R v Walker[2022] QCA 54

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with the reasons for judgment of Mullins JA and the order proposed by her Honour.
2. [2]
   MULLINS JA:  The applicant pleaded guilty on 20 April 2021 to one count of trafficking in a dangerous drug between 8 November 2018 and 31 January 2019 (count 1), two counts of the aggravated possession of the dangerous drug methylamphetamine (counts 2 and 7), two counts of possessing a thing used in connection with trafficking in a dangerous drug (counts 3 and 8), two counts of possessing dangerous drugs (counts 4 and 9), one count of possess shortened firearm (count 5) and one count of dangerous operation of a vehicle with a circumstance of aggravation (count 6).  On the same occasion, he was also dealt with for committing an offence punishable by imprisonment during the operational period of five years of an effective sentence of four years’ imprisonment that had been imposed by North J in the Supreme Court at Mackay on 22 November 2017.
3. [3]
   It was a contested sentence hearing, as there were two facts that arose from the prosecution’s schedule of facts that were disputed by Mr Walker and were identified as:

   1. (a)
      the authorship of the “tick sheet” located on 11 January 2019; and
   2. (b)
      that Mr Walker was sourcing half a kilogram twice a week during the trafficking period.
4. [4]
   In strict terms, the prosecution’s schedule of facts did not allege that Mr Walker authored the tick sheet located on 11 January 2019, but asserted that Mr Walker was supplying on tick and that the tick sheet located on 11 January 2019 indicated what he was owed and tracked where he had supplied quantities of 500 grams of methylamphetamine.
5. [5]
   Material was tendered for the purpose of the contested hearing and it was not necessary for either party to call witnesses.  Mr Walker relied on a report dated 29 January 2021 from document examiner, Mr Heath, who could not reach a conclusion as to the authorship of the tick sheet based on the limited handwriting on the tick sheet.  After submissions from the prosecutor and Mr Walker’s counsel who appeared for him at the sentence hearing (who is not the counsel appearing on the application in this court), the primary judge found that Mr Walker was the author of the tick sheet and acquired 500 grams of methylamphetamine from his supplier in Yeppoon on each of two occasions, one of which was on or about 23 or 24 December 2018 and the other was on or about 27 December 2018.  The sentencing judge found that Mr Walker made five trips to Yeppoon during the trafficking period, but it was only established on the evidence that there were those two occasions when Mr Walker obtained as much as 500 grams on each of those occasions.  Mr Walker was therefore unsuccessful on one contested fact, but substantially successful on the other fact, as the prosecution did not succeed on its interpretation of the tick sheet that the figure “1” recorded each time a supply of 500 grams was made and the figure “?2” recorded a supply of 250 grams.  The sentencing proceeded on the basis that Mr Walker supplied at least 1.18 kgs of gross substance containing methylamphetamine over the trafficking period, rather than the supply of 5 kgs that was contended for by the prosecution in reliance on the prosecution’s interpretation of the tick sheet.
6. [6]
   Mr Walker was sentenced to imprisonment for 10 years for count 1 and it was declared that he had been convicted of a serious violent offence.  In respect of each of counts 2-5 and 7-9, he was convicted and not further punished.  In respect of count 6, he was convicted and disqualified from holding or obtaining a driver’s licence for a period of six months.  The balance of the sentence imposed on 22 November 2017 was activated (which was approximately two years and eight months) and ordered to be served concurrently with the sentence of 10 years.  A pre-sentence custody declaration was made in respect of the 811 days spent in pre-sentence custody between 30 January 2019 and 19 April 2021.
7. [7]
   There are two grounds relied on for the application:

1. The learned sentencing judge erred by impermissibly reducing the mitigatory value of Mr Walker’s plea of guilty by reason of the unsuccessful contest of the authorship of the tick sheet.
2. The sentence was manifestly excessive.

