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R v Campbell[2022] QCA 135

SUPREME COURT OF QUEENSLAND

CITATION:

R v Campbell [2022] QCA 135

PARTIES:

R

v

CAMPBELL, Allira Jade

(applicant)

FILE NO/S:

CA No 114 of 2021

SC No 531 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 4 May 2021 (Williams J)

DELIVERED ON:

2 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2022

JUDGES:

Morrison and Mullins and Bond JJA

ORDERS:

  1. Leave to appeal against sentence granted.
  2. Appeal allowed.
  3. Set aside the sentence imposed in respect of Count 1 on 4 May 2021.
  4. On Count 1 the appellant is re-sentenced to nine years and six months’ imprisonment, to be served cumulatively upon the sentence imposed on 26 July 2017.
  5. For the purpose of s 159A(3A) of the Penalties and Sentences Act 1992, declare that the time the appellant was held in custody from 4 December 2019 to 3 May 2021, a total of 517 days, is not to be taken to be imprisonment already served under the sentence.
  6. The date the appellant is eligible for parole is fixed at 27 December 2028.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to various offences, the two most serious being trafficking in methylamphetamine and attempting to pervert the course of justice – where the sentences were ordered to be served cumulatively upon an existing sentence – where the overall effect was a sentence of 12 years’ imprisonment – where the applicant seeks leave to appeal against sentence on the basis the sentence is manifestly excessive in all the circumstances – whether there was an error in finding there was no declarable pre-sentence custody – whether appropriate recognition was given to the pre-sentence custody, particularly in the context of a serious violent offence declaration – whether the sentencing judge failed to consider the effect of parole cancellation on the applicant’s current custodial sentence – whether the sentencing judge adequately considered the applicant’s plea of guilty – whether the appeal should be allowed

Corrective Services Act 2006 (Qld), s 182(2), s 209

Penalties and Sentences Act 1992 (Qld), s 9(10), s 156A, s 159A

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, cited

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, followed

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited

R v Armitage; R v Armitage; R v Dean [2021] QCA 185, cited

R v Berns [2020] QCA 36, followed

R v Carlisle [2017] QCA 258, cited

R v Cottell [2009] QCA 398, followed

R v Coutts [2016] QCA 206, cited

R v Degn (2021) 7 QR 190; [2021] QCA 33, followed

R v Ensbey; Ex parte Attorney-General (Qld) [2005] 1 Qd R 159; [2004] QCA 335, followed

R v Minniecon [2017] QCA 29, cited

R v Nunn [2019] QCA 100, cited

R v NQ [2013] QCA 402, cited

R v NT (2018) 273 A Crim R 153; [2018] QCA 106, cited

R v Rodd; Ex parte Attorney-General (Qld) [2008] QCA 341, cited

R v Whitely [2021] QSC 154, cited

R v Wilson [2022] QCA 18, followed

Ross v Commissioner of Police (2019) 178 A Crim R 159, [2019] QCA 96, followed

Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74, followed

COUNSEL:

C R Smith for the applicant

S J Bain for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MORRISON JA:  The applicant pleaded guilty to various offences, the two most serious being trafficking in methylamphetamine and attempting to pervert the course of justice.
  2. [2]
    There were a total of 12 counts:
    1. (a)
      Count 1 - trafficking in methylamphetamine over a seven-month period;
    2. (b)
      Counts 2 and 4 to 8 – supplying a dangerous drug; in the case of Count 6, the supply was with a circumstance of aggravation;
    3. (c)
      Count 3 – attempting to pervert the course of justice;
    4. (d)
      Count 9 – damaging evidence with intent;
    5. (e)
      Count 10 – possession of a dangerous drug in excess of 200 grams;
    6. (f)
      Count 11 – possession of anything used in connection with trafficking; and
    7. (g)
      Count 12 – contravening an order about device information from a digital device.

There was also a summary charge of possessing a pipe.

  1. [3]
    The sentences imposed included: (i) 10 years’ imprisonment on the trafficking charge, which automatically attracted a serious violent offence declaration (SVO); and (ii) two years’ imprisonment on the charge of attempting to pervert the course of justice, to be served cumulatively with the 10-year sentence on the trafficking.
  2. [4]
    Counts 2, 4 to 9 and 12 attracted periods of imprisonment of between six and 18 months.  On Counts 10 and 11[1] and the summary charge, the applicant was convicted and not further punished.
  3. [5]
    All sentences were ordered to be served cumulatively upon an existing sentence imposed on 26 July 2017.  The full-time release date on that sentence is 6 July 2022.
  4. [6]
    As can be seen, the overall effect was a sentence of 12 years’ imprisonment, to be served cumulatively upon the existing sentence due to expire on 6 July 2022.  The SVO on the 10-year sentence means that the applicant will be required to serve 80 per cent of that term before being eligible for parole.  The parole eligibility date was set at 6 January 2031.  The full-time release date on the sentence is 3 May 2033.
  5. [7]
    The applicant seeks leave to appeal against the sentence imposed on the basis the sentence is manifestly excessive in all the circumstances, and as well because of several specific alleged errors:
    1. (a)
      Ground 1 - finding that there was no declarable pre-sentence custody;
    2. (b)
      Ground 2 - not giving appropriate recognition to the applicant’s pre-sentence custody, particularly in the context of a serious violent offence declaration;
    3. (c)
      Ground 3 - failing to consider the effect of parole cancellation on the applicant’s current custodial period; and
    4. (d)
      Ground 4 - the sentence failed to adequately reflect the applicant’s plea of guilty.
  6. [8]
    As will appear from the reasons below, leave to appeal should be granted, the appeal allowed, and the appellant re-sentenced.

The applicant’s criminal history

  1. [9]
    The applicant’s criminal history began in 2009, when she was 25 years old.  Until 2017 the convictions were for about 65 charges.  They included those typical of someone with a drug habit or addiction, but they went beyond that level, including escape from custody and serious assault:
    1. (a)
      drug offences, including possession of drugs and pipes: 4 counts;
    2. (b)
      stealing: 20 counts;
    3. (c)
      unauthorised dealing with shop goods: 1 count;
    4. (d)
      unlawful possession of stolen or tainted goods: 6 counts;
    5. (e)
      entering premises to commit an offence: 2 counts;
    6. (f)
      fraud or attempted fraud: 4 counts;
    7. (g)
      unlawful use and dangerous operation of vehicles: 13 counts;
    8. (h)
      breach of bail and breach of probation: 3 counts;
    9. (i)
      failure to appear on undertakings: 4 counts;
    10. (j)
      assaults (serious and causing bodily harm): 2 counts;
    11. (k)
      escape from lawful custody: 1 count; and
    12. (l)
      burglary: 5 counts.
  2. [10]
    It was in July 2017 that the first conviction for trafficking occurred.
  3. [11]
    Two of the sentences are of particular relevance to the present application.  They are the sentences imposed on 19 March 2014 and 26 July 2017.
  4. [12]
    On 19 March 2014, the applicant was sentenced in the District Court on multiple counts including burglary, stealing, fraud, receiving tainted property, assaults, possession of drugs and escape from custody.  She was sentenced to three years’ imprisonment with a parole release date of 19 May 2014.
  5. [13]
    That sentence meant the applicant went into custody on the term of imprisonment which, for the reason below, was still operative at the time of the present sentence.
  6. [14]
    The sentence on 26 July 2017 is significant for various reasons.  First the offence was trafficking in a dangerous drug over a period of about seven months between 13 November 2014 and 29 June 2015The applicant was trafficking to end users.  The sentence was five years’ imprisonment with a parole eligibility date of 24 December 2017.  Secondly, because of that sentence the applicant was on parole during the period of offending relevant to the present application.
  7. [15]
    I will later address the significance of the periods to which the applicant was sentenced, and the period of time served under those sentences.

The circumstances of the offending

  1. [16]
    An agreed schedule of facts formed the basis of the sentencing.
  2. [17]
    The applicant was 35 years old at the time of the offending, and she was on parole for a previous conviction of trafficking.
  3. [18]
    Police and the Crime and Corruption Commission began an operation targeting the trafficking of methylamphetamine and gamma hydroxybutyric acid (GHB).  One of the initial targets was one Mark Watson.  Initially the applicant and Watson trafficked in a form of partnership.  However, as the trafficking progressed and grew, the relationship between them soured and the applicant branched out on her own, so that she became the prime mover over Watson.

Trafficking overview

  1. [19]
    Over a six and a-half month period the applicant trafficked in wholesale quantities of methylamphetamine.  She sold an ounce (28g) of methylamphetamine for $3,000.  She had at least 25 customers.  At times, she would sell several ounces to a customer at once.  Intercepts revealed that on one occasion she stated she was in possession of $200,000.  On another occasion, she spoke about being in possession of $100,000.  She would supply to some customers on credit, chasing them up for money owed as required.  On one occasion she spoke about being owed $57,000 from a single week of trafficking.
  2. [20]
    The applicant’s customers had their own customer base.  To supply she would meet up with customers at their house, have them come over to her house, or meet at different pre-arranged locations.  Further, the applicant had people delivering drugs on her behalf and picking up cash for her.  On one occasion she spoke to a customer about half a kilogram of methylamphetamine being driven to their house.  The applicant stored some of her drug profits at the house of her mother (N).  She would then pick up the money as required.  N would deposit some of the money into a bank account on behalf of the applicant to cover the applicant’s living expenses.
  3. [21]
    At the end of the operation the applicant’s house was searched by police.  She was found in possession of one kilogram of crystal substance, in which was 757 grams of methylamphetamine.  She was in possession of several mobile phones.  She was returned to custody.  The trafficking did not stop when she was arrested and remanded.  She continued trying to chase up drug debts from her customers while in custody.

