R v Mead[2022] QCA 82

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS JA:  On 27 September 2021 Mr Mead pleaded guilty to three counts of possessing a dangerous drug in excess of two grams (counts 1-3), two counts of possessing a dangerous drug (counts 4 and 5), one count of possessing a thing for use in connection with possessing a dangerous drug (count 6), one count of possessing instructions for producing a dangerous drug (count 7), one count of contravening order about information necessary to access information stored electronically (count 8) and one count of possessing a category R weapon (count 9).  All these offences were committed on 12 August 2020.  He also pleaded guilty to three related summary offences committed on the same date as the counts on the indictment.
2. [2]
   In respect of count 1, Mr Mead was sentenced to imprisonment for three years.  In respect of each of counts 2-9, he was sentenced to a concurrent term of imprisonment of two years.  Mr Mead was given a fixed parole release date of 26 September 2022 which was after serving one year in actual custody.
3. [3]
   In respect of the summary offences, he was convicted, a conviction was recorded and he was not further punished.
4. [4]
   Mr Mead applies for leave to appeal on the ground that the sentence was manifestly excessive and, in particular, the custodial portion of the sentence.
5. [5]
   Mr Mead was 37 years old at the time of the offending and he did not have any prior criminal history.
6. [6]
   The sentencing proceeded before the primary judge on an agreed statement of facts.  The police executed a search warrant at Mr Mead’s home on 12 August 2020 when Mr Mead was present with his teenage child.  He cooperated with police by advising them there was a suitcase containing dangerous drugs and Australian currency in the spare bedroom.  The drugs and other things that are the subject of the charges were located during the search of Mr Mead’s home.  The subject of count 1 is the 37.737 grams of MDMA found within 52.8 grams of substance in a cryovac clip seal bag in the suitcase in the spare bedroom.  There were two clip seal bags in the suitcase containing a total 12.7 grams of substance within which was 4.672 grams of cocaine and that was the subject of count 2.  In a cupboard in the hallway, the police located a clip seal bag holding 2.416 grams of methylamphetamine in 3.4 grams of substance that constituted the third aggravated possession of a schedule 1 drug (count 3).
7. [7]
   Count 4 concerned cannabis in the form of 76 grams of cannabis found in clip seal bags in the suitcase in the spare bedroom and a clip seal bag holding lollies that weighed 48.6 grams, were infused with cannabis oil and contained less than 0.1 per cent of cannabis oil together with a clip seal bag holding a small quantity of cannabis and a vial holding 0.075 grams of cannabis oil in 25 grams of substance found in the living room.  Count 5 covered an infinitesimal amount of lysergide in 2.66 grams of substance, 24 dexamphetamine tablets containing amphetamine and 19 tablets containing diazepam.
8. [8]
   When police arrived Mr Mead was holding an iPhone, the possession of which was the subject of count 6.  The police found in Mr Mead’s bedroom a book entitled “Advanced Techniques of Clandestine Psychedelic and Amphetamine Manufacture” which was the subject of count 7.  The police seized the phone and requested Mr Mead to provide his access code to the device which he refused to do and that resulted in count 8.  A taser was found in the cupboard in the spare bedroom which was the subject of count 9.  Brass knuckle dusters were found in the cupboard in the spare bedroom that were the subject of one summary offence.  Two used glass smoking pipes, two sets of digital scales and a quantity of clip seal bags were the subject of another summary offence.  The police found a total of $8,500 in cash that was the subject of the third summary offence.
9. [9]
   The statement of agreed facts recited that Mr Mead possessed the schedule 1 drugs of MDMA, methylamphetamine and cocaine primarily for a commercial purpose and it was accepted by the prosecution that there was also a personal use aspect to the possession.
10. [10]
    At the sentencing hearing, the prosecution acknowledged that pleas of guilty were early, as the matter proceeded by a registry committal on 21 June 2021.  When the indictment was presented on 12 July 2021, it was immediately listed for sentence.
