R v Tilling[2022] QCA 5

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS JA:  Mr Tilling pleaded guilty to three counts of supplying a dangerous drug (counts 1-3), one count of possessing a dangerous drug MDMA in excess of two grams (count 4), two counts of possessing a dangerous drug (counts 5 and 6), one count of possessing a thing (a mobile phone) used in connection with supplying a dangerous drug (count 7) and one summary charge possessing utensils or pipes etc for use which related to a set of scales, a container, a glass and a scoop for use in connection with the consumption of a dangerous drug.
2. [2]
   Mr Tilling was sentenced on 13 August 2021 to imprisonment of three months for each of counts 1-3, 5 and 6.  He was sentenced to imprisonment of 15 months for count 4.  All sentences are concurrent.  He was convicted and not further punished for count 7 and the summary charge.  He was given an immediate parole release date.
3. [3]
   Mr Tilling applies for leave to appeal on the following grounds:

   1. (a)
      Ground 1 - The learned sentencing judge erred by unduly fettering the sentencing discretion or by treating the quantity of drug as the predominant factor.
   2. (b)
      Ground 2 - The sentencing judge erred by failing to take into account material considerations or alternatively failing to provide Mr Tilling procedural fairness.
   3. (c)
      Ground 3 - The sentencing judge made a material error of fact regarding count 1.
   4. (d)
      Ground 4 - Each sentence of imprisonment is manifestly excessive.
4. [4]
   Mr Tilling was stopped by police on 28 September 2019 which was soon after he had turned 19 years old.  He consented to being searched.  Police located the drugs the subject of counts 4-6 and the phone the subject of count 7 during that search.  A later analysis of the phone showed Mr Tilling had offered to supply cannabis on 21 September 2019 (count 1), sold five capsules containing MDMA for $100 on 22 September 2019 (count 2) and on the same day offered to supply another person capsules containing MDMA.  The pure amount of MDMA of which he was in possession on 28 September 2019 was 5.798 grams.  There were 7.857 grams of powder inside his carry bag that had been cut with sugar and contained only 0.581 grams of pure MDMA.  There were 30 powder filled capsules containing MDMA in one of his pockets.  The powder inside the capsules weighed 4.167 grams.  It had been cut with sugar and only contained 0.308 grams of pure MDMA.  There was a rock weighing 7.188 grams containing MDMA inside a tin that was inside his carry bag.  The rock contained 4.909 grams of pure MDMA.  The sentencing for count 4 proceeded on the basis that the drugs were possessed for a commercial purpose, as they were found with a quantity of sugar that was the cutting agent that had been used.  A small quantity of cocaine that was within white powder weighing 0.345 grams was the subject of count 5.  Cannabis weighing 28 grams was the subject of count 6.
5. [5]
   When this offending was detected, Mr Tilling was on bail for an offence of wilful damage committed on 13 April 2019 and assault occasioning bodily harm committed on 21 April 2019 for which he was dealt with in the Magistrates Court on 27 November 2019 when he was given a probation order for 18 months and no conviction was recorded.  The victim of the assault was a former domestic partner.  He was also dealt with in the Magistrates Court on 7 April 2021 for breach of bail committed on 30 March 2020 (which I infer related to the subject offending) for which he was fined $450 and no conviction was recorded.  Further minor offending was committed in May 2020, including possessing 3.9 grams of cannabis and possessing 12 tablets (containing alprazolam) for which he was dealt with in the Magistrates Court on 28 May 2021 when he was given a probation order for 12 months and no conviction was recorded.
6. [6]
   The report obtained from Community Corrections in respect of the first probation order imposed on Mr Tilling showed that he had identified needs in relation to substance use and domestic violence.  He was referred to the Noffs Foundation to address substance use and attended all sessions as directed, but for one session.  He failed to report as directed to Community Corrections on five occasions and the probation order was completed without formal action being taken.  In respect of the second probation order, Mr Tilling re-engaged with the Noffs Foundation on 4 August 2021, failed to report as directed on one occasion on 21 July 2021, but re-engaged quickly, and was therefore considered suitable for future community-based orders.