Method of communication

  1. [22]
    The applicant used “cipher” phones to conduct her business.  Cipher phones are mobile phones with an enhanced level of encryption and impenetrable security measures – these communications cannot be intercepted.  There were several interceptions from her regular phones where she spoke about her “cipher” phone or her “other” phone.  She encouraged customers to turn on their cipher phone, or check their cipher phone, so they could speak freely.  The applicant was cautious of being under surveillance.  On one occasion she called a courier and customer telling them she was under surveillance and not to call her any more on her current number.
  2. [23]
    On one occasion the applicant agreed to give a customer a cipher phone, which the applicant indicated was worth $2,500.  The applicant told the customer they could pay off the phone by paying an additional $100 each time they sold a bag of methylamphetamine.  On one occasion the applicant spoke about having to sell two cipher phones, for which she would receive $5,000.  On another occasion she spoke about having $10,000 worth of cipher phones to sell.
  3. [24]
    Police were able to obtain interceptions from the applicant when she was not using her cipher phones.  They intercepted her using five different mobile numbers.  She also encouraged people in her drug trafficking ring to use “WhatsApp” – a programme that allows users to communicate with each other through calls and text messages.  When she was arrested, she was found in possession of six mobile phones.  The applicant had also stashed an additional four phones at the house of her mother.
  4. [25]
    In intercepted communications the applicant tried to veil the true nature of her conversation.  She or her contacts would refer to methylamphetamine as “gear”, an ounce of methylamphetamine as “one” or a “whole one”, half an ounce of methylamphetamine as a “half”, GHB as “drinks”, when restocking drugs she would say she was going to “get on”, and money would be referred to as “coin” or “paper”.

Sourcing methylamphetamine

  1. [26]
    It was not always exactly clear how the applicant was sourcing her methylamphetamine or who she was sourcing it from.  Initially, it appeared that she and Watson worked in somewhat of a partnership in their sourcing, storage, and trafficking of methylamphetamine.  However, as the offending progressed and the quantity of methylamphetamine increased, it was apparent that the applicant became independent and Watson later became a customer of the applicant.  It was apparent that Watson owed the applicant money after one of Watson’s customers was raided by police.  On one occasion Watson and the applicant spoke about Watson paying the applicant $9,000 to source methylamphetamine.  The pair later spoke about Watson owing the applicant $6,000.  To repay the debt the applicant took a motorbike belonging to Watson, and which he kept in storage, without him knowing.
  2. [27]
    Later, the applicant was sourcing her methylamphetamine from a one Spizzirri who did not live in Queensland, but in Melbourne.  There were several communications where the applicant spoke about Spizzirri being unhappy with her for various reasons.  On one occasion she flew to Melbourne with $50,000 in cash.  On another occasion she spoke to a customer about half a kilogram of methylamphetamine being driven to their house.  On another occasion she spoke about waiting for ten ounces of methylamphetamine to be dropped at her house, and on another occasion she spoke about organising five ounces to be delivered to her.

Storage of methylamphetamine

  1. [28]
    Originally the applicant stored some of her methylamphetamine by burying it in a nature strip behind her house.  However, after some landscaping work commenced in that area, she became concerned it would be uncovered and began burying it in her own yard.  Police had devices monitoring the back of the applicant’s house.  From June through until December the devices showed the applicant or others burying around her back yard – consistent with them storing or retrieving methylamphetamine.  In several of the applicant’s intercepted communications she spoke about having something buried in her yard.  One kilogram of crystal substance (757g of methylamphetamine) was ultimately found buried in the applicant’s yard at the same location she could be seen crouching down from the monitoring devices.  The methylamphetamine was stored in containers consistent with those previously located in her car.  There was an intercepted call between the applicant and Watson where she told him where to purchase the black containers.

Supplying methylamphetamine

  1. [29]
    The applicant supplied methylamphetamine to at least 25 customers.  She sold wholesale amounts, typically being ounces (28g) and more.  At times, she would supply drugs on credit.  There were some occasions where the applicant did supply a “ball” (3.5g) or “half-ball” (1.75g).  However, when contacted by one potential customer the applicant told her “I don't do anything under half an ounce”. She told another customer she did not know what 3.5g of methylamphetamine was worth as she did not sell in those amounts.  There were at least two occasions the applicant referred two potential customers to two of her current customers as she was not selling the low amounts they were requesting.
  2. [30]
    There were examples of the applicant supplying half an ounce (14g), ounces (28g), one and a-half ounces (42g), two ounces (56g), and three ounces (84g).  The applicant had drivers to deliver methylamphetamine on her behalf, she delivered methylamphetamine herself, she met at prearranged locations to deliver methylamphetamine, she would deliver to customers’ houses, and on one occasion she dropped methylamphetamine in a customer’s unlocked car and picked up an envelope of money in the car.
  3. [31]
    The exact number of particularised supplies, turnover, or profit made could not be determined.  However, at least the following number of particularised supplies of methylamphetamine to customers could be identified:
    1. (a)
      on 14 separate occasions the applicant supplied an unknown amount;
    2. (b)
      on one occasion she supplied 1.75g;
    3. (c)
      on three separate occasions she supplied 3.5g;
    4. (d)
      on one occasion she supplied 4g;
    5. (e)
      on two separate occasions she supplied 7g;
    6. (f)
      on six separate occasions she supplied 14g;
    7. (g)
      on six separate occasions she supplied 28g;
    8. (h)
      on one occasion she supplied 42g;
    9. (i)
      on six separate occasions she supplied 56g;
    10. (j)
      on two separate occasions she supplied 84g; and
    11. (k)
      on one occasion she spoke about half a kilogram of methylamphetamine being driven to a customer’s house.
  4. [32]
    Throughout the operation several of the applicant’s customers were intercepted by police, for example:
    1. (a)
      on 5 July, 2019 one of the applicant’s customers, Lambert, was found in possession of approximately 25g methylamphetamine; Lambert’s cellebrite revealed her exchanging messages with the applicant about sourcing methylamphetamine days prior;
    2. (b)
      on 22 November, 2019 one of the applicant’s customers, Collins, was found in possession of an ounce of methylamphetamine; intercepts revealed the applicant and customer arranging to meet up shortly before this; they had further conversations after Collins was charged where the applicant offered to pay for Collins’ lawyer and also agreed to supply her another ounce and a-half of methylamphetamine; and
    3. (c)
      on 4 December, 2019 one of the applicant’s customers, McDonnell, was found in possession of 11g of methylamphetamine.
  5. [33]
    During the trafficking the applicant told one of her customers, “it feels like there is no one else selling gear in the whole country”.  After she was arrested, several of her phone calls were intercepted through the prison telephone system.  The applicant told others, “I can’t sell that much drugs and not be under surveillance”.

Money

  1. [34]
    The applicant chased her customers up for money owed.  Customers would frequently owe the applicant thousands and several thousands of dollars, including a customer who spoke about previously owing the applicant $13,500.  Customers would pay money by transferring it into her bank account, she had drivers who would obtain money on her behalf from customers, and she would also collect money from her customers’ houses.
  2. [35]
    On one occasion she spoke to a customer who had $6,000 of money owed to her – the customer indicated they were anticipating receiving another $23,000 shortly.  On another occasion the applicant spoke to a customer about outstanding money owed to her.  She told them that from the last week alone she was owed $57,000 from various customers.  The next day she told other customers she was owed $60,000 and spoke about two people who owed her $6,000 who were now in jail.
  3. [36]
    The applicant would, at times, store her drug proceeds at the house of her mother.  TI revealed that over two months from October to December there were at least eight separate occasions where the applicant delivered money to her mother.  The applicant would also retrieve the money from her mother as she required.  It could not be ascertained exactly how much money was being delivered/retrieved on each occasion, however, the applicant delivered at least an approximate $120,000 in cash to her mother.  On one occasion the applicant retrieved $80,000 from her mother’s house.  On another occasion she retrieved $20,000.  The applicant would speak to her mother about the large sums of money she was in possession of, on one occasion she spoke about sending a driver to retrieve $200,000, and on another occasion she spoke about being in possession of $100,000.  Her mother controlled a bank account on behalf of the applicant that she would deposit the applicant’s drug money into – the applicant would ask her mother about how much money remained in the account.  At the end of the operation $21,400 of the applicant’s drug money was located at her mother’s house (the Crown did not allege this money was additional to the $120,000 described above).

