R v Stevens[2023] QCA 241

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  The applicant pleaded guilty to a number of drug related charges which can be summarised as:

   1. count 2 – trafficking in a dangerous drug, namely cannabis;
   2. counts 3, 4 and 5 – possessing a dangerous drug, namely cannabis, ketamine, and lysergide;
   3. counts 6 and 8 – possessing a thing used in connection with trafficking a dangerous drug, namely clip-seal bags, a grinder, a mobile phone, and scales;
   4. count 7 – possessing property obtained from trafficking in a dangerous drug, namely $4,710 in cash;
   5. count 9 – producing a dangerous drug, namely cannabis; and
   6. count 10 – a summary offence of possession of a water pipe used in connection with smoking a dangerous drug.
2. [2]
   He was sentenced on 7 September 2023 to the following concurrent sentences:

   1. count 2 (trafficking) – two and a-half years’ imprisonment;
   2. count 3 and 4 (possession of cannabis) – nine months’ imprisonment; and
   3. counts 5, 6, 7, 8, 9 and 10 – convicted and not further punished.^[1]
3. [3]
   A parole release date of 7 February 2024 was set, after serving five months.
4. [4]
   The applicant seeks leave to challenge the sentences on the sole ground that they are manifestly excessive.  As developed before this Court, the contention is that requiring the applicant to serve any period of actual custody is what renders the sentence manifestly excessive.  The order sought is that the applicant be immediately released after time already served (about two and a-half months).

The offending conduct

5. [5]
   An agreed schedule of facts was tendered at the sentencing hearing.^[2]  What follows is a synopsis of those matters.
6. [6]
   The applicant was 21 years old at the time of offending and not employed in any legitimate job.  He trafficked in cannabis over a three-and-a-half-month period, dealing in a mix of street level and commercial quantities.
7. [7]
   He was asked if he could supply 3,4-methylenedioxymethamphetamine (MDMA) but although he made enquiries, he was unable to do so.  His customer base was unknown.  He actively used Snapchat to communicate with his customers and promote his product.  He used a pseudonym to protect his identity.  He also used Facebook Messenger and Telegram Messenger.
8. [8]
   Because of the applicant’s use of encrypted applications it could not be said how many customers he had, but he had 284 unique contacts, and 161 viewed a post on Snapchat that he made advertising his services.  He boasted of supplying up to 116 people.
9. [9]
   The applicant boasted of the quality of his drugs, his ability to source them in bulk if required, and advertised his products and cheap prices.
10. [10]
    He advertised cannabis along with food items laced with cannabis butter in a reasonably detailed way, telling potential customers about certain qualities of the product.
11. [11]
    He provided a price list to customers, ranging from 1.5 grams for $30, up to 112 grams (¼ of a pound) for $1,050.  However, it was unclear just what price he sold half-pound and pound quantities of cannabis.
12. [12]
    On 1 September 2021, he told customers that he would no longer be selling in amounts of 1.5 grams or 3 grams anymore, impliedly suggesting that he would continue selling larger amounts.
13. [13]
    He transferred some of his customers to the encrypted application, Telegram.  There were 17 subscribers to that group, although it had been viewed by 46 unique users.  After establishing a presence on Telegram, the applicant thanked at least 41 customers for their support and reminded them that the application was used for “both your own and my safety.”
14. [14]
    Although his operation was not sophisticated, he took steps such as adopting a legend of symbols for his customers.
15. [15]
    On an occasion, he offered customers a giveaway of drugs, and offered free drugs if they referred him successfully to other customers.
16. [16]
    Despite looking to attract a bigger customer base, the applicant was conscious of police and on at least one occasion, abandoned a supply because he saw police.
17. [17]
    He also kept a record of pricing and profit margins.  There was a note discovered on his phone that purportedly showed a profit calculation for what seems to be dealings with a pound of cannabis although it seems likely that this is a reference to the amount of cannabis that he procured for on-supply.
18. [18]
    In total, the Crown accepted that the limit of what the evidence could demonstrate was that the applicant had:

