R v Alt[2022] QCA 182

[2022] QCA 182

COURT OF APPEAL

MULLINS P

JACKSON J

CROW J

CA No 80 of 2022

DC No 6 of 2022

THE KING

v

ALT, Julien Michael Applicant

BRISBANE

WEDNESDAY, 21 SEPTEMBER 2022

JUDGMENT

CROW J:  On the 28th of March 2022, the applicant pled guilty to one count of trafficking in a dangerous drug, one count of possession of a dangerous drug in excess of 500 grams and one count of possessing property obtained by supplying a dangerous drug.  On the sentencing submissions, the Crown tendered several exhibits including a statement of facts.  The Crown sought a head sentence in the order of four years’ imprisonment and submitted that “supervision may be an important part of his sentence structure…”.^[1]

The applicant made timely pleas of guilty in the face of a strong case against him.  Before the sentencing judge, defence counsel for the applicant conceded that the proper range was a head sentence of three to four years.  Defence counsel referred to R v Broad & Prior [2010] QCA 53 and R v Falconi [2014] QCA 230.  Defence counsel submitted to the sentencing judge that her Honour could structure an appropriate sentence which had regard to all the features of the sentence that her Honour’s required to attend to.  That would mean that he does not undertake immediate imprisonment.  The primary judge adjourned the sentence to consider the materials and submissions and delivered her sentence on the 29th of March 2022, sentencing the applicant on count 1, trafficking count, to three and a-half years’ imprisonment, to be suspended after serving 12 months’ imprisonment with an operational period of three and a-half years.  In respect of counts 2 and 3, the applicant was convicted but not further punished.

The sole ground of appeal is that the sentence was manifestly excessive.  The applicant does not take issue with the head sentence of three and a-half years’ imprisonment but rather submits the failure by the primary judge to accept trial counsel’s submission, that the applicant ought not to have been required to serve time in prison, was manifestly excessive and, that in the proper exercise of the sentencing judge’s discretion, that applicant ought to have been subject to immediate parole or suspension.

The applicant complaints that the primary judge did not expressly address the submission made on behalf of the applicant to the primary judge that his prospects of rehabilitation warranted consideration of immediate release on parole or a suspended sentence.  It is correct to submit that the primary judge did not expressly refer to that submission, however, the primary judge did give sound reasons for rejecting that submission where her Honour reflected that deterrence was clearly an important consideration in relation to those who conduct criminal enterprises solely for commercial gains.^[2]

The applicant submits that the primary judge did not undertake a real consideration of the applicant’s submissions, however, the primary judge did make reference to each of the matters submitted by the applicant to the primary judge as features relevant to a just sentence.  The applicant submitted that a period of supervision was appropriate to support the applicant’s efforts to remain free of his former drug associates such that the Court ought to have immediately suspended the sentence on count 1 and placed the applicant on probation on counts 2 and 3.  Whilst it may be accepted that often a period of supervision is appropriate to support a person who has had difficulties with addiction to dangerous drugs, that is not an inflexible rule.  The primary judge made reference to the psychologist report upon the applicant, tendered before the primary judge, which concluded that the applicant’s prognosis was considered to be optimistic.  The psychologist expressly identified two factors which would reduce the likelihood of recidivism as being, unremarkably, maintained absence from drug use and the avoidance of contact with drug associates.

Although the making of probation orders in respect of counts 2 and 3 may have been open, it was on the facts, which were presented to the primary judge, not a necessary order.  In R v Gibson & Anor [2008] QCA 367, President McMurdo said, at page 7:

“Their enterprise was motivated solely by greed. Those who participate in such activities in such circumstances can expect that there is a real likelihood they will be apprehended and convicted, in which case they will be sentenced to heavy terms of imprisonment. They must understand that on a cost benefit analysis, the ultimate consequences for them will heavily outweigh any short-term profits.”

Prior to pronouncing sentence upon the applicant, the primary judge expressly took into account the following factors.

Firstly, the high commercial nature of the trafficking.  As recounted by the primary judge, the applicant and his friend commenced a joint venture to import 59.8 kilograms of cannabis from South Australia to the Gold Coast, to be supplied to a distribution network of suppliers.  The joint venture had pre-sold some of the cannabis and had, at the time of apprehension, a sum of approximately $110,000 in cash.  The 59.8 kilograms was valued anywhere between $225,000 and $525,000.  The applicant had a stated commercial financial goal of a profit of approximately $300,000.  The applicant had travelled to and from South Australia on multiple flights prior to the importation in order to organise the import and had transferred $11,000 in cash to his co-accused in the days prior to the import.  With such large amounts of money being involved, police found a money counting machine.  The applicant and his male co-accused were caught with 29.6 kilograms of cannabis and the female co-accused was apprehended with a further two boxes containing some 31 kilograms of cannabis.

Secondly, that a sentence of imprisonment ought to be imposed as a last resort.

Thirdly, that the sentence imposed must punish the applicant in a way that was just in the circumstances and be proportionate to the offending.

Fourthly, that personal deterrence had some role to play given the applicant had a limited criminal history for drug offending.  The applicant was 33 years old at the time of the offending and had a criminal history of a dated and minor nature, that is, possession of dangerous drugs in August 2007.

Fifthly, that general deterrence is an important consideration in relation to those who conduct criminal enterprises solely for commercial gain as deterrence becomes proportionately more important the higher the level of trafficking.

Sixthly, her Honour read and considered several comparable cases as yardsticks.

Seventhly, the applicant had entered a timely plea of guilty described as a feature of mitigation in the context of a strong Crown case, however, the timely plea did save the State the time, resources and expense of preparing for trial.

Eighthly, that a term of actual custody may involve necessary restrictions in a prison environment to safeguard the health of all prisoners in the context of COVID.

Ninthly, that the applicant was remorseful and ashamed of his involvement in the offending.

Tenthly, the applicant’s excellent work antecedents and support of employ references.

The 11th factor, the applicant’s family circumstances, that is, he had to support his partner and he was actively involved in the life of his ten-month-old son.

The 12th factor, the circumstances of the applicant’s wife, namely, her desire to return to fly-in, fly-out work after a year off for maternity leave, which was taken into account and not allowed to overwhelm the punishment.

The 13th factor, that the applicant had a long standing drug problem, having commenced smoking cannabis in his adolescence and this continued on a daily basis to his early adulthood, recommencing in 2020 as the applicant’s financial debts amounted.

The 14th factor, the applicant had a past history of dependence on methamphetamine.

The 15th factor, that a psychologist considered that the origins of the applicant’s offending was linked to his illicit substance use.

The 16th factor, that the applicant was now abstaining from the use of illicit substances and that the risk of recidivism depended on the applicant maintaining a sustained absence from drug use and avoiding contact with drug associates such that the psychologist opined the prognosis to be optimistic.

A review of the primary judge’s sentencing remarks shows that her Honour expressly referred to all of the relevant features that could have impacted upon the proper sentence and then conducted an instinctive synthesis that led to the sentence imposed.  Although the trafficking was over a confined period of about three weeks, the quantity of cannabis acquired was significant and the applicant was motivated by profit and was not a youthful offender.  I am not persuaded the sentence, that the applicant be required to serve 12 months in custody of a sentence of a three and a-half years’ imprisonment, was unreasonable or plainly unjust.  The application for leave to appeal against the sentence will therefore be refused.

MULLINS P: I agree.

JACKSON J: I agree.

MULLINS P: The order of the Court is application for leave to appeal refused.  Thank you.  The Court has to reconstitute for the next appeal so we will adjourn for 10 minutes.