Circumstances of the offending

8. [8]
   The factual basis for the sentencing was as follows.  The police were conducting an operation in the Mackay and Whitsunday area that was targeting distribution of methylamphetamine.  From the intercepted calls of the initial target, it was identified that Mr Walker supplied the initial target with methylamphetamine.  Mr Walker then became a principal target of the operation.  Count 1 proceeded on the basis that Mr Walker trafficked wholesale quantities of methylamphetamine between Bowen, Airlie Beach and Mackay.  He sourced the drugs from an unknown supplier in Yeppoon and advertised to his contacts that he had sourced large amounts.  On one occasion he told one Nielsen that he would put “half a kilo straight up” on a set of scales and told another contact that he was driving with a “life sentence” and sent a video on his phone in which he handled a large clip seal bag of methylamphetamine with the caption “1/2 kg Just a casual half kilo”.  Mr Walker primarily sold to five other suppliers, one of whom was his girlfriend (the girlfriend).  On 2 January 2019, he suggested, in effect, to the girlfriend that he was getting “half a kilo” twice per week from his supplier.  On two occasions Mr Walker supplied street level quantities to end users.  The girlfriend primarily sold “balls” where one ball was 3.5 grams.  Mr Walker used encrypted messaging applications to communicate with customers, but during telephone calls with customers he otherwise had not adopted sophisticated codes or made efforts to conceal his supplies or their quantities.
9. [9]
   Mr Walker supplied wholesale quantities of methylamphetamine for the following prices: $1,500 for 7 grams, $3,500 for a half ounce (14 grams) and between $6,000 and $7,000 for an ounce.  Mr Walker supplied at least 550.42 grams of methylamphetamine in 24 separate transactions receiving at least $97,100 based on prices contemplated in relevant calls and his pricing indicated to customers.  One supply on 23 November 2018 was for 84 grams for a price of $19,500.  There was another supply of 84 grams on 28 January 2019 for $18,000.  He had at least 12 customers to whom he supplied or otherwise completed acts preparatory to supplies of methylamphetamine.  There were occasions in which he supplied others, but the weight of the drug was unknown.  Mr Walker supplied on tick and had tick sheets recording debts owed to him.  He collected debts from customers before driving to Yeppoon to obtain drugs.  He had possession of bank cards and when notified by contacts used them to withdraw debts owed to him.  On other occasions, he received messages indicating cash was awaiting his collection from ATMs.  Mr Walker threatened violence where debts had not been repaid, but there is no evidence of actual violence being inflicted.
10. [10]
    On 2 December 2018, police had been aware that Mr Walker had travelled to Yeppoon to purchase methylamphetamine and Sarina police intercepted him by setting up a roadside breath testing site and licence checks on the Bruce Highway. Walker entered the site with the girlfriend in the front passenger seat and they were detained for a search.  In a glasses case inside a toiletry bag, police located two clip seal bags containing methylamphetamine.  In other places, the police located clip seal bags containing methylamphetamine and cash and two cryo-vacuumed sealed bags of methylamphetamine.  In total, 50.41 grams of methylamphetamine was located within 69.8 grams of gross substance.  That was the subject of count 2.  Cash in the sum of $1,050 was located which was the subject of count 3.  Mr Walker was charged with counts 2 and 3 on 2 December 2018 and released on bail.
11. [11]
    After one of the persons to whom he supplied was arrested on 21 December 2018, Mr Walker arranged to keep that person’s weapons for him.  On 11 January 2019 the property at which Mr Walker was staying at Cannonvale was searched and four firearms were located of which the shortened single barrel break action shotgun was the subject of count 5.
12. [12]
    In the same search of the Cannonvale property, clip seal bags containing drugs were found in the bedroom in which it was inferred that Mr Walker was staying.  Very small quantities of MDMA, methylamphetamine, cocaine and the cutting agent methylsulfonylmethane were found in that bedroom which were the subject of count 4.  The tick sheet that was the subject of the contested fact ruling was found in the same place as the drugs which were the subject of count 4.
13. [13]
    On 15 January 2019, police were conducting patrols on the Bruce Highway at Gregory River when Mr Walker drove past in his Mazda coupe and he was travelling at 186 kph (Count 6).
14. [14]
    The police became aware that Mr Walker was travelling on 30 January 2019 to source drugs from Yeppoon.  The police intercepted Mr Walker in his Mazda vehicle at Proserpine and detained him for a search.  Inside the electric window switch on the front passenger door, police located a package holding a substantial amount of methylamphetamine.  Three clip seal bags holding methylamphetamine were also located in the vehicle.  In total, 150.27 grams of methylamphetamine was located within 233.74 grams of gross substance.  This was the subject of count 7.
15. [15]
    On the same day the police executed a search warrant at the residence at which Mr Walker was staying in Cannonvale.  Police located a cryovac machine that was the subject of count 8.  They located two vials, one of which contained testosterone within 9.463 grams of substance and a clip seal bag holding a small amount of methylamphetamine detected within 0.111 grams of substance (also the subject of count 9).  Mr Walker was charged on 30 January 2019 with trafficking (count 1) and offences arising from the search on 11 January 2019 and the search of his car on 30 January 2019.  He was refused bail.  On 4 February 2019 he was charged with the offences arising from the search of the Cannonvale house on 30 January 2019 and was also refused bail.