    1. offered to supply cannabis in excess of 30 times;
    2. offered to supply brownies laced with cannabis in excess of 11 times;
    3. facilitated at least 22 actual supplies; and
    4. received at least 15 enquiries in relation to supplying cannabis.
19. [19]
    Although the true profit from the enterprise could not be determined, the applicant’s business was profitable given:—

    1. his admissions to customers that he made $50 off an ounce sale;
    2. his ability to supply on tick;
    3. the quantities of cannabis available;
    4. his attempts to source cannabis from the United States;
    5. his attempts to have cannabis transported from down south, to Townsville;
    6. he was able to have others supply for him whilst he was out of town; and
    7. he was found in possession of over $4,000 cash, despite being unemployed at the time.
20. [20]
    When searched by police, he was found in possession of 0.511 grams of ketamine, 15 lysergide tablets, and 60 grams of cannabis in various locations.  The Crown alleged that there was a commercial purpose to the cannabis business but did not allege commerciality in relation to the other drugs.
21. [21]
    The applicant was also found with $4,710 in cash which was demonstrative of some profits.
22. [22]
    A number of items indicative of personal consumption of drugs, such as pipes, substances to mix with cannabis, and a grinder, were also found.
23. [23]
    A small cannabis plant was found in the backyard.  With the roots removed, it weighed just 90 grams.  The applicant told police that this was an experiment, although he watered and fertilized it.
24. [24]
    He told police untruthfully that his conduct was “just to help mates really” and that he had not made the brownies.

The approach of the sentencing judge

25. [25]
    The learned sentencing judge summarised the conduct substantially in accordance with the agreed schedule of facts.  His Honour noted the following matters:

    1. the early guilty pleas and the absence of any relevant criminal history;
    2. the applicant’s relative youth (21 at offending and 23 at sentencing);
    3. that the trafficking operation the applicant conducted was a business in the truest sense of the word; it continued over a reasonably extensive period of time and only came to an end because of police intervention; it was not a case where the applicant decided to change his ways and stop;
    4. his Honour described the trafficking business this way:

“This was a commercial operation on your part. It may have started out, as I have been told, that you were doing it to make some money to supply yourself with cannabis which you could not otherwise afford, but it quickly moved beyond that and it became a commercial enterprise whereby you were making a profit and you were seeking to increase your profit by increasing your customer base. So it was a profitable enterprise and it was reasonably well organised.”

5. the positive efforts taken towards rehabilitation and the consequent reduced risk of offending in the future; and
6. the fact that the applicant was employed in an apprenticeship and well regarded by his employer.

26. [26]
    Turning to the considerations  as to the sentence, his Honour said:

“But your rehabilitation is not the only consideration that the Court must take into account. At I have indicated, this, like most sentences, involves an assessment of competing considerations. The serious nature of the offending conduct is evident just from the facts that I have relayed to you during the course of these remarks. You embraced this enterprise with some obvious degree of enthusiasm. You did so knowing the risks that you were running. You recognised that at one stage by not continuing with a supply to a customer because you saw a police car somewhere, indicating that that would be all that was required for you to not go through with the supply, but you nevertheless continued with your enterprise.

Taking all of these competing considerations into account, in my view, a sentence for offending to this degree of seriousness that did not require you to serve some actual imprisonment would not adequately reflect the – particularly the principle of general deterrence, which seems to me to be of quite some significance. But so is your rehabilitation and, for that reason, I intend to impose a sentence that will require you to serve a period of actual imprisonment significantly less than would otherwise have been required, in my view.”

27. [27]
    When setting the parole release date the learned sentencing judge made these comments:

“I will set your parole release date at a much earlier date than the one-third mark that would usually be set, and I will make it after a period of some five months, to reflect both – or to reflect your plea of guilty at an early stage, your lack of prior convictions and the steps that you have taken towards rehabilitation. So your parole release date will be the 7^th of February 2024, at which time you will be the subject of parole for the balance of that sentence.”