Enforcement

  1. [37]
    On one occasion the applicant spoke with another customer about the possibility of taking the car of someone who owed the applicant money.  On another occasion she spoke about a person who had stolen an ounce of methylamphetamine from her.  She accused this person of stealing $4,500 from one of her own customers.  When speaking about this person to another she said, “I will end up fuckin’ killing him” and “I’ll end up having to cut his fingers off to teach him a fuckin’ lesson so he can’t fuckin’ steal”.
  2. [38]
    Methylamphetamine was the bulk of the applicant’s business, however, she was also suppling GHB.  She had at least six customers to whom she supplied GHB.  On one occasion she spoke about being able to source a litre of GHB for $1,500 from someone in Brisbane.  She spoke about selling 1 ml of GHB for $3.00.  The following supplies could be determined:
    1. (a)
      on 18 August, 2019 the applicant supplied a small amount of GHB to Mark Watson (count 2 - supplying a dangerous drug);
    2. (b)
      on 1 October, 2019 the applicant supplied an unknown amount of GHB to Jade Waugh (count 4 - supplying a dangerous drug);
    3. (c)
      on 13 October, 2019 the applicant supplied a small amount of GHB to Shane Kennedy (count 5 - supplying a dangerous drug);
    4. (d)
      on 26 October, 2019 the applicant did acts preparatory to supply GHB, by trying to find a courier to drive 40 litres of GHB from Sydney to Queensland; she indicated she was willing to pay someone $5,000 to be a courier (count 6 - supplying a dangerous drug);
    5. (e)
      on 29 November, 2019 the applicant supplied an unknown amount of GHB to Melanie McDonnell (count 7 - supplying a dangerous drug); and
    6. (f)
      on 4 December, 2019 the applicant supplied an unknown amount of GHB to Dan (count 8 - supplying a dangerous drug).
  3. [39]
    During the trafficking period the applicant did not have a legitimate income.  On one occasion she spoke with her mother about getting Centrelink sorted.  When her mother suggested the applicant could get a job, the applicant indicated she couldn’t think that far ahead.  As she was on parole at the time, she pretended to run her own hairdressing business to satisfy her parole supervisors.  On one occasion she spoke to one of her contacts where she agreed to setting up a “charade” to give the impression of doing hairdressing when she was visited by parole.  When she was arrested on 4 December, 2019 she still had a chair and mirror setup trying to create the facade of legitimate work.

Count 3: Attempt to pervert the course of justice

  1. [40]
    At approximately 12.40 pm on 20 August, 2019 the applicant was stationary, alone in her black Mercedes-Benz which was parked on Olsen Avenue in Labrador.  Police activated their lights to intercept the applicantAs an officer began walking towards the applicant’s driver door, she accelerated back onto the road, through a break in the median strip, onto the wrong side of the road where she nearly collided with oncoming traffic.  She drove away.  The car was later found abandoned by the applicant.
  2. [41]
    Shortly afterwards intercepted communications revealed the applicant speaking with others where they hatched a plan to have someone else take responsibility for the offending so that the applicant could avoid liability.  They were concerned police would be looking for the applicant, especially given the fact she was on parole at the time.
  3. [42]
    Within days of the driving offences, Sophie Davis was contacted by the applicant’s partner.  Davis was offered $5,000 to take responsibility for the applicant’s offending, which Davis agreed to.  At this stage all the parties were under the impression there would only be an evasion offence, not the dangerous operation too.  Davis agreed and she, the applicant and the applicant’s partner agreed on a story that Davis had borrowed the car that day from the applicantDavis was immediately paid $1,400 in cash.
  4. [43]
    After that date the applicant had contact with the police where she nominated Davis as the driver.  On 16 September, 2019 the applicant swore an affidavit nominating Davis as the driver, which she provided to police.  On 30 September, 2019 Davis attended a police station where she falsely claimed she was the driver having borrowed the car from the applicant.  Davis was issued a notice to appear for the evasion offence and dangerous operation of a motor vehicle.  After being charged there were a series of communications where Davis was jilted at the applicant, at the fact there was also the additional charge of dangerous operation of a motor vehicle.
  5. [44]
    From that date there were several other intercepted communications where the pair spoke about the charges.  The applicant ended up paying the entirety of the money agreed, or at times supplied methylamphetamine in lieu of payment.  On one occasion the applicant paid Davis $1,000 cash in-person.  Over two separate transactions the applicant transferred $1,500 to Davis.  The defendant also agreed to pay Davis any fines she received for the driving offences.
  6. [45]
    On 28 October, 2019 Davis had her first Court appearance for the matter.  It was adjourned for her to get legal representation.  The pair spoke about this and the applicant subsequently arranged for a lawyer to represent Davis.[2]  The applicant told Davis that the applicant had paid a lawyer $15,000 to represent Davis, however, there is no financial evidence supporting the applicant’s claim.
  7. [46]
    The relationship between the applicant and Davis soured.  Davis was concerned that CCTV from the day of the driving offences might show she was not the driver.  Davis was also frustrated at the applicant for often ignoring her requests for methylamphetamine, in response to which the applicant told her it was not part of their deal and that the applicant had paid all the money agreed.
  8. [47]
    On 4 November, 2019 Davis had a meeting with her lawyer about the charges.  On 11 November, 2019 there was another Court appearance.  The applicant and Davis continued communicating about the progress of the matter.  On 26 November, 2019 the applicant paid Davis[3] an additional $240 for Davis’ lost wages for attending a driving course.
  9. [48]
    The offending did not cease until both the applicant and Davis were arrested on 4 December, 2019 at the closure of the drug operation.  As the applicant was under surveillance for the drug offending, the attempt to pervert was easily detected from all the intercepted telecommunications.  Furthermore, the applicant made admissions to this offending during phone calls that were intercepted while she was remanded in custody.

Search of defendant's house on 04/12/2019

  1. [49]
    At approximately 6.50 am on 4 December, 2019 police executed a search warrant at the applicant’s house.  At the house was the applicant, her 14 year-old daughter, and two of the applicant’s friends.
  2. [50]
    As police were entering the applicant’s apartment, she poured an unknown amount of GHB down the sink (count 9 - damaging evidence with intent).  There were later intercepted communications while the applicant was in custody where she spoke about one of her friends at her house was there for GHB and that she poured her “alcohol” down the sink and “tipped shit out” when police knocked on her door.
  3. [51]
    In the backyard was a shovel leaning against the wall.  Police used the shovel to dig at some disturbed dirt at a location where the surveillance devices depicted the applicant often crouching down.  In the dirt of the backyard police dug up two containers.  Each container held two clip seal bags containing methylamphetamine (count 10 - possessing a dangerous drug in excess of 200g).  In total, the crystal substance weighed 998.124g of which 757.008g was methylamphetamine (75.84 per cent).
  4. [52]
    The applicant possessed six different mobile phones she had used in her trafficking (count 11 - possessing anything used in connection with trafficking in dangerous drugs).  The first five listed below were in her bedroom, and the last in the kitchen:
    1. (a)
      in her handbag was an Alcatel mobile telephone;
    2. (b)
      in her handbag was a Samsung mobile telephone;
    3. (c)
      under her bed, in a bag was a black Apple iPhone;
    4. (d)
      under her bed, in a bag was a white Apple iPhone;
    5. (e)
      in her bedside drawer, was a black Apple iPhone; and
    6. (f)
      in a drawer was a Nokia mobile telephone.
  5. [53]
    The search warrant obtained by police required the applicant to provide police with access to her mobile phones.  The six mobile phones seized by police required a pin code to access.  The applicant refused to give access to any of them.  When asked again at the watch house, she again refused to provide access to the mobile phones (count 12 - contravening order about device information from digital device).
  6. [54]
    Under her bed in the applicant’s bedroom, was a glass smoking pipe (summary charge of possessing a pipe).
  7. [55]
    Prior to being arrested police gave the applicant and her 14-year-old daughter some alone time to say goodbye to each other.  However, the applicant packed $80,000 of her trafficking proceeds into her daughter’s backpack, and her daughter left the house with the $80,000.  Later prison phone calls revealed the applicant boasting how police “didn’t get money from me” because of her daughter.
  8. [56]
    At the end of the search the applicant was arrested.  She declined to take part in an interview.  She was remanded in custody.

Commerciality

  1. [57]
    The methylamphetamine was possessed by the applicant for a commercial purpose, as evident from her prior trafficking.  The kilogram of crystal substance could have been divided into at least 35 separate ounce bags.  If sold at $3,000 per ounce this would have had a value of $105,000.  If sold at street level, for example 0.1g for $50, it would have had an approximate value of $500,000.

Custody

  1. [58]
    While in custody the applicant continued chasing up debts owed to her and talking about her trafficking business.  These communications were intercepted through the prison’s ARUNTA call system.

Chasing debts

  1. [59]
    The intercepted phone calls revealed the applicant trying to have others chase up her debts, for example:
    1. (a)
      on 18 December, 2019 she spoke to a contact and told them to retrieve $3,000 that was owed by a customer;
    2. (b)
      on 27 December, 2019 she spoke to a contact and suggested they go to the mother’s house of the customer who owed the $3,000 to retrieve the money; she also spoke about one customer who owed $5,000 and another who owed $3,000, and told the contact to tell them that she needed her money; and
    3. (c)
      on 1 January, 2020 she spoke to a contact about a person who owed her $4,500 for an ounce of methylamphetamine and a cipher phone.

