R v Hutchins[2023] QCA 242

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Crow J.
2. [2]
   BOND JA:  I agree with Crow J for the reasons his Honour expresses that save in respect of count 6, the applicant has failed to demonstrate that there is any reason to infer that the sentencing discretion miscarried.  I agree with Crow J in relation to count 6.  I agree with the orders proposed by Crow J.
3. [3]
   CROW J:  On 27 October 2023, the applicant was sentenced as follows:

4. [4]
   A period of 289 days (from 11 January 2023 to 26 October 2023) of pre-sentence custody was declared as time served. The applicant’s parole eligibility date was fixed after he served 14 months’ imprisonment, (or one-third of the sentence imposed for Count 1) on 10 March 2024.
5. [5]
   A brief summary of the facts is that between 12 February 2021 and 11 November 2021, police commenced an operation to target the trafficking of dangerous drugs in the Whitsunday area.  The applicant’s telecommunication devices were intercepted from 13 October 2021 until the operation was suspended in November 2021.  The interception of the applicant’s telecommunications recommenced in May 2022 until 12 January 2023.  As a result, there was a detailed record of the trafficking for only nine of the 15 months in which the applicant trafficked in dangerous drugs.
6. [6]
   Telephone intercepts showed that in the nine months from October 2021 to November 2021 and from May 2022 to January 2023, the applicant:

   1. Supplied cannabis on at least 46 occasions;
   2. Had approximately 33 customers;
   3. Supplied at least 1.911 kilograms of cannabis for at least $25,000;
   4. Utilised coded communication for drugs and locations to avoid detection;
   5. Had prices for the cannabis, namely 28 grams was supplied for $350 to $380; 14 grams for $190; seven grams for $100 and one pound for $4,960;
   6. Bargained the price of a small quantity of cannabis on one occasion;
   7. Told customers when he was absent so they could “stock up”;
   8. Advised a customer he was going to concentrate on his business that paid the bills and not his struggling limousine business.
7. [7]
   Analysis of telephone interceptions revealed he had offered to supply a person cocaine (Count 2) on 4 November 2021.  The following day, he offered to supply three people with cocaine (Counts 3 to 5).
8. [8]
   On 1 July 2022, police executed a search warrant at an address in Proserpine.  16.1 kilograms of cannabis was seized (Count 6).  The seizure of the 16.1 kilograms of cannabis on 1 July 2022 was a significant event because, despite being detected by police officers, the applicant continued to traffic in cannabis for a period of a further six and a half months until 12 January 2023.
9. [9]
   On 11 January 2023, search warrants were executed at the applicant’s address and on a vessel at the Port of Airlie Marina.  On the boat, police located 345 grams of cannabis (summary offence 2), $9,445 of currency, and prescription medication (summary offence 3).  Further cash was located at the applicant’s home.  In total, $10,695 of cash was found in his possession.
10. [10]
    Upon sentence the prosecutor argued for a sentence of three and a half to four years’ imprisonment and defence counsel argued for three years’ imprisonment.  The primary judge imposed a “head” sentence on Count 1 the trafficking of three and a half years’ imprisonment with parole eligibility after having served one-third of that sentence.
11. [11]
    The applicant contends that the sentence which is just in all the circumstances is a sentence of three years’ imprisonment with parole being fixed at 12 months.  The applicant contends that the sentence imposed by the primary judge was manifestly excessive because:

    1. Disproportionate weight was placed upon the applicant’s criminal history; and
    2. Proper weight was not given to the applicant’s early pleas of guilty and strong prospects of rehabilitation.
12. [12]
    In order to succeed on the basis that a sentence imposed was manifestly excessive, 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”.^[1]  In Pham, the plurality said at [28]:

“(7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.” [footnotes omitted]

13. [13]
    The applicant does not submit that the primary judge made any specific error that could be identified such as acting upon the wrong principle or allowing extraneous or irrelevant matters to guide or effect his decision or that he was mistaken upon the facts or failed to take into account some material considerations.
14. [14]
    The applicant’s argument as framed is that the primary judge placed too much weight upon the applicant’s criminal history and too little weight upon the applicant’s early plea of guilty and strong prospects of rehabilitation.  The applicant did have a criminal history in New South Wales from 1991 to 2004, which consisted of convictions for drug possession in 1991, 1998 and 2002, as well as a conviction for supply of prohibited drug in 1998.  Of this NSW history, the primary judge said that the convictions were “quite dated and relatively minor”.^[2]
15. [15]
    His Honour then went on to say:

