending was undoubtedly largely the product of Walker’s emotional and physical pressure to exploit a susceptible young woman.  The applicant’s behaviour before she encountered Walker and after she was freed of his influence demonstrate strongly her inherent good character and the real likelihood that she will recover from this dangerous and unhappy stage in her life.  While a period of actual incarceration in her case cannot be challenged as unjustified by the offences to which she had pleaded guilty, its exigency lies only in general deterrence and denunciation rather than personal deterrence.  It follows that the applicant’s mitigating circumstances justify an early release date.
  14. [26]
    Nor, in my respectful opinion, do her circumstances demand the supervision offered by parole.  She has, seemingly successfully, taken her own steps towards a normal life.  She has the impetus of motherhood to take her in the same direction.  She has the promise of support from her sister.  Her past ability to win the confidence of employers, even at a very young age, shows character and ability.
  15. [27]
    I would grant leave to appeal and set aside the sentence of five years imprisonment that was imposed for count 2 and set aside the order setting the parole eligibility date.  Instead, I would impose a sentence of four years imprisonment to be suspended after the applicant has served 12 months, such suspension to be operational for four years.
  16. [28]
    McMURDO JA:  I agree with Sofronoff P.
  17. [29]
    MULLINS JA:  I agree with Sofronoff P.

Footnotes

[1]  Child offenders are a separate category for which the legislation provides special treatment.

[2] Sentencing in Australia, Bagaric, Alexander and Edney, 6th ed, 2018, Thomson Reuters, at 500.17800, page 418.

[3] R v Azzopardi (2011) 35 VR 43 at [30]-[44].

[4]  see eg R v Hakeem [2007] VSC 5.

[5]  [2015] QCA 264.

[6]  As well as other associated offences.

[7]  [2015] QCA 102.

[8]  And the other usual offences.

[9]  The applicant also cited two other cases that are relevant, but which need not be considered in detail: Spark [2018] QCA 231 (three and a half years suspended after six months) and Trajkov [2017] QCA 292 (three years imprisonment suspended after 10 months).

[10]  [2016] QCA 114.

[11] Cf. Tran (2002) 4 VR 457 at 462 per Callaway JA.

[12]  [2006] QCA 367.

[13]  For three months, a quantity of 26.6 grams and some precursor chemicals.

[14]  [2016] QCA 344.

Close

Editorial Notes

  • Published Case Name:

    R v McLean

  • Shortened Case Name:

    R v McLean

  • MNC:

    [2021] QCA 70

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, McMurdo JA, Mullins JA

  • Date:

    13 Apr 2021

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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