Admissions

  1. [60]
    The ARUNTA calls recorded the applicant making admissions to her trafficking.  On one occasion she told a contact “I’m good for trafficking, I don’t care”. In another one of her conversations she spoke about how police had arrested her “drivers”. She also spoke about selling cheap gear”, and that you “can’t pump that much gear and not go to jail”.

Extent of trafficking

  1. [61]
    When talking about her trafficking she told one of her contacts, “what they got with that raid is nothing”.  She stated, “you know what, I got away with a lot more” and that “five months of trafficking and a kilo, that’s all they’ve got”.  On another occasion she stated, “I am lucky to only get done with what I got”.  In relation to the 1 kg of methylamphetamine found at her house she was recorded as saying, “you got one, that’s it.  I said I’m happy with that.  I’m happy with one”.
  2. [62]
    During a conversation with one of her contacts, the applicant was asked whether she had a nest egg, to which she responded, “I’ve got everything mate.  I’m sweet … all they got was a kilo.  And no money”.

The sentences below

  1. [63]
    As noted in paragraphs [3] to [6] above the sentences imposed by the learned primary judge were the following terms of imprisonment:
    1. (a)
      10 years on the trafficking charge, which automatically attracted an SVO; and
    2. (b)
      two years on the charge of attempting to pervert the course of justice, to be served cumulatively with the 10-year sentence on the trafficking;
    3. (c)
      between six and 18 months on Counts 2, 4 to 9 and 12; and
    4. (d)
      on Counts 10 and 11[4] and the summary charge, the applicant was convicted and not further punished.
  2. [64]
    All of those sentences were ordered to be served cumulatively upon an existing sentence imposed on 26 July 2017, in respect of which the primary judge was informed that the full-time discharge date was 6 July 2022.
  3. [65]
    The effective sentence was 12 years’ imprisonment, to be served cumulatively upon the existing sentence.  The SVO on the 10-year sentence means that the applicant will be required to serve 80 per cent of that term before being eligible for parole.  The parole eligibility date was set at 6 January 2031.  The full-time release date on the sentence is 3 May 2033.
  4. [66]
    Except to the extent dealt with below, there is no need to further examine the approach of the learned primary judge.  Error was conceded by the Crown and this Court has to re-sentence the applicant.

Grounds 1 and 3

  1. [67]
    Ms Smith of Counsel, appearing for the applicant, submitted that there were two errors in the approach of the learned sentencing judge, namely:
    1. (a)
      finding that there was no declarable pre-sentence custody; and
    2. (b)
      failing to consider the effect of parole cancellation on the applicant’s current custodial period.
  2. [68]
    For the Crown, Mr Bain accepted that these errors are made out.  He also identified a third error, not included in the applicant’s grounds.  However, he contends that the effect of these errors was to the benefit of the applicant.

Ground 1 – pre-sentence custody

  1. [69]
    As to the first error in relation to the pre-sentence custody, the respondent accepts that the learned sentencing judge acted upon a wrong principle[5] in observing, consistently with what the prosecutor told the court, “there is no pre-sentence custody to be declared”.
  2. [70]
    The sentence was imposed after the amendment (effective 25 May 2020) to section 159A of the Penalties and Sentences Act 1992 (Qld).[6]  In R v Whitely[7], Bowskill J[8] considered that amendment.  Her Honour held a declaration of time could be made when on remand for an offence, even if serving another sentence,[9] but that the court retains “a discretion whether or not to declare all, or some, or any of that time”.[10]
  3. [71]
    On that basis the sentencing judge could have declared the time from 4 December 2019 to 3 May 2021, a period of 517 days.[11]  Accordingly, although it was not in error to not declare the time, it was an error to consider there was nothing to be declared.
  4. [72]
    The applicant did not contend that all of the pre-sentence custody should have been declared, merely submitting that “some portion of the applicant’s 516 days in pre-sentence custody could have been declared”.[12]
  5. [73]
    In my view, it is apparent that the learned sentencing judge ameliorated the head sentence by taking at least part of the pre-sentence custody into account:[13]

“It is also necessary to consider the interaction between the existing sentences which you are already serving and any sentence which is being imposed today.[14]

In relation to the sentence to be imposed today there is no pre-sentence custody to be declared. However, one of the most important considerations in arriving at a sentence today is the consideration of the totality of the sentence and the effect of any sentence today in total with the previous sentences. Any sentence imposed today is cumulative on your existing period of imprisonment. This would have the effect that you could serve a considerable period of time in custody. …[15]

It is a requirement to impose a penalty which is just in all the circumstances which may require some amelioration of the sentence to be imposed today, having regard to the cumulative effect of the penalties imposed and the need to avoid a crushing sentence.[16]

I consider that in all the circumstances, an appropriate starting point in respect of the trafficking offending here would be 12 years. What then is necessary is to consider the mitigating factors which would mitigate and ameliorate the sentence down and whether the appropriate sentence in all of the circumstances is 10 years, as proposed by the Crown, or is less than 10 years, as contended for by the defence. As indicated previously, the interaction of the parole eligibility considerations as a result of the Serious Violent Offence legislative scheme and also the time already served means that on any count, a considerable sentence will be served ultimately …[17]

As previously indicated, I need to take into account the existing sentence, so that the total period in custody adequately and fairly represents the totality of the criminality involved in all of the offences to which the total period is attributable. … five years, eight months and 15 days will have been served in relation to that other offending[18]

There is no pre-sentence custody to be declared, however, as indicated, I do take into account the time you have already served and the time that you will need to serve to be completed prior to any cumulative sentence today …”[19]

  1. [74]
    The applicant conceded that her Honour “reduced the notional head sentence of 12 years to 10 years to satisfy both consideration of the plea of guilty and pre-sentence custody”.[20]  Thus, the applicant accepts that part of the pre-sentence custody was, in fact, taken into account in ameliorating the sentence.
  2. [75]
    Therefore, the conceded error did not necessarily result in a more severe sentence.

Ground 3 - the effect of parole cancellation

  1. [76]
    When constructing the sentence the learned sentencing judge failed to take into account a material consideration,[21] namely the automatic cancellation of the applicant’s parole.
  2. [77]
    Due to the Serious Violent Offence declaration the applicant could not have a parole eligibility earlier than “80% of the prisoner’s term of imprisonment for the serious violent offence”.[22]  The learned sentencing judge intended to delay that by a further six months due to the cumulative component of the sentence for the other offences.
  3. [78]
    However, relying on advice from both Counsel, her Honour erroneously calculated that period (eight and a-half years) from 6 July 2022.[23]  Pursuant to s 209 of the Corrective Services Act there was an automatic cancellation of parole on the date that the offence occurred.  That extended the prior sentence to 27 December 2022.
  4. [79]
    The applicant was given leave to adduce fresh evidence in the form of an amended Sentence Calculation.[24]  As was submitted,[25] that document “shows that the end date for the applicant’s current sentence is 27 December 2022, NOT 6 July 2022 as referred to in submissions at sentence”.
  5. [80]
    That error was to the applicant’s benefit in that the calculation for eligibility was made 174 days earlier than it should have been.  That resulted in a parole eligibility date of 6 January 2031 (just over eight years into the term of the trafficking sentence).
  6. [81]
    The admitted error did not necessarily result in a more severe sentence.

Additional error – trafficking sentence to be cumulative on the prior sentence

  1. [82]
    Mr Bain submitted, correctly in my respectful view, that the learned sentencing judge acted upon a wrong principle[26] in not specifically ordering the sentence imposed for the trafficking offence to be served cumulative upon the existing sentence.
  2. [83]
    Section 156A of the Penalties and Sentences Act had application to any term of imprisonment imposed for the trafficking offence.  In accordance with subsection (2) that sentence “must be ordered to be served cumulatively with any other term of imprisonment the offender is liable to serve”.
  3. [84]
    The learned sentencing judge intended that to be the effect of the orders,[27] however, the orders themselves did not specify that sentence to be served cumulatively upon the sentence imposed on 26 July 2017.  That has resulted in the applicant’s sentence being served concurrently with the prior sentence, as is demonstrated by the applicant’s sentence calculation showing a full-time release date of 3 May 2031 (i.e. 12 years after the sentence date).
  4. [85]
    As Mr Bain submits, that is an error in the applicant’s favour as it reduced the period of imprisonment from what her Honour intended.

Ground 2 – no appropriate recognition of pre-sentence custody

  1. [86]
    The applicant placed reliance upon authorities that pre-date the May 2020 amendments to s 159A of the Penalties and Sentences Act, including R v NT,[28] R v Armitage,[29] R v Carlisle[30] and R v NQ,[31] urging that had they been followed some identifiable recognition could have been seen in respect of the pre-sentence custody.  It was submitted that:[32]
    1. (a)
      NT provides a succinct overview of the general position regarding pre-sentence custody that cannot be declared:[33]

[28] Time spent in custody should be taken into account by “a proportionate reduction of the sentence otherwise imposed.” It is not mandatory to reduce both the head sentence and the non-parole period, but the usual practice is to perform both reductions.

[29] In Carlisle, Applegarth J also cited with approval the decision of Thomas J in R v Wishart and Jenkins as the usual way in which this should be done:

“The head sentence is the sentence properly imposable less the time actually served up to the time of sentence; and the non-parole period is half the sentence properly imposable less the time actually served up to the time of sentence.”