Consideration

28. [28]
    Counsel for the applicant submits that sentencing the applicant to a period of actual custody was inappropriate because of the potential to jeopardise the applicant’s rehabilitation, and therefore considerations of general and personal deterrence and denunciation should have given way.
29. [29]
    It was said that this was a case where the need for general deterrence and denunciation did not outweigh the potential adverse effect of actual imprisonment in terms of the applicant’s ongoing rehabilitation.  Moreover, it was said that there was a very real chance that the imposition of an actual term of custody “may do much to jeopardise that rehabilitation”.
30. [30]
    Further, in reliance upon R v Dowel; Ex parte Attorney-General (Qld)^[3] it was submitted that it was not inevitable that there should be a custodial sentence in a trafficking case.
31. [31]
    In my view, there are several reasons to reject that submission.
32. [32]
    First, the learned sentencing judge specifically took into account the positive efforts towards rehabilitation and did not discount them.  However, beyond submissions from his counsel, there was no evidence tendered to suggest that there would be any harmful impact on the applicant’s rehabilitation.  He had the support of his employer and his immediate and wider family.  There was nothing to suggest that support would not continue.  In fact, the employer said that his employment would not be jeopardised, saying of the applicant that he was a “reliable, hardworking, trustworthy, and productive employee”, and “I am looking forward to our personal and professional relationship developing in the next years”.^[4]
33. [33]
    Secondly, the applicant’s rehabilitation was not formative or teetering.  It was well progressed, as his Honour recognised.  He was doing regular drug tests, seeing a psychologist, had a stable relationship with assured place of residence, and solid plans for the future.  None of that suggests that he was likely to go backwards if required to serve a short period of actual custody.
34. [34]
    Thirdly, as the sentencing judge recognised, progress towards rehabilitation was just one factor to be weighed in the considerations.  A competing consideration was that which flowed from the serious nature of the commercial trafficking in which the applicant engaged.  There was no claim, as there is in many cases, that it was done to support an addiction.  This was purely for profit, and but for the police detection the applicant was seeking to continue the business and grow it.
35. [35]
    Fourthly, the fact that no custodial element might have been imposed in other cases is not determinative.  The applicant relied upon cases such as R v Hodges,^[5] R v Thearle,^[6] R v Dolan,^[7] R v Vellacott,^[8] R v Gault,^[9] and R v Illin.^[10]  However, they simply demonstrate that each case depends on its own facts.
36. [36]
    A period of actual custody was not disturbed in Hodges, Thearle, Vellacott and Gault.  In Dolan there was a real risk that the rehabilitation would be jeopardised and so on re-sentencing the custodial period was set at time served.  Illin involved an extraordinary factual situation far removed from the present case.  They do not establish that the imposition of a period of custody in the present case was beyond the scope of proper discretion.
37. [37]
    In R v Eaton^[11] this Court said:

“[71] In order to establish that the sentence is manifestly excessive, this Court must be satisfied that there ‘must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’. The mere fact that sentence imposed is different from other sentences, and even markedly different from other sentences, does not establish that it is manifestly excessive. As was said by this Court R v MCT:

‘To succeed on an application based on manifest excess, it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is ‘unreasonable or plainly unjust’. Consistently with accepted understanding that there is no single correct sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies’”.

38. [38]
    In my view, that cannot be demonstrated in the present case.  The learned sentencing judge balanced all competing considerations, concluding that deterrence was the significant factor which compelled the result.  In doing so his Honour specifically took into account the applicant’s rehabilitation, by setting parole release date at a much earlier date than the one-third mark that would usually be set, “to reflect your plea of guilty at an early stage, your lack of prior convictions and the steps that you have taken towards rehabilitation”.
39. [39]
    The sentencing discretion did not miscarry.
40. [40]
    I would therefore order:

1. Leave to appeal against sentence is refused.

41. [41]
    BOND JA:  I agree with the reasons for judgment of Morrison JA and with the order proposed by his Honour.
42. [42]
    CROW J:  I agree with Morrison JA.