R v Malone[2021] QCA 76

[2021] QCA 76

BRISBANE

FRIDAY, 16 APRIL 2021

JUDGMENT

McMURDO JA:  The applicant was convicted on her plea of guilty of an offence of trafficking in methylamphetamine over a period of 15 months.  She was sentenced to a term of 12 years imprisonment.  At that time, she had served some 617 days in custody which was declared as time served.  There was the necessary declaration that she had been convicted of a serious violent offence.  By this offence, she had breached a suspended sentence of four months, which was then ordered to be served concurrently with the 12 year term.

She applies for leave to appeal against her sentence on the ground that it is manifestly excessive.  By her counsel’s submissions, it is a contended that a sentence of nine and a half years with no declaration of a serious violent offence and no parole eligibility date being set would be appropriate, although the argument concedes that a higher sentence than that was open.

The applicant was aged 44 and 45 years in the period of her offending, and she was 47 when sentenced.  She had a lengthy criminal history for drug offences and offences of dishonesty.  On reading her criminal history, the sentencing judge remarked that the applicant was a recidivist thief and drug offender.

The trafficking involved large quantities of methylamphetamine in which her trafficking was sometimes in street level amounts, but more significantly, in large amounts at a wholesale level.  At the commencement of the trafficking period, her premises were searched by police, and that search located $70,200 concealed in a wall cavity, and many thousands of dollars in other places in the premises, amounting to a total of over $80,000 in cash.  There were clip seal bags, a Cryovac machine, an electric money counter, digital scales with methylamphetamine on them, and a quantity of about 25 grams of the drug.  She lived there with her then partner, and each of them was then dealt with for possession offences.

On 23 February 2018, there was another search of her premises.  Police then found $18,000 in cash, which she claimed she had won on poker machines.  They found $1,600 in her wallet.

On the 1st of May 2018, she bought a car, paying cash of $38,000.  There was no attempt to suggest that this money came from something other than her trafficking business.

Her premises were searched again on 21 June 2018.  Police then found $35,150 in cash hidden in books, and thousands of dollars in her safe and in her wallet.  Another person present, Tracey James, claimed possession of the drugs that were then found at the premises.  After Ms James was charged, surveillance recordings detected the applicant telling someone that James falsely claimed to own the drugs and that the applicant would pay her fine.

In the last month or so of her trafficking, there was considerable evidence gathered by surveillance devices at the applicant’s house and at her business.  There was evidence that on

8 July 2018, the applicant posted $60,000 to her supplier and sent another $35,000 to the supplier two days later.  On 16 July 2018, she was shown to be collecting drugs from a post office in a package containing about a kilogram of methylamphetamine with a pure weight of 756.8 grams.

Another search was executed at her premises on 18 July 2018, where methylamphetamine and $10,000 in cash were found.

What I have said is sufficient to indicate the correctness of his Honour’s observation, which is not challenged, that the applicant was trafficking at a very significant wholesale level for a very prolonged period of time.  There was a financial analysis conducted of her affairs in the trafficking period, which showed her expenditure exceeding her income by about $300,000.

The sentencing judge gave her credit for her plea of guilty, although he said that it could not be described as a timely one.  The judge accepted that the applicant regretted what she had done, although he added that the word “remorse” might not be the right word to apply to her case, where she had so many chances over her life from the Courts but had kept on offending.  He recognised the mitigating circumstance of what he described as the applicant’s very commendable efforts at rehabilitation since she had been in custody.  The judge said this was quite compelling evidence that she had shown a responsible and wholehearted commitment to rehabilitation.

It is submitted here that whilst a significant period of imprisonment was required in her case, the sentencing range which was open to the judge was between 9.5 and 11.5 years.  The automatic declaration of a serious violent offence if the term is 10 years or more had to be moderated, it is said, by imposing a sentence towards the lower end of that range.  The judge recognised the impact of the declaration, but it is said that the sentence demonstrates that it was insufficiently moderated for that factor.

The Court has been referred to a number of cases as suggested yardsticks, of which only some need be mentioned.  In R v Tran; Ex parte Attorney-General (Qld) [2018] QCA 22, this Court resentenced a trafficker in methylamphetamine and MDMA who had trafficked over a period of five and a half months to a term of nine and a half years with no early parole eligibility date.  The case was less serious than the present one.

In R v Rodd; Ex parte Attorney-General (Qld) [2008] QCA 341, a trafficker in methylamphetamine, who had also produced the drug, was sentenced to 10 years imprisonment with the necessary SVO declaration.  The Court remarked that with the applicant’s threats of violence, a sentence of 12 to 13 years would have been appropriate, but the Attorney-General did not seek a higher sentence than 10 years.  That trafficking took place over more than 26 months, with unexplained income of between $100,000 and $236,000.

In R v Kalaja [2012] QCA 329, a sentence of 14 years imprisonment for trafficking in cannabis over a period of 35 months with at least $600,000 in unsourced income was not disturbed.

In R v Davenport [2018] QCA 330, a trafficker in methylamphetamine and heroin over a period of six months received cumulative terms amount to a period of 11 years and nine months imprisonment.  The sentence which was challenged was one of nine years, nine months with no SVO declaration.  The sentence was not disturbed.

In R v Tran [2020] QCA 81, a case which was emphasised in the applicant’s oral argument, this Court did not disturb a sentence of 10 years for trafficking in methylamphetamine and heroine at wholesale level over a period of 18.5 months.  It does not follow, of course, that a higher sentence was not open.

A number of comparable sentences were reviewed in R v Safi [2015] QCA 13 where it was said, at [18], that the authorities reveal that:

“…for substantial trafficking in a Sch 1 dangerous drug of the order of trafficking in this case, offenders who have pleaded guilty and invoked a range of mitigating factors have commonly been sentenced to terms of imprisonment upheld on appeal of between ten and twelve years (with the automatic declaration that the offence was a serious violent one).” That case was another one particularly emphasised in the oral argument for the applicant.  It was relied upon as a yardstick for the present matter.  The sentence in Safi was for a trafficking over a period of nine months, and the sentence imposed was one of 10 years.  The Court said that a lesser sentence could not have been imposed in that case.  See [17].

By those yardsticks, it fairly appears that the sentence in the present case was a heavy sentence.  Nevertheless, this was an offence over a relatively lengthy period involving the wholesale distribution of the drug, and it was an enterprise in which the applicant persisted, despite close encounters with investigating police.  It might be safely inferred that her profit was in excess of $300,000.  There were mitigating factors, as the judge recognised, but the applicant was a mature person with an extensive criminal history.  A lower sentence may well have been imposed in her case.  Ultimately, however, this sentence is not demonstrated to be so high that it indicates that the judge has made some unidentified error in arriving at it.  I would refuse the application for leave to appeal.

SOFRONOFF P:  I agree.

BODDICE J:  I agree.