[30] In Skedgwell, it was noted that the sentencing judge should “make it plain” in the sentencing remarks “whether and to what extent and in what manner, such an allowance is being made on account of a period of that custody” Similarly, if an allowance is not being made, the sentencing judge should explain why it is not being done.”

  1. (b)
    the “non-declarable” pre-sentence custody can be considered in conjunction with the automatic application of the SVO;
  2. (c)
    if the approach taken in Armitage and Carlisle is adopted, the applicant should serve 3,506 days (80 per cent of 12 years); if this started from 4 December 2019, the parole eligibility date would be 10 July 2029; it is noted that the applicant in Carlisle had non-declarable time due to being remanded on other matters, not due to re-offending on parole; it is therefore conceded that it would not be appropriate for the applicant to be permitted to backdate the sentence to 4 December 2019 and receive the full credit; rather, that some proportion of the pre-sentence custody should be taken into account; and
  3. (d)
    another way of expressing the pre-sentence custody is to consider it as per the approach in NQ27- 516 days is 80 per cent of 646 days or approximately one year and nine months; the relevance of this consideration is that the head sentence should be reduced by up to 646 days, rather than 516 days (given that the non-parole period cannot be adjusted downward on application of an SVO).
  1. [87]
    For the Crown, Mr Bain submitted that the applicant was on remand for these offences while serving the previous sentence.  As such, it was a relevant aspect of the sentence but, as the applicant concedes, she was not entitled to “receive the full credit”[34] on that time.  That is supported by the approach of Bowskill J in R v Whitely.[35]
  2. [88]
    As noted above in paragraphs [73] to [74] it is apparent that the learned sentencing judge allowed part of the pre-sentence custody when setting the sentence.  Her Honour adopted a start point at 12 years for the trafficking offence alone, reducing that to 10 years as a result of a combination of two factors:[36]
    1. (a)
      the only identified mitigating factor, namely the early plea of guilty, which was moderated by the absence of any real remorse;[37] and
    2. (b)
      totality considerations relating to the existing sentence under which five years, eight months and 15 days would be served, ending in July 2022.[38]
  3. [89]
    Whilst it seems plain that her Honour did intend to ameliorate the trafficking sentence by recognising the pre-sentence custody, it is difficult to see how that was done.  Put another way, adopting what was said in NT,[39] it is difficult to see “to what extent and in what manner, such an allowance [has been] made on account of [the] period of that custody”.
  4. [90]
    The overall criminality of the non-trafficking offences was recognised by the two-year sentence imposed on the count of attempting to pervert the course of justice.[40]  The two-year mark was one agreed by both the Crown and defence during the course of the submissions at the sentencing hearing.[41]  No one submitted that the two-year mark was already reduced for any mitigating factor.
  5. [91]
    It is not evident that any separate reduction was made by the learned sentencing judge in respect of the sentence on Count 3 by reason of the pre-sentence custody.  That two-year sentence was then ordered to be served cumulatively with the ten-year sentence on the trafficking.  And, of course the sentence on Count 3 would be cumulative upon the existing sentence being served.
  6. [92]
    Therefore, the overall effect of making the sentences on Count 1 (trafficking) and Count 3 (attempt to pervert the course of justice) cumulative was that an effective 14-year sentence[42] was reduced to 12 years for reasons which included an undefined recognition of pre-sentence custody only on Count 1.

Ground 4 – inadequate reflection of guilty plea

  1. [93]
    The applicant submitted that the learned sentencing judge tempered the recognition to be afforded to the plea of guilty due to her lack of remorse.  It was submitted:[43]
    1. (a)
      in accordance with R v McQuire[44] the criminal justice system acknowledges that a plea of guilty is a mitigating factor even when not accompanied by an expression of remorse;
    2. (b)
      in R v Carlisle[45] the following observation was made:

Cases such as Chen suggest that a timely plea of guilty will be reflected by way of a substantial reduction of the head sentence where the result remains a sentence of 10 years or more so as to automatically attract a serious violent offence declaration.”

  1. (c)
    in R v Chen[46] the starting point was an 18 to 20-year head sentence, ameliorated to 14 years to account for mitigating factors, particularly the early plea;
  2. (d)
    further, in Carlisle[47] authorities were reviewed with the observation that principals of large-scale drug operations often receive sentences of around 10 years imprisonment on a plea of guilty, as opposed to 12 to 13 years following trials or late pleas; and
  3. (e)
    in circumstances in which a plea of guilty cannot be acknowledged with the conventional fixing of a non-parole period at one-third, it is logical that the benefit would be reflected in a considerable reduction in the head sentence; how else could there be any incentive to enter a plea of guilty for SVO offences?”
  1. [94]
    At first blush the contention that the learned sentencing judge did not give “appropriate recognition” to or “adequately reflect” a particular factor seems to me to be similar in effect to a suggestion that the sentencing judge placed insufficient weight on a factor.  In R v Coutts[48] this Court said that a contention that a sentencing judge placed “insufficient weight” on matters was not an allegation that the sentencing judge acted upon a wrong principle, took into account extraneous or irrelevant matters, mistook the facts, or failed to take into account a material consideration.[49]  Fraser JA went on to say:[50]

“The weight to be given to relevant considerations is a matter for the sentencing judge in the exercise of the sentencing discretion. This court has decided that, in a sentence appeal of this kind, a ground of appeal which contends that a sentencing judge placed insufficient weight upon a factor which the sentencing judge took into account does not justify the Court in setting aside the sentence.”

  1. [95]
    That said, such a submission may still form part of a contention that the sentence is manifestly excessive.[51]
  2. [96]
    The learned sentencing judge took the early guilty plea into account as a “mitigating factor”.[52]  However, the extent of the mitigating effect was moderated by the fact that the plea being made without “any real remorse”.[53]  In that regard the learned sentencing judge rightly observed “there is not as much of a reduction that can be provided for in the particular circumstances”.[54]  As was said by the High Court in Siganto v The Queen:[55]

“… a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case.”

Re-sentencing and Ground 5 (sentence manifestly excessive)

  1. [97]
    The Crown conceded that the three errors[56] meant that this Court had to re-sentence the applicant, unless it is satisfied that no other sentence should be imposed in the circumstances.[57]
  2. [98]
    That concession, made as to the errors identified by the applicant, and one extra by the Crown, make it unnecessary to examine the question of whether the sentences imposed were manifestly excessive.  However, the submissions advanced on that ground by the applicant were equally applicable to the re-sentencing.  Ms Smith frankly conceded that the appeal was not an appeal about comparable authorities, but an appeal about sentencing principles.
  3. [99]
    Ms Smith submitted that a sentence which means the applicant will not be eligible for parole until 6 January 2031 is crushing and not reflective of appropriate recognition of the applicant’s pre-sentence custody and plea of guilty.  The points made were:[58]
    1. (a)
      a clear difficulty is that a head sentence of 10 years imprisonment on the trafficking offending was solidly within range; the problem is that the resultant automatic SVO does not allow for appropriate credit to be given via an earlier parole eligibility date;
    2. (b)
      accordingly, the sentence in relation to Count 1 should be varied in one or a combination of the following ways:
      1. reduce the head sentence for the trafficking offence to nine-and-a-half years to adequately reflect the applicant’s pre-sentence custody and plea of guilty, a discretionary parole eligibility date could then be set;
      2. considering the effect of the additional 174 days (parole cancellation) to be served by the applicant, the head sentence could be reduced by six months and a discretionary parole eligibility date could then be set;
      3. as per section 159A, make a declaration of some proportion of the 516 days pre- sentence custody, which would have the effect of bringing forward the applicant’s parole eligibility date even if the automatic SVO remains.
  4. [100]
    Ultimately, as formulated in oral address the applicant’s contention is that it is the sheer length of the period of imprisonment which bears significant relevance in terms of determining that sentence to be imposed now.  In support of that contention Ms Smith pointed out:
    1. (a)
      the period of imprisonment noted on the presentence custody certificate is 18 years, six months and four days; that is because the starting point for the period of imprisonment that the applicant is currently serving actually commences with the sentence imposed on 19 March 2014;
    2. (b)
      the sentence on 19 March 2014 did not declare a 404-day period of pre-sentence custody as time served, though his Honour said he took it into account;[59] nonetheless it meant the applicant had been in custody from 8 February 2013;
    3. (c)
      the effect of the 174 days being wrongly excluded in the pre-sentence certificate is that the full-time release date for the 2017 sentence is 27 December 2022 rather than 6 July 2022;
    4. (d)
      the sentence imposed in 2017 was made cumulative upon the 2014 sentence; the effect was that those two sentences formed one unbroken period off imprisonment; because of the particular features of this case, there is a very substantial effect as a result of the cumulative effect of three sentences in a row, causing that considerable period of not continuous time in custody;
    5. (e)
      the parole eligibility date was to be assessed by reference to the entire period of imprisonment, and that was not done, either in submissions or in the sentencing remarks themselves;
    6. (f)
      if one were to assume the applicant achieved parole at her current eligibility date of 6 January 2031, she would have been in custody for more than 15 years of an 18-year period of imprisonment, or about 83 per cent of the entire period;
    7. (g)
      the sentence ought be moderated not just for cumulation, but accumulation upon accumulation, causing this very long period of imprisonment;
    8. (h)
      the current structure leaves little ability to impose supervision which would encourage the applicant to cease her addiction; equally, it was conceded that the applicant not done well with supervision to date and may require some more intensive interventions; and
    9. (i)
      in terms of a parole eligibility date, it was conceded that something between 50 per cent and 60 per cent would be appropriate.
  5. [101]
    For the Crown, Mr Bain submitted that the re-sentence would likely result in the same, or a higher, sentence being imposed.  There were several aspects to that submission:
    1. (a)
      the offending was objectively very serious; punishment, personal and general deterrence were important purposes in the sentence;
    2. (b)
      the applicant had committed a serious example of commercial trafficking: carried out over a six-month period; selling wholesale quantities to at least 25 drug dealers; she employed others in the business; an interstate supply network;
    3. (c)
      the operation was sophisticated; cipher phones were used to conceal activities; drugs were sold on credit; enforcement was stern enough to stop short of actual violence; proceeds (over 4120,000) was stored at her mother’s house;
    4. (d)
      the trafficking continued while she was on remand, with debts chased;
    5. (e)
      the prior trafficking conviction was an aggravating factor under s 9(10) of the Penalties and Sentences Act;
    6. (f)
      other offences were serious; the attempt to pervert the course of justice particularly so, as it strikes at the heart of the justice system; the applicant paid $5,000 to someone to lie about an incident where the applicant was evading police; she destroyed evidence and denied access to the phones she used;
    7. (g)
      R v Nunn,[60] R v Rodd; Ex parte Attorney-General (Qld)[61] and R v Berns[62] all supported a start point at 12 years for the trafficking;
    8. (h)
      some amelioration of the sentence is appropriate to reflect the early plea of guilty, to the extent it assisted in the co-operation with the administration of justice;
    9. (i)
      totality is also a relevant feature[63] in arriving at an appropriate sentence as the trafficking count must be served cumulatively with the prior sentence and the applicant had been on remand while serving that sentence; that feature can be reflected by a reduction in the head sentence or a declaration of some of the time spent on remand, or both;
    10. (j)
      a sentencing court is not required to discount the sentence which is otherwise considered appropriate by, for example, reducing it by the precise amount of time the offender has already served under the existing sentence; time an offender is serving in custody under a previously imposed penalty of imprisonment is not generally treated in a like manner to pre-sentence custody on remand, whether that is formally declarable or not;[64] and
    11. (k)
      R v Cottell,[65] Ross v Commissioner of Police[66] and R v Ensbey; Ex parte Attorney-General (Qld)[67] support a cumulative sentence in the order of two years’ imprisonment to reflect the additional criminality on the non-trafficking counts.