7. [7]
   The sentencing proceeded on the basis that Mr Tilling’s pleas of guilty were early.  Both the prosecutor and Mr Edridge of counsel (who also appeared for Mr Tilling at the sentencing hearing) relied on written submissions filed before the sentencing judge.  Mr Tilling relied on character references from his parents and from his employer who had engaged him as an apprentice roofer.  These references indicated there had been a positive change for Mr Tilling after commencing his roofing apprenticeship, having a new girlfriend and not associating with friends who had been involved with drugs.  A letter was tendered from the Noffs Foundation that set out the four dates in July and August 2021 on which Mr Tilling had attended for drug and alcohol counselling and noted that he had engaged well with counselling.
8. [8]
   The prosecutor submitted that imprisonment for a term of 18 months to two years should be imposed for count 4, but that it was open for the Court to release Mr Tilling immediately on parole due to his youth.  The submissions on behalf of Mr Tilling acknowledged the seriousness of count 4, but relied on the application of s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) that imprisonment should only be imposed as a last resort and a sentence which allowed Mr Tilling to stay in the community was preferable.  Mr Edridge’s written submissions before the sentencing judge recorded that Mr Tilling’s girlfriend was expecting their first child and contained additional information from Mr Tilling about his drug use.  When the relationship with his former domestic partner ended in early 2019, Mr Tilling began using MDMA heavily and regularly and by September 2019 he was able to use as much as three grams of MDMA each time.  After trying cocaine for the first time on his 19th birthday, he became dependent upon that drug in place of MDMA.  Mr Tilling’s instructions were that, on 28 September 2019, he was going to a music festival and was in possession of the drugs to use them himself and to sell to his immediate friends.  Mr Tilling instructed that he was engaging in that activity for the convenience of his friends who were drug users and to fund his own personal use.  He also instructed that he had not used cocaine since the end of 2020.  Mr Edridge’s written submissions emphasised Mr Tilling’s strong prospects for rehabilitation and sought the imposition of a substantial order for probation and community service.  In the alternative, if the sentencing judge concluded that imprisonment was required, the submission was made for a wholly suspended sentence coupled with probation rather than an order for immediate parole, as an order for immediate parole carried a greater risk of immediate imprisonment upon any breach of the parole.  When pressed during oral submissions as to the length of the term of imprisonment that would be appropriate, Mr Tilling submitted that it should be in the order of nine to twelve months.
9. [9]
   In the sentencing remarks, the sentencing judge recited the facts of the offending.  The sentencing judge referred to the evidence being found on the phone of two very small actual supplies which were the basis of counts 1 and 2 and a deemed supply was the basis of count 3.  That was the error that is now the subject of ground 3.  There was one actual supply (count 2) and both counts 1 and 3 were based on offers to supply.  That ground can be disposed of immediately, as it was not a misstatement of fact that affected the sentencing outcome.  It is apparent from the sentencing structure that whether count 1 was a deemed supply or the “very small actual” supply described by the sentencing judge, the outcome of the sentencing for count 1 and the effective head sentence would have been no different, as the same sentence was imposed for count 1, as it was for the deemed supply that was count 3.
10. [10]
    The sentencing judge recited Mr Tilling’s antecedents and was not prepared to dismiss his criminal history as an irrelevant minor criminal history, because of the offence of violence for which he was on bail when he committed the subject offending.  The sentencing judge gave credit for the early plea and accepted that Mr Tilling was a drug dependent person when he committed the offence, which had the effect of reducing the maximum imprisonment for count 4 to 20 years.  The sentencing judge accepted that the offending was “the sort of naive and innocent kind of offending that a young person gets involved in”.  The sentencing judge noted the impressive references, that there were protective factors for Mr Tilling to get in with people like his employer who think sensibly, getting a job and starting off in a mainstream way of life, that Mr Tilling had engaged in drug and alcohol counselling and had strong family support.  The sentencing judge rejected Mr Edridge’s submissions on sentence as being “unrealistically lenient”, as there was a commercial possession and “some little supplies”.  The offending was characterised at the lower end of serious offending.  In order to keep Mr Tilling out of prison, he was given an immediate parole release date.
11. [11]
    There are two aspects of the sentencing relied on by Mr Tilling to support ground 1.  It is submitted that the sentencing judge erred by fettering the sentencing discretion by not considering the community-based orders that were available as a sentencing option for Mr Tilling and by treating the quantity of the drug as the predominant factor.