“Of great significance, however, is the fact that you appeared in this Court on the 27^th of April 2018 and pleaded guilty to an offence of possession of dangerous drugs, namely cannabis in excess of 500 grams, one count of possessing a dangerous drug and one count of possessing a thing for use in the commission of a drug offence. … The most serious offence related to possession of 1.6 kilograms of cannabis, packaged in a way that was consistent with it being for sale, on 18 July 2017, and the commerciality of that possession that was confirmed by the police finding a hidden sum of money in excess of $45,000.”^[3]

16. [16]
    In addition to the primary judge referring to the sentence of 27 April 2018 being of “great significance” the primary judge also said:

“I am not going to engage in any extensive analysis of the similarities and dissimilarities of your circumstances and those of the applicants in those cases, other than to note, of course, that none of those applicants had a criminal history which contained the type of features yours does because of the offending for which you were sentenced by Judge Farr SC in 2019.”^[4]

17. [17]
    The judge’s sentencing remarks reveal that he did place a great deal of weight on the July 2017 offending.  The issue of whether such weight was “disproportionate” can only be assessed by reference to the actual features of the offending, the applicant’s antecedents and the so-called comparable cases.  The prosecutor and defence counsel upon sentence had made extensive submissions upon the “comparable” cases of Cairns, Gair, and Zahran.^[5]

Cairns

18. [18]
    In Cairns, the applicant was sentenced to four years’ imprisonment and made eligible for parole after having served 16 months.  The circumstances of the offending in Cairns show that Cairns was largely a wholesale trafficker in cannabis.  Cairns and his father sold approximately nine pounds or four kilograms of cannabis to a covert police officer on five occasions for a total of $19,600 and for a relatively minor profit of $1,000.  Cairns and his father did have other customers.  Police found another 10 pounds or four and half kilograms ready for sale.
19. [19]
    It is difficult to compare the offending in Cairns with the offending of the applicant, as the full extent of the applicant’s trafficking was unknown.  Of that which is known, the applicant had supplied much less cannabis (i.e. 1.911 kilograms) for a greater price of $25,000.  The agreed facts showed the applicant trafficked often at street level, selling 28 grams for $350 to $380 and seven grams for $100.  The applicant did, however, on one occasion sell one pound (or 453 grams) to a customer for $4,960.  Accordingly, in the period where the applicant was monitored, there was one wholesale transaction.
20. [20]
    More importantly, on the execution of the search warrant on 1 July 2022, the applicant was found to have stored at “Thompson’s House” 36 vacuum sealed bags of cannabis with each bag containing one pound for a total of 16.1 kgs of cannabis.  That, of course, is much more cannabis than was discovered by police on the arrest of Cairns.  Whilst there are aspects of the criminal offending in Cairns which are worse than the applicant’s, such as Cairns and his father trafficking predominantly in wholesale cannabis, there are also factual matters which suggest that the applicant’s criminal culpability is higher than Cairns, e.g. a higher amount of sales revenue and the greater amount of cannabis and cash located upon the police search.
21. [21]
    Whilst there may be some difficulty in assessing the respective relative criminal culpability of Cairns and the applicant, it is plain that Cairns had much better antecedents than the applicant with only a very minor criminal history which was dated, with the most serious offence appearing to be an offence committed in December 2002 (some several years earlier) for possessing property suspected of being used in connection with commission of a drug offence, for which Cairns was fined $200 with no conviction recorded.