Consideration – re-sentence

  1. [102]
    This Court cannot proceed on the basis that the error in the pre-sentence custody certificate can or should be perpetuated.  It must be corrected notwithstanding that the error works in favour of the applicant.
  2. [103]
    Because of the operation of s 209 of the Penalties and Sentences Act, there was an automatic cancellation of parole when the current offence was committed, namely on 4 May 2021.[68]  The full time release date of the 2017 sentence is 27 December 2022.

Characterisation of the offending conduct

  1. [104]
    The agreed facts concerning the offending are set out in paragraphs [17] to [62] above.
  2. [105]
    The most serious charge was that of trafficking in methylamphetamine and GHB.  A salutary feature was that the trafficking was carried out while the applicant was on parole for a trafficking offence.
  3. [106]
    As the facts show this trafficking was a sophisticated, large operation, of a commercial nature, wholesaling to more than 25 customers in the case of methylamphetamine and more than six customers for GHB.  Sometimes methylamphetamine was supplied at the level of an ounce at a time.  The applicant at one time even spoke of supplying half a kilogram.  Supply was often on credit, and steps were taken to enforce debts.  There were threats of violence to debtors, but no evidence that actual violence was applied.  The business was significantly profitable.  It was well beyond the scale of feeding the applicant’s addiction.
  4. [107]
    The methylamphetamine was sourced partly interstate, requiring travel to Melbourne on one occasion.  It was clearly an escalation in criminal behaviour as the first trafficking offence was constituted by street level supply.
  5. [108]
    The applicant employed a number of people to help run it, in delivering drugs and collecting money.  She used concealment tactics, such as multiple phones, cipher phones, and codes.  That was contrasted by, at times, quite open language suggesting that the applicant was comfortable with her business.  Quantities of drugs were buried in the backyard to conceal their presence.  The applicant repeatedly refused to give police access to the mobile phones.  For that reason the true size of the enterprise is unknown, but likely to be greater than the bare facts suggest.
  6. [109]
    The applicant used her mother to assist the business by laundering the proceeds and storing the money at her house.[69]  The applicant also took steps to deceive the parole supervisors, by setting up a fake hairdressing business.  The trafficking did not cease until the applicant was arrested.  But for that it is clear she would have continued.
  7. [110]
    When police arrived to apprehend the applicant, she poured GHB down the sink,[70] and, under the guise of saying goodbye to her 14 year-old daughter, secreted $80,000 from the trafficking in the daughter’s backpack so police would not find it.  Whilst in custody the applicant continued the business, in the sense of chasing debts.  On intercepted phone calls whilst in custody the applicant boasted of how she had got away with more than the police found, and openly said that when she got out she would do it again.
  8. [111]
    Of great concern was the applicant’s attempt to pervert the course of justice.  The applicant took persistent steps to have another person falsely admit to offences concerning the applicant’s dangerous driving of a car when evading police.  Those steps included the provision of a false affidavit.  The applicant paid $5,000 to the other person for the assistance.
  9. [112]
    By way of mitigating factors, the only thing of note is the early guilty plea.  But, there was no remorse and no real sign or steps to rehabilitation.
  10. [113]
    There can be no question but that the trafficking was at the more serious end of the spectrum.  With one caveat, various authorities cited below and to this Court establish that for such offending in relation to the trafficking, the appropriate sentence, after taking into account the guilty plea but before allowance for mitigating factors, would be between 12 to 13 years.[71]
  11. [114]
    The caveat relates to the salutary nature of this particular trafficking offence, that is to say:
    1. (a)
      the current trafficking was carried out while on parole for the 2017 trafficking conviction;
    2. (b)
      the 2017 trafficking was carried out while on parole for the 2014 convictions for burglary, dishonesty and assault offences; and
    3. (c)
      the trafficking business was pursued even after the applicant was placed in custody, at least as far as the pursuit of debts was concerned.
  12. [115]
    No authority was cited as a yardstick for a sentence which had to reflect such pernicious offending as this, particularly with carrying out trafficking in dangerous drugs while on parole for a conviction for trafficking in dangerous drugs.  Section 9(10) of the Penalties and Sentences Act requires that feature to be treated as an aggravating factor.  Added to that is the fact that the current offending revealed a clear escalation in the offending, from street level trafficking fueled by an addiction, to wholesale commercially-driven trafficking to customers who were, themselves, drug dealers.
  13. [116]
    In my view, that calls for a sentence at the upper end of what the authorities indicate as yardsticks for serious trafficking offences.  In my view, the appropriate sentence, before mitigating factors, is one of 13 years.
  14. [117]
    The only real mitigation comes from the early plea.  As was accepted below, and before this Court, there is no demonstrated remorse.  The extent of mitigation depends on the circumstances of the case.[72]  Whilst the community was spared the expense of a trial, there is no remorse and the Crown case was overwhelmingly strong.  In my view, the reduction for the plea can only be relatively moderate.  Thus, it might bring a 13-year sentence down to 11 years.
  15. [118]
    I pause to note that the process of sentencing is, as the High Court have said in Markarian v The Queen,[73] one of instinctive synthesis, and no one sentence is necessarily the only correct one.  Therefore, my reference to the head sentence that might be appropriate or to the sort of discount that might be granted for the plea in this case should not be taken to be a mathematical or linear progression, but rather, as Markarian permits, an exposition of reasoning.
  16. [119]
    The current sentence for the trafficking must be made cumulative upon the 2017 sentence.  That was a sentence of five years and was still being served when the sentence was imposed in this case.
  17. [120]
    The applicant was held on remand for the current offences from 4 December 2019 to 3 May 2021, a total of 517 days.  As Bowskill J said in R v Whitely,[74] the court retains a discretion whether to declare all of such time, or some of it.  Further, as was said by this Court in R v NT,[75] whilst the usual way of taking pre-sentence custody into account is by reducing the head sentence otherwise properly imposable by the time actually served up to the time of sentence, that is not mandatory, and if no allowance is made the sentencing judge should explain why that is being done.
  18. [121]
    In my view, none of that time should be taken into account as time served, for two reasons.  One is that referred to in R v Berns[76] and Whitely,[77] namely that because it was the applicant’s breach of parole and commission of other crimes, leading to suspension and cancellation of the parole, that led to that time being served, it does not fall to be declared as time served: see below in paragraph [125].
  19. [122]
    The second is that it would effectively amount to a double benefit in light of the reduction that is appropriate to make for totality considerations, which I will shortly discuss.  One alternative course open is to take some or all of the 517 days into account be reducing the head sentence, as opposed to declaring the time as time already served.  However, s 159A(1) does not prescribe a preferred or prima facie method of taking the time into account, as was explained by this Court in R v Wilson:[78]

[32] If s 159A(1) were read in isolation from the other provisions of that section, it would be arguable that pre-sentence custody, whether on remand for the subject offences only or whether on remand for those offences and also by way of imprisonment under a previous sentence, is to be treated as imprisonment already served under the sentence unless some good reason is shown why that should not be so. Having regard to the context supplied by the other provisions of the section described in [17] of these reasons, the better construction is that there is no preferred or prima facie position. The same statutory language is used to authorise the making of each form of declaration and the section does not express any guidance for the way in which the discretion to make a declaration should be exercised. In these circumstances, the amendment seems designed to increase the flexibility allowed to sentencing courts to structure sentences in ways that facilitate the imposition of a just penalty in conformity with applicable statutory provisions and common law sentencing principles that are consistent with those provisions.”