12. [12]
    This was a straightforward sentencing where the various factors to be balanced in sentencing Mr Tilling were canvassed comprehensively in the parties’ written and oral submissions and were well known to the experienced sentencing judge.  The fact that the sentencing judge formed the view during the sentencing after consideration of these submissions that a sentence of imprisonment was appropriate for the seriousness of the offending in the circumstances, despite Mr Tilling’s youth, does not mean the sentencing judge had not considered the possible sentencing options to the extent required by the nature of the offending and Mr Tilling’s personal circumstances.  It is also an unfair characterisation of the sentencing judge’s sentencing remarks to submit that the quantity of the drug MDMA was treated as the predominant factor.  It was an important factor, as the quantity exceeding two grams resulted in count 4 being charged as an aggravated possession which affected the maximum term of imprisonment.  The sentencing remarks show the sentencing judge took into account that factor together with all the other factors that were relevant to the exercise of the sentencing discretion.  Ground 1 has no substance.
13. [13]
    In respect of ground 2, it is asserted that the sentencing judge erred by failing to take into account material considerations that tended to mitigate punishment.  Mr Tilling relies on the principles concerning the imprisonment of youthful first offenders with promising prospects of rehabilitation: see R v Mules [2007] QCA 47 at [21].  First, Mr Tilling was on bail for the offence of violence concerning his former domestic partner when he committed the subject offending.  Second, the question of his youth was the subject of submissions before the sentencing judge and a matter that was expressly taken into account in the sentencing.  The sentencing judge was cognisant of the benefit in keeping Mr Tilling out of prison by imposing an immediate parole release date which was expressed in the sentencing remarks in terms of enabling him to return home with his family.  The alternative argument put by Mr Tilling in connection with ground 2 is that the sentencing judge failed to provide the applicant procedural fairness in not referring to material factual allegations advanced on Mr Tilling’s behalf that were not referred to in the sentencing remarks.  The sentencing judge adequately summarised the material put before the Court.  It is argued that the sentencing judge did not refer to the allegation that Mr Tilling was able to use up to three grams of MDMA on each occasion and the submission is put that tended to lessen the objective seriousness of the offending.  First, the sentencing judge found that Mr Tilling was drug dependent at the time of the offending.  Second, that fact did not reduce the seriousness of the commercial aspect of the possession of almost 5.8 grams of MDMA which Mr Tilling acknowledged was for his own use and to sell to his immediate friends for their use which would fund his personal use.  Mr Tilling does not succeed on ground 2.
14. [14]
    In relation to ground 4, it is submitted that each sentence of imprisonment was manifestly excessive.  Although Mr Edridge asserted before the sentencing judge and on this application that he was unable to locate any comparable Court of Appeal authority, there are many Court of Appeal authorities on the aggravated possession of a schedule 1 drug that give some guidance to the sentence appropriate to Mr Tilling’s offending and circumstances, with appropriate allowance being made to the extent the authorities are not entirely comparable to Mr Tilling’s case.
15. [15]
    The offender in R v Lemmar [2017] QCA 34 was a mature offender of 44 years who pleaded guilty to the aggravated possession of a schedule 1 drug methylamphetamine, the pure amount of which was 3.272 grams, and two counts of supply.  For the aggravated possession she was sentenced to 20 months’ imprisonment with an immediate parole release date.  She had no prior criminal history and the possession of the methylamphetamine was for a commercial purpose, as the offender intended to share it with friends at New Year’s Eve celebrations.  The sentencing proceeded on the basis that she was not drug dependent.  She was unsuccessful in her application for leave to appeal the sentence for the aggravated possession.
16. [16]
    The aggravated possession of MDMA (3.3 grams), possession of 1.97 grams of cocaine and possession of very small amounts of psilocybin mushrooms, cannabis and cannabinol oil by the 30 year old offender in R v Kopjar [2021] QCA 219 were for his personal use at an arts and music festival.  He had no prior criminal history.  He was unsuccessful in applying for leave to appeal against the sentence of 18 months’ imprisonment with immediate release on parole for the aggravated possession.
17. [17]
    The offending in both these cases was less serious than Mr Tilling’s offending, but they support the lesser sentence imposed on Mr Tilling which made allowance for his youth.
18. [18]
    Mr Tilling has not shown that the sentences imposed on him were unreasonable or plainly unjust.  The application for leave to appeal should be refused.
19. [19]
    SOFRONOFF P:  I agree.
20. [20]
    KELLY J:  I agree.
21. [21]
    SOFRONOFF P:  The application is refused.