Gair

22. [22]
    Gair was sentenced to three years’ imprisonment with parole release after nine months for trafficking in cannabis over a 22 month period.  Gair trafficked at a street level and at a wholesale level.  It is difficult to compare the offending in Gair and the applicant’s offending because the applicant’s telephone was intercepted for only nine of the 15 months in which he trafficked in cannabis.  Gair engaged in 162 transactions, said to be both actual supplies or offers to supply, over a 22 month period, which is mathematically an average of 7.36 transactions per month.  However, that includes actual supplies and offers to supply.  The applicant’s trafficking can be particularised as 46 actual supplies in the nine months he was monitored, an average of 5.11 actual supplies per month.
23. [23]
    Gair trafficked in quantities ranging from seven grams up to one pound, and that is similar to the applicant, however, Gair had only 21 customers, whereas the applicant had 33 customers.  Gair was found with a larger amount of cash $17,930, as opposed to the applicant’s $10,695.  The applicant had a vastly greater store of cannabis (16.1 kilograms), whereas Gair had only 946 grams of cannabis.  I conclude that the applicant having possession of 16.1 kgs of cannabis is a much higher level trafficker than Gair who possessed only 946 grams.  In view of the fact the applicant possessed 16.1 kgs or approximately 36 pounds of cannabis, and that the applicant had on one occasion sold one pound to a customer for $4,960, then the applicant had stored $178,560 worth of cannabis.
24. [24]
    Furthermore, the antecedents of Gair are far more favourable than the antecedents of the applicant.  Gair was 36 years of age at the time of his offending, and 38 years of age at the time of sentencing.  Gair had a much dated criminal history.  Gair had convictions for possession of dangerous drugs and utensils in 1999 and 2001 when he was aged 18 and 20, was convicted of supplying and possession of dangerous drugs in 2007 for which he was put on probation for 12 months (when aged 26) and had one conviction for possession of dangerous drugs and things in 2008.  There was then an absence of any convictions from 2008 for approximately seven years until mid-2015.

Zahran

25. [25]
    Zahran was sentenced to three and half years’ imprisonment suspended after 12 months for an operational period of three and a half years for trafficking in cannabis at a wholesale level for five months.  The prosecution did not present particulars of the nature of the wholesale trafficking, however, it was, as Henry J noted, illustrated by two police seizures.  The first police seizure was in January 2020 when Zahran’s associate was intercepted by police with $76,400 in cash.  On the second search on 21 March 2000, police searched the workplace of another associate and located 13.56 kgs of cannabis and $39,150 in cash.  In summary, Zahran trafficked for a much shorter period of five months, but at a higher and entirely wholesale level.
26. [26]
    A significant factual difference is that Zahran desisted in his wholesale cannabis trafficking of his own volition.  Zahran’s antecedents were much better than the applicant’s as Zahran had a minor criminal history.  Additionally in the period of almost three years between his arrest and sentencing, Zahran had rehabilitated and made considerable effort to turn his life around.

Conclusion

27. [27]
    The three “comparable” cases put before the primary judge and relied upon in this Court were nothing more than very broad yardsticks, as each had different facts and different aggravating and mitigating features such that the comparison between those cases and the applicant’s case does not assist the applicant in showing that the sentence imposed upon him was manifestly excessive.
28. [28]
    With respect to the 2017 offending, the applicant was sentenced to 18 months’ imprisonment to be released after having served three months.  The prior offending was the possessing a Schedule 2 dangerous drug with a quantity of exceeding Schedule 3.  The primary judge described the offending conduct as:

“The offending conduct is, indeed, serious. You were found to be in possession of 1.6 kilograms of cannabis. It was packaged in a manner that is in and of itself suggestive that it was destined for sale. However, that commerciality was confirmed when police located, hidden below a drawer in the chest of drawers, a sum – a large sum of money – $45,300… the vast majority of it was destined for sale and that is the commercial aspect of the possession that I am dealing with… Your cooperation with the police at the time that the police raid was conducted was – well, you cooperated to some extent, although, as I indicated to counsel it was not in the full extent. As I read the material, you readily admitted the presence of the cannabis, something which would have been well and truly appreciated they would find almost immediately, given its location in the place, but you did not make any reference to the police about there being $45,000 cash hidden under a drawer in the chest of drawers. That only came out when police conducted the full search.”

29. [29]
    The primary judge was accurate in his analysis of Cairns, Gair and Zahran, in that none of those cases contain the feature of a significant commercial possession of cannabis and a large sum of money within a period of only three years prior to the index offending.  Whilst it is accurate to conclude that his Honour did place significant weight upon that issue, the primary judge was right to do so.  However, there is nothing in the primary judge’s reasons, nor is there any other reason to conclude that the primary judge placed “disproportionate” weight upon the significant and important feature of the applicant’s immediate past criminal history.
30. [30]
    As to the applicant’s early pleas of guilty, the primary judge said, “Those are very early pleas of guilty, and that is a mitigating factor I take into account on sentence.”^[6]
31. [31]
    As to the applicant’s prospects of rehabilitation, the primary judge said, “You obviously do have the capacity to rehabilitate and become a productive member of society.  It seems that your evident work ethic can be directed towards positive pursuits.”^[7]
32. [32]
    The primary judge then referred to the employment offer that was currently open to the applicant, which carries the necessity for random