  1. [123]
    The approach I intend to follow, that of not declaring the time to be time served but moderating the head sentence to reflect totality considerations, is one of the approaches open to take, as explained in Wilson:[79]

[31] It remains necessary to consider whether s 159A of the Penalties and Sentences Act should be applied in relation to the 288 day period or some part of it. In Whitely, Bowskill J held that the considerations which before the amendment of s 159A(1) informed the determination of a sentence where an offender had been serving another sentence of imprisonment remain relevant to the exercise of the discretion under the amended form of s 159A. Her Honour observed that before that amendment, the time during which the offender had been serving a preceding sentence was “not generally … treated in a like-manner to pre-sentence custody on remand, whether that was formally declarable or not”, but some amelioration of the later sentence might be required to reflect the totality principle having regard to the cumulative effect to the penalties and the need to avoid a crushing sentence. Similarly, in appropriate cases the intended effect of the methodology adopted by the sentencing judge (making an unspecified discount to avoid undue harshness in a sentence imposed after the applicant had spent a substantial period in custody serving the balance of a previous sentence whilst also on remand for the subject offences) might instead be achieved by making a declaration under s 159A(3B).”

  1. [124]
    The issue of totality is one based on familiar authority.[80]  In Mill v The Queen[81] the High Court approved the following statement in Thomas, Principles of Sentencing:[82]

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”

  1. [125]
    As to the issue of totality, in R v Berns Bowskill J (as her Honour then was) said:[83]

“The relevant principles, insofar as the application of the principle of totality in this case was concerned, are summarised in R v McAnally [2016] QCA 329 at paragraphs 41 to 43. Relevantly, when a custodial sentence is to be imposed which will be cumulative upon or which will overlap with an existing custodial sentence, the sentencing judge is required to take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable. That principle is reflected in the requirement under s 9(1)(a) of the Penalties and Sentences Act, as one of the purposes for which a sentence may be imposed on an offender, that it be to punish the offender to an extent or in a way that is just in all the circumstances.”

  1. [126]
    Her Honour then turned to the approach to be followed when taking totality into account:[84]

“The totality principle does not require the later sentencing court to discount the sentence which is otherwise considered appropriate by, for example, reducing it by the precise amount of time the offender has already served under the existing sentence. Time an offender is serving in custody under a previously imposed penalty of imprisonment is not generally treated in a like manner to pre-sentence custody on remand, whether that is formally declarable or not.

As a matter of policy, the reasons why that is so are clear. Such an existing penalty of imprisonment represents the punishment regarded as just and appropriate for separate offending. Where, as here, the offender finds themselves serving all or some of that term of imprisonment, because they have breached their parole or, for that matter, a suspended sentence, by their own further criminal offending, they should not expect the later sentencing court to factor that earlier sentence into account, in some precise mathematical way, by reducing the sentence for the later offending. They are the masters of their own destiny; it is as a result of their continuing criminal offending that they find themselves in this position.

Nevertheless, the requirement to impose a penalty which is just in all the circumstances calls for some amelioration of the later sentence, having regard to the cumulative effect of the penalties imposed and the need to avoid a crushing sentence.”

  1. [127]
    Whilst the learned sentencing judge adverted to the issue of totality,[85] in my view, her Honour did not adequately assess the impact of the total period to be served, and it cannot be discerned what allowance was made for it.

Cumulative effect of the sentences

  1. [128]
    It is important to have in mind the impact of the time to be served under the sentences imposed in 2014, 2017 and the current one.
  2. [129]
    On 19 March 2014 the applicant was sentenced to three years’ imprisonment with parole release on 19 May 2014, about two months later.  A total of 404 days of pre-sentence custody[86] was declared as time served.
  3. [130]
    The applicant was released on 19 May 2014.  Therefore, to that point she had served a total of 404 days plus 61 days, or 465 days.
  4. [131]
    A 28-day suspension order was issued on 12 March 2015, and the applicant was that day returned to custody.  Therefore the applicant had been at large in the community for about nine months and 24 days.
  5. [132]
    She was released back onto parole but did not comply with her conditions.  Parole was cancelled on 18 May 2015, and the applicant was returned to custody on 28 June 2015 and served the remained of that term, ending on 3 July 2017.
  6. [133]
    Upon completing the term of imprisonment for the 2014 sentence, the applicant was then held on remand for the trafficking offences dealt with in July 2017.  That was a total of 22 days.
  7. [134]
    On 26 July 2017 the applicant was sentenced for trafficking and other offences.  The trafficking had commenced on 10 November 2014, and therefore while she was on parole.
  8. [135]
    The sentence imposed on 26 July 2017 was moderated under the totality principle by taking into account that the applicant had served about two years under the 2014 sentence.  The sentencing judge reduced the head sentence to reflect “some of the time you have served in custody” and set a parole eligibility date “slightly earlier than you would receive for pleas of guilty but also, again, taking into account some of the time you have served in custody”.[87]
  9. [136]
    The sentence was five years’ imprisonment, with a parole eligibility date set at 24 December 2017.  The 22 days pre-sentence custody was declared as time served.
  10. [137]
    The applicant was released on parole on 2 January 2018 but returned to custody for non-compliance on 21 November 2018.  She was released again to parole on 18 March 2019, having been in custody for about four months in the interim.
  11. [138]
    The current trafficking started on 13 June 2019, about three months after the applicant’s release on parole.  Parole was indefinitely suspended on 4 December 2019 and she went back into custody on 5 December 2019.
  12. [139]
    So, in 2019 the applicant had been at large in the community for seven and a-half months before she was sent back to serve out the whole of the 2017 sentence.
  13. [140]
    Therefore the total period spent, and to be spent, in custody can be (somewhat imperfectly) summarised as set out below.
  14. [141]
    The 2014 sentence: three years under the 2014 sentence, ending 3 July 2017.  That included the 404 days from 8 February 2013 until the 2014 sentence.  In chronological terms, the time period it took to actually serve that sentence (19 March 2014 until 3 July 2017) is three years and 106 days; the extra time reflects the cancellation of parole.
  15. [142]
    The 2017 sentence was five years, including the 22 days pre-sentence custody while on remand after the end of the 2014 sentence.  The end date for that sentence is 27 December 2022.  Chronologically speaking, that is a period of five years and 154 days (from 26 July 2017 to 27 December 2022).  Once again, the extra time it has taken, and will take, to serve that sentence reflects the cancellation of parole.
  16. [143]
    The current sentences were each cumulative upon the 2017 sentence, 10 years with eight years to serve on Count 1, plus two years on Count 3.
  17. [144]
    The amended sentence certificate[88] also starkly shows the overall effect of the combined sentences for 2014, 2017 and the present sentence.  Knowing that actual custody commenced on 8 February 2013 it shows:
    1. (a)
      the period of imprisonment commenced on 19 March 2014, and is a total period of 18 years, six months and four days;
    2. (b)
      parole eligibility is set at 6 January 2031; and
    3. (c)
      the fulltime discharge date is 3 May 2033.
  18. [145]
    On that basis if the applicant achieved parole on 6 January 2031, she will have been in actual custody for more than 80 per cent of the sentences imposed on her.
  19. [146]
    Once one understands that the period to be served under the combined sentences is more than 18 years, totality considerations become prominent in assessing the appropriate sentence.  Such a period is greater than is often served on a sentence for murder.  And, as can be seen, the applicant under the current sentence cannot apply for parole until 6 January 2031, that is, after eight years’ imprisonment.  In my view, the crushing nature of that combination calls for appropriate amelioration.
  20. [147]
    Because of the cumulative effect of the 2014 and 2017 sentence in terms of time to be served (over eight years) and the added impact of the additional time under the current sentence, I would moderate the sentence to reflect both the plea and the totality considerations, by reducing the sentence on Count 1 to nine years and six months.
  21. [148]
    The effect of this approach means that there is no automatic declaration of the offence as a serious violent offence.  No submissions were made that an SVO should be declared if the sentence went below 10 years.  But the fact that the sentence is below 10 years also means that the Court has a discretion as to the setting of a parole eligibility date.  That date must be one which is set by reference to the entire period under the three sentences, that is, the commencement of the 2014 sentence.
  22. [149]
    There are no compelling factors in the applicant’s favour.  To the contrary the applicant’s conduct in defiance of the law was pernicious and persistent, even after being taken into custody and involving a blatant attempt to pervert the course of justice.  There can be no doubt that she is a person who should be under supervision to the greatest extent.  The parole eligibility date must be set by reference to the entire period of imprisonment,[89] which includes the 2014, 2017 and the current sentence.  I pause to note that the 2017 sentence had a fulltime discharge date of 27 December 2022 prior to the current sentence.[90]  I would therefore set parole eligibility at six years from the end of that sentence, that is, 27 December 2028.
  23. [150]
    There was no real contention that the sentences on the other counts were in any way inappropriate.  In particular, on Count 3, the comparative authorities of R v Cottell,[91] Ross v Commissioner of Police[92] and R v Ensbey; Ex parte Attorney-General (Qld)[93] support the sentence of two years’ imprisonment.
  24. [151]
    I would affirm the sentences on all other Counts.
  25. [152]
    I propose the following orders:
  1. Leave to appeal against sentence granted.
  1. Appeal allowed.
  1. Set aside the sentence imposed in respect of Count 1 on 4 May 2021.
  1. On Count 1 the appellant is re-sentenced to nine years and six months’ imprisonment, to be served cumulatively upon the sentence imposed on 26 July 2017.
  1. For the purpose of s 159A(3A) of the Penalties and Sentences Act 1992, declare that the time the appellant was held in custody from 4 December 2019 to 3 May 2021, a total of 517 days, is not to be taken to be imprisonment already served under the sentence.
  1. The date the appellant is eligible for parole is fixed at 27 December 2028.
  1. [153]
    MULLINS JA:  I agree with Morrison JA.
  2. [154]
    BOND JA:  I agree with the reasons for judgment of Morrison JA and with the orders proposed by his Honour.

