R v Hodges[2023] QCA 126

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  On 25 January 2023 Mr Hodges pleaded guilty to trafficking in the dangerous drug cannabis between 15 September 2020 and 11 January 2022, four counts of supply of dangerous drugs and one count of possessing a thing (mobile phone) used in connection with the commission of the crime of trafficking in a dangerous drug.  Mr Hodges was 18 to 19 years old during the trafficking period.
2. [2]
   The sentencing took place on 9 February 2023.  For the trafficking, Mr Hodges was sentenced to imprisonment for two years and six months.  For each of the supply offences (counts 2 and 3), he was sentenced to nine months’ imprisonment and for each of the supply offences (counts 4 and 5), he was sentenced to 12 months’ imprisonment.  For possessing the mobile phone, he was sentenced to two months’ imprisonment.  He also pleaded guilty to two related summary charges for which he was convicted and not otherwise punished.  His parole release date was fixed at 9 August 2023 after serving six months in custody.  He applies for leave to appeal against his sentence on the ground it was manifestly excessive in all the circumstances.
3. [3]
   A search warrant was executed at Mr Hodges’ home on 13 January 2022 when his mobile phone and the items that were the subject of the summary changes were seized.  He made admissions that the mobile phone had been used to supply dangerous drugs and the other items that were located were used for the personal consumption of cannabis.  He subsequently participated in a record of interview with the police in which he made admissions about the social media accounts he operated.
4. [4]
   An analysis of his phone revealed he had trafficked in cannabis for approximately 16 months.  He engaged in 70 supplies of which 31 were actual supplies of a total amount of 269 grams of cannabis and 39 were offers to supply.  Mr Hodges supplied 14 people during the trafficking period and his most frequent customer purchased 212 grams over 11 occasions.  His supplies to other customers included between 1 to 3 grams on 18 occasions and 7 to 14 grams on six occasions.  The total value of his sales over the entire trafficking period was $4,665.  He admitted to police that he used his profits to fund his own personal drug use.  He communicated to his customers through social media and texts.  He would swap between accounts as accounts were deactivated by Snapchat.  His advertisement indicated the quality of his product and his price list.  He had advertised to supply up to 353 grams of cannabis during the period of the trafficking.  He was prepared to sell on credit or on loan.  His most frequent customer was also a supplier of cannabis to him.  Messages between Mr Hodges and that supplier indicated that he supplied to her as a customer for on supply by her when he had stock.
5. [5]
   Count 2 concerned his offer to supply diazepam tablets for $10 each on 9 April 2021.  Count 3 concerned his offer to supply diazepam tablets in exchange for cannabis on 15 May 2021.  Count 4 concerned a supply of 1 gram of MDMA for $150 on 26 July 2021.  The most serious of the supply charges was count 5 that concerned an actual supply of 3.5 grams of MDMA for $375 on 29 July 2021.  He had two entries in his criminal history that arose after he commenced the trafficking.  He was fined $100 for contravening a direction or requirement on 11 February 2021.  He was found in possession of 14 grams of cannabis during the trafficking period on 21 August 2021.  He was dealt with for that in the Magistrates Court on 7 September 2021 when a good behaviour bond for a period of three months was imposed and he was referred for drug diversion.
6. [6]
   During the sentencing submissions, Mr Hodges’ counsel emphasised Mr Hodges’ addiction to cannabis.  He explained that Mr Hodges dropped out of school, was a heavy user of cannabis and had sporadic employment.  Since being charged, Mr Hodges was endeavouring to address his addiction by seeking medical assistance and being prescribed cannabis.  He had not gained employment.  His youth was also emphasised and his counsel submitted for an immediate parole release date.
7. [7]
   After summarising the facts of the offending, the sentencing remarks included the following.  It was persistent offending which involved trafficking over a lengthy period to multiple customers.  There was an attempt to grow the business and to find suppliers.  Although it did not turn out to be an extremely remunerative business, the persistence over that period made the offending serious and Mr Hodges’ criminality was exacerbated by the supply charges in respect of drugs other than cannabis.  The sentencing judge accepted that the trafficking was to fund Mr Hodges’ addiction and noted Mr Hodges’ youth and lack of prior convictions when he commenced trafficking, but did not consider that he had progressed greatly with his rehabilitation.  The sentencing judge considered Mr Hodges’ youth called for moderation of the time spent in custody but declined to give an immediate parole release date because of the gravity of the offending.
8. [8]
   On this application, Ms Prskalo of King’s Counsel on behalf of Mr Hodges refers to the authorities of R v Thearle [2012] QCA 42 and R v Gair [2019] QCA 172 which were more serious examples of trafficking in cannabis and submits that Mr Hodges’ youth and lack of previous criminal history were powerful mitigating factors which, in combination with relatively infrequent street level dealing, warranted an immediate release to parole and a head sentence of two years’ imprisonment.  It is submitted that the sentencing judge assessed the gravity of the conduct primarily having regard to the length of the trafficking period without synthesising properly that fact with the infrequency of the transactions and the minor quantities sold.
9. [9]
   The question on this application is not what sentence may have been imposed by other judges, but whether a sentence of two and one-half years’ imprisonment for trafficking in cannabis with a requirement to serve six months in custody made the sentence “unreasonable or plainly unjust”.
10. [10]
    This was low level persistent trafficking over a period of 16 months by a youthful first offender who was heavily addicted to cannabis and whose guilty plea was early.  Being dealt with for the possession of a minor quantity of cannabis during the trafficking period did not stop Mr Hodges from trafficking.  Even though his business was not profitable, he had taken steps to expand it.  The only evidence put forward by Mr Hodges relevant to his rehabilitation was that he had obtained a prescription for cannabis since being charged with the offences.
11. [11]
    It cannot be said that the sentencing judge overlooked any of the relevant factors.  It is argued that it was not open for the sentencing judge to impose a custodial component on Mr Hodges, but the effect of the submission made in this Court on  his behalf is better characterised as that more weight should have been given by the sentencing judge to Mr Hodges’ youth and the very low level nature of his sales.  The sentence of two and one-half years’ imprisonment was toward the lower end of the possible sentences for low level trafficking in cannabis.  Consistent with the approach to youthful offenders even for trafficking in dangerous drugs acknowledged by Muir JA (with whom Fraser JA and Dalton J agreed) in R v Dowel; Ex parte Attorney-General (Qld) [2013] QCA 8 at [21], the sentencing judge could easily have given an immediate parole release date.  That does not justify a conclusion, however, that requiring Mr Hodges to serve six months in actual custody was unreasonable in all the circumstances.
12. [12]
    It follows that that the order that should be made is: Application for leave to appeal refused.
13. [13]
    MORRISON JA:  I agree.
14. [14]
    BOND JA:  I agree with the order proposed by the President and with her Honour’s reasons for so doing.
15. [15]
    MULLINS P:  The order of the Court is: Application for leave to appeal refused.