Mr Walker’s antecedents

16. [16]
    Mr Walker was 29 years old at the time of his offending.  Mr Walker completed year 11.  He completed a carpentry apprenticeship of four years in 2009 with a local builder.  Whilst subcontracting for the builder in early 2015, Mr Walker tore his supraspinatus muscle which ultimately caused him to stop working.  He then started using methylamphetamine with a cousin.  His cousin was involved in a dispute which culminated in Mr Walker’s entering a dwelling on 29 March 2016 for which he was convicted of enter dwelling with intent use/threatens violence whilst armed in company and related offences and convicted at the same time for drug offences, the most serious of which was a commercial possession of methylamphetamine of 6.357 grams out of a total of 10.908 grams of substance on 4 December 2016.  He was sentenced on 22 November 2017 by North J to two years’ imprisonment to be suspended for five years after the 466 days that was served in pre-sentence custody for the enter dwelling and a cumulative term of two years’ imprisonment.  He was released on the day of sentence.  He returned to work for the local builder.  In May 2018 he met the girlfriend who was a user of methylamphetamine.  Although Mr Walker had at that stage been abstaining, by June 2018 he joined the girlfriend in using methylamphetamine and relapsed into heavy use and the trafficking came out of that heavy methylamphetamine use.

Submissions made to the sentencing judge

17. [17]
    The ultimate submissions made respectively on behalf of the Mr Walker and the respondent to the sentencing judge as to the sentencing structure and appropriate sentences for Mr Walker were as follows.
18. [18]
    The applicant’s counsel before the sentencing judge submitted that a sentence of nine and one-half years’ imprisonment for trafficking was the appropriate sentence and that the entirety of the balance of the suspended sentence should be activated and made cumulative on the sentence for trafficking and that a parole eligibility date should be set so that Mr Walker had to serve half of the sentence for the trafficking offence and half of the activated balance of the suspended sentence.  That would mean a total sentence of 12 years and two months of which Mr Walker would serve six years and one month in custody before being eligible for parole on 28 February 2025.
19. [19]
    The respondent’s submission to the sentencing judge was that the circumstances warranted a sentence for the trafficking of 12 years’ imprisonment and that the activated suspended sentence should be served concurrently.