Footnotes

[1]  Which were particulars of the trafficking charge.

[2]  The agreed schedule referred to the lawyer representing the applicant but in context it must have meant Davis.

[3]  Once again the agreed schedule referred to the applicant paying the applicant but in context it must have meant Davis.

[4]  Which were particulars of the trafficking charge.

[5]  In the sense explained in House v The King (1936) 55 CLR 499 at 505.

[6] Justice and Other Legislation Amendment Act 2020 (Qld), s 164.

[7]  [2021] QSC 154.

[8]  As her Honour then was.

[9] Whitely at [12]-[18].

[10] Whitely at [18].

[11]  Exhibit 3, AB 89-91.  Though the pre-sentence custody certificate shows custody commenced on 5 December 2019 it is apparent from the agreed statement of facts that the applicant was taken into custody on 4 December 2019.

[12]  Applicant’s outline paragraph 12.3.

[13]  Emphasis added.

[14]  AB 45 lines 46-48.

[15]  AB 46 lines 32-38.

[16]  AB 46 line 47 to AB 47 line 2.

[17]  AB 50 lines 36-43.

[18]  AB 51 lines 1-10.

[19]  AB 51 lines 43-45.

[20]  Applicant’s outline paragraph 15.1.

[21] House v The King (1936) 55 CLR 499 at 505.

[22] Corrective Services Act 2006 (Qld), s 182(2).

[23]  AB 52 line 27 to AB 53 line 5.

[24]  Affidavit of Ms Larsen affirmed 13 January 2022, Exhibit “NCL-1”.

[25]  Applicant’s outline paragraph 14.1.

[26] House v The King (1936) 55 CLR 499 at 505.

[27]  AB 46 lines 44-47; AB 51 lines 7-10; and AB 51 lines 43-45.

[28]  [2018] QCA 106.

[29] R v Armitage; R v Armitage; R v Dean [2021] QCA 185.

[30]  [2017] QCA 258.

[31]  [2013] QCA 402.

[32]  Applicant’s outline paragraphs 13.1- 13.5.

[33] NT at [28]-[30]; citations omitted.

[34]  Applicant’s outline paragraph 13.3.

[35] Whitely at [18]-[20].

[36]  AB 51 lines 39-41.

[37]  AB 50 lines 36-46 AB 51 lines 12-17.

[38]  AB 51 lines 1-10.

[39] NT at [30].

[40]  AB 51 lines 45-48.

[41]  Crown AB 23 line 46; defence AB 27 lines 41-45.

[42]  That start point of 12 years for Count 1 plus two years for Count 3.

[43]  Applicant’s outline paragraphs 15.2-15.6.

[44]  (2000) 110 A Crim R 348.

[45]  [2017] QCA 258 at [92].

[46]  [2008] QCA 332.

[47]  [2017] QCA 258 at [92].

[48]  [2016] QCA 206 at [4] per Fraser JA.

[49] House v The King at 505.

[50]  Internal citations omitted.

[51] R v Minniecon [2017] QCA 29 at [22].

[52]  AB 51 lines 12-17.

[53]  AB 51 line 13.

[54]  AB 51 line 16.

[55]  (1998) 194 CLR 656 at [22].

[56]  Grounds 1 and 3, and the failure to make orders in accordance with 156A of the Penalties and Sentences Act.

[57] Kentwell v The Queen (2014) 252 CLR 601 at [35], [40] and [42].

[58]  Applicant’s outline paragraphs 17.2-17.3.3

[59]  By imposing a three-year sentence rather than four years.

[60]  [2019] QCA 100.

[61]  [2008] QCA 341.

[62]  [2020] QCA 36.

[63] Mill v The Queen (1988) 166 CLR 59 at 63; Postiglione v The Queen (1997) 189 CLR 295 at 304.

[64] R v Berns [2020] QCA 36 at 6-7.

[65]  [2009] QCA 398.

[66]  [2019] QCA 96.

[67]  [2004] QCA 335.

[68]  See Exhibit NCL-1 to the affidavit of Ms Larsen.

[69]  This led to her mother being charged with money laundering.

[70]  In itself, the offence of damaging evidence.

[71]  See R v Berns [2020] QCA 36; R v Rodd; Ex parte Attorney-General (Qld) [2008] QCA 341; R v Nunn [2019] QCA 100; R v Markovski [2009] QCA 299 at [53]; R v Kalaja [2012] QCA 329; R v Versac [2014] QCA 181; and R v Milos [2014] QCA 314.

[72] Siganto v The Queen (1998) 194 CLR 656.

[73] Markarian v The Queen (2005) 228 CLR 357.

[74] R v Whitely [2021] QSC 154 at [12]-[18].

[75]  [2018] QCA 106 at [28]-[30]. Footnotes omitted.

[76]  [2020] QCA 36 at pp 6-7.

[77] Whitely at [36].

[78]  [2022] QCA 18 at [32].

[79] R v Wilson [2022] QCA 18 at [31]. Footnotes omitted.

[80] Mill v The Queen (1988) 166 CLR 59 at 63; Postiglione v The Queen (1997) 189 CLR 295 at 304.

[81]  (1988) 166 CLR 59 at 63.

[82]  2nd ed (1979) at 56 – 57. Internal footnotes omitted.

[83] R v Berns [2020] QCA 36 at p 6; emphasis added.  See also R v Wilson [2022] QCA 18 at [26].

[84] R v Berns [2020] QCA 36 at pp 6-7; emphasis added.

[85]  AB 46 lines 35-47; AB 49 lines 38-44; AB 50 line 40 to AB 51 line 10; AB 51 line 40.

[86]  Between 8 February 2013 and 19 March 2014: AB 63.

[87]  AB 87.

[88]  Exhibit NCL-1 to the affidavit of Ms Larsen.

[89] R v Degn (2021) 7 QR 190 at [9].

[90]  The learned primary judge was wrongly led to believe that the date was 6 July 2022 because of a miscalculation in the original sentence certificate, AB 90.  The miscalculation came about because the certificate did not take into account 174 days that had to be served because of the automatic cancellation of parole that resulted from the sentence on 4 May 2021.

[91]  [2009] QCA 398.

[92]  [2019] QCA 96.

[93]  [2004] QCA 335.

Close

Editorial Notes

  • Published Case Name:

    R v Campbell

  • Shortened Case Name:

    R v Campbell

  • MNC:

    [2022] QCA 135

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Mullins JA, Bond JA

  • Date:

    02 Aug 2022

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2021] QSCSR 15404 May 2021Sentenced to 10y (automatic SVO) for trafficking and cumulative 2y for attempt to pervert and other charges, each cumulative upon extant 5y for trafficking (itself cumulative); sophisticated wholesale trafficking over 6m for significant profit, while on parole for trafficking, involving threats and chasing debts after arrest; paid another to falsely admit to dangerous driving while evading police; 35yo, early pleas, no remorse; 517d on remand while serving extant sentence (Williams J).
Notice of Appeal FiledFile Number: CA144/2127 May 2021Application for leave to appeal sentence filed.
Appeal Determined (QCA)[2022] QCA 13502 Aug 2022Application for leave to appeal granted, appeal allowed; Crown conceded that sentencing judge erred in stating that no PSC could be declared, failing to consider automatic cancellation of parole when offending occurred, and not formally ordering trafficking sentence to be cumulative upon extant sentence; resentenced on trafficking count to 13y, mitigated for pleas and totality to 9.5y, with PED after 6y thereof, and declaration of no time served: Morrison JA (Mullins and Bond JJA agreeing).

Appeal Status

Appeal Determined (QCA)

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