11. [11]
    During the submissions made to the sentencing judge, Mr Mead’s counsel disclosed his instructions that Mr Mead was a drug addict which was the explanation for the wide variety of drugs in his possession.  Despite his drug addiction, he had a reasonable work history.  Although separated from the mother of his child, he had a close relationship with the child who had lived between each parent on alternate weeks since the child was five years old.  The reference from Mr Mead’s former partner disclosed the significant impact on the child from being present at the time of the police search and the concern caused by the anticipated separation when Mr Mead went to prison.  No material was adduced by Mr Mead to suggest that he had undertaken any rehabilitation to address his drug addiction prior to being sentenced.
12. [12]
    In the course of the sentencing remarks, the sentencing judge noted that the quantity of drugs in Mr Mead’s possession indicated a commercial element to his offending, but accepted that there was an element of personal use in the possession of many of the drugs in his possession.  He noted the significant impact that the police raid and separation from Mr Mead had, and would have, on his child’s life and that it was one of the things the sentencing judge had taken into account, but noted that the sentence was not going to be “overly influenced by that”.  The sentencing judge referred to the authorities that had been canvassed in the course of submissions, particularly R v Hawke [2021] QCA 179, and concluded that the appropriate course was “to balance the seriousness of your offending with the factors that stand in your favour” which included the potential impact on Mr Mead’s teenager’s wellbeing by setting a head sentence of three years’ imprisonment, but that no further discount should be given beyond the usual discount that is given for those who enter early pleas of guilty.  The fixed parole release date was set after one-third of that sentence had been served.
13. [13]
    On this application, Mr Mead does not challenge the appropriateness of the head sentence of three years, but seeks to rely on Hawke to demonstrate that more than the “usual discount” should have been given to Mr Mead for a plea that was entered during the registry committal process.
14. [14]
    Hawke was a less serious example of possession of schedule 1 drugs than Mr Mead’s offending.  The offender in Hawke was 47 years old when she was found in possession of 30.53 grams of pure methylamphetamine and possession of 1.631 grams of pure MDMA and was also charged with drug-related summary offences.  She had been introduced to methylamphetamine in her mid-40s.  The possession had a commercial purpose which was to sell some of the drugs to support her addiction. After being charged, she sought a residential rehabilitation place which only became available some two months before her sentencing date.  The sentencing judge declined to adjourn the sentence part heard to enable her to complete the rehabilitation program.  She was sentenced to three years’ imprisonment with a fixed parole release date after serving one year.  She was successful on appeal in having the parole release date brought forward to the date the appeal was heard which was eight months after the sentencing.  Applegarth J (with whom Sofronoff P and McMurdo JA agreed) at [54]-[55] accepted the argument that a period of 12 months of actual custody jeopardised, rather than aided, her rehabilitation and noted that the period of actual custody of 12 months was not required to provide additional general deterrence and denunciation and did not reflect her personal circumstances or her drug addiction or her productive steps towards self-rehabilitation in the circumstances during the COVID-19 pandemic.
15. [15]
    Whether a sentence is manifestly excessive depends on an assessment of the entire sentence and not just its component parts.  The custodial component of one-third of the effective head sentence has to be viewed in the context of the head sentence that was imposed for all Mr Mead’s offending.  It is apparent from the sentencing remarks that the sentencing judge expressly took account of the mitigating factors in setting both the head sentence and the period to be served in custody before the fixed date for parole took effect.
16. [16]
    Mr Mead’s mitigating factors of no prior criminal history, very early guilty pleas and the impact of his imprisonment on his teenage child had to be considered in conjunction with the fact that there was no material available on the sentencing to suggest Mr Mead had engaged in rehabilitation prior to being sentenced.  Having regard to the quantity of MDMA and the other schedule 1 drugs, the variety of other drugs and the other matters that were the subject of the offences, including possession of weapons and the instructions for production of illicit drugs and the failure to provide the access code to his iPhone, there is no basis whatsoever to conclude that the sentences that were imposed were unreasonable or plainly unjust.
17. [17]
    The application for leave to appeal must be refused.
18. [18]
    KELLY J:  I agree.
19. [19]
    MORRISON JA:  I agree.  The order of the Court is that the application for leave to appeal is refused.