The sentencing remarks

20. [20]
    After setting out the circumstances of the offences and Mr Walker’s antecedents, the sentencing remarks included the following.
21. [21]
    Mr Walker had gone from “a very serious commercial possession of about 10 grams of substance and six grams of methylamphetamine to this high-level trafficking which is a serious escalation” in circumstances where North J had given Mr Walker a chance to turn his back on the drug.  It was a serious aggravating feature that Mr Walker had conducted the serious criminal offence of trafficking in breach of a suspended sentence.
22. [22]
    The factors in Mr Walker’s favour were the plea of guilty, although it was not an early plea of guilty due to the dispute with respect to the handwritten document.  There was no actual violence shown to have been committed, despite evidence of threats.  It is accepted that Mr Walker was addicted to the drug at the time he committed the offences.  The recklessness of his continuing to traffic drugs after coming to the attention of the police showed that.  Mr Walker had a good work history and had support from both family and his employer.  The offending was at such a level that it should require a sentence of imprisonment that would be at least 11 years, but some credit had to be given for the plea of guilty.  It was a very serious example of trafficking.  Mr Walker had brought into the community (around Mackay) more than a kilogram of the substance containing methylamphetamine whilst on a suspended sentence.

Did the sentencing judge err in refusing to treat the guilty plea as early?

23. [23]
    Rather than argue the first ground in the terms in which it is framed that focuses on the weight placed on Mr Walker’s plea of guilty, Mr M J Jackson of counsel who appears for the applicant submits that the sentencing judge made an error of principle in refusing to characterise the guilty plea as an early guilty plea, as it was not unreasonable for the applicant to procure the report from the document examiner and the sentencing proceeded at the earliest opportunity for a contested sentence after the report was obtained.
24. [24]
    To address this submission, it is necessary to refer to some of the procedural history of the subject charges.  The indictment was presented in the Supreme Court of Rockhampton on 19 March 2020 and was transferred to Mackay.  It was reviewed in the Supreme Court at Mackay on numerous occasions until 29 March 2021 when, after Mr Heath’s report had been obtained, it was listed for a contested sentence hearing on 20 April 2021.
25. [25]
    As the result of the ruling on the contested facts, the prosecutor at the sentence hearing (who is not the counsel who appears on behalf of the respondent on this application) altered the sentencing range that was put before the sentencing judge from imprisonment of “12 to 14 years” to imprisonment “at the higher end of the 10 to 12-year range”.  The prosecutor submitted to the sentencing judge against the activated suspended sentence being served cumulatively on the sentence for trafficking on the basis it was not necessary where the aggravating factor of offending during the operational period of the suspended sentence was brought into account in assessing the appropriate sentence for the trafficking count.
26. [26]
    Even though there was a contest on two aspects of the facts before the sentencing judge in respect of which Mr Walker had mixed success, the success was not insignificant in that it reduced the sentencing range relied on by the prosecutor before the sentencing judge.  That was appropriate as the quantity of drugs estimated to be trafficked during the trafficking period was reduced considerably from the quantity of five kilograms (of gross substance) asserted by the prosecution to at least 1.18 kilograms (of gross substance).  Mr Walker cannot be penalised for pursuing the contest of factual matters that had a beneficial outcome for his sentencing.
27. [27]
    The problem for Mr Walker is that the contested sentence was delayed whilst he obtained a report on the authorship of the tick sheet (about which presumably he had knowledge as he was asserting that it was not a document authored by him), when it did not make any difference to the prosecution’s case against him whether the tick sheet was authored by Mr Walker, as long as it reflected a record of supplies made by him.  The real issue on the sentencing was whether the tick sheet found with drugs that were possessed by Mr Walker was a record of supplies made by him in the course of his trafficking methylamphetamine and, if so, the interpretation of the tick sheet in light of all the evidence available on the sentencing relevant to the quantities of drugs procured by Mr Walker during the trafficking period to supply others and the quantities of the actual supplies made or proposed to be made by Mr Walker.
28. [28]
    The submission made on behalf of Mr Walker that the contest based on the evidence from the document examiner “was going to happen in any event” overlooks that the contested sentence (without the document examiner’s report) could have taken place far sooner after the presentation of the indictment and the outcome would have been the same for Mr Walker, as the evidence of Mr Walker’s five trips to Yeppoon and the quantities of drugs of which he was found in possession after two of those trips did not support the prosecution’s interpretation of the tick sheet based, in part, on Mr Walker’s boasting to the girlfriend that he was sourcing “half a kilo twice a week straight from [the supplier]”.
29. [29]
    It was appropriate for the sentencing to proceed on the basis that it was a timely guilty plea.  There was no error of principle in the sentencing judge’s not treating the guilty plea as early.

Is the sentence manifestly excessive?

30. [30]
    The question is whether the imposition of a sentence of 10 years’ imprisonment for trafficking which automatically attracts the serious violent offence declaration and the requirement therefore to serve 80 per cent of the term before being eligible for parole with the activated suspended sentence being served concurrently is manifestly excessive.
31. [31]
    On the hearing of this application, the respondent relies on the analysis of comparable offending found in R v Feakes [2009] QCA 376 and the observation by McMurdo P at [33] and R v Nunn [2019] QCA 100 to submit that a sentence of at least 10 years’ imprisonment for the trafficking was neither unreasonable nor plainly unjust in the circumstances applicable to Mr Walker.  Mr Walker’s counsel sought to distinguish Nunn on the basis that it was a more serious example of trafficking than Mr Walker’s offending.
32. [32]
    The offender in Nunn who pleaded guilty was sentenced to 10 years’ imprisonment for trafficking in methylamphetamine over a period of approximately five months.  The trafficking was conducted largely as a wholesale business.  There were four employees and at least 2.3 kilograms was supplied during the trafficking period.  The amounts sold ranged from 0.1 to 140 grams at a time, depending on the customer.  The offender had unsourced income of $66,625.  On occasions the offender threatened violence to recover drug debts, including implicit threats to the mothers of two customers and kicking in the door to the house of one of the employees who owed the offender $30,000.  When the offender’s business was closed upon his arrest, he was found in possession of gross substance containing about 434 grams of pure methylamphetamine.  The offender had a relevant criminal history which included being sentenced about three years prior to the commencement of the trafficking period to 18 months’ imprisonment with immediate parole for five drug offences including possession of drugs and possession of things used in connection with the possession of a dangerous drug.  On the basis the sentencing judge had made an error in articulating as a “principle” that mature offenders who have pleaded guilty to trafficking in schedule 1 drugs on a large scale can expect a sentence of at least 10 years’ imprisonment except in extraordinary circumstances, it was necessary in Nunn for the application for leave to appeal to be granted, but the appeal was dismissed on the basis that in the circumstances of the offender’s case, the just sentence was at least 10 years’ imprisonment.
33. [33]
    Mr Walker’s offending was committed over a shorter period of two months and three weeks than the trafficking period in Nunn and the amounts supplied in that period was less than supplied over the longer period in Nunn.  Mr Walker’s trafficking business was, with the exception of two small supplies, a wholesale operation.  Mr Walker’s sentencing proceeded on the basis that he was addicted to methylamphetamine.  The aggravating aspects of Mr Walker’s offending that were not present in Nunn were that it was committed during the operational period of a suspended sentence for a commercial possession of methylamphetamine for which he had only been released from prison just under 12 months prior to the commencement of his trafficking, the two occasions on which Mr Walker was either intercepted by police or the residence where he was staying was searched by police on 2 December 2018 and 11 January 2019 respectively did not deter his continued offending, and all offending after 2 December 2018 was committed by Mr Walker whilst on bail for counts 2 and 3.  Mr Walker was not given any separate sentence of imprisonment for the offending of a different nature reflected by counts 5 and 6.
34. [34]
    Treating the comparable cases analysed in Feakes and Nunn as providing yardsticks against which to compare Mr Walker’s offending and circumstances, the sentence imposed on him for trafficking of 10 years’ imprisonment was neither unreasonable nor plainly unjust.

Order

35. [35]
    Mr Walker has not succeeded on either ground relied on for the application.  The order which I propose is: Application for leave to appeal refused.
36. [36]
    BODDICE J:  I agree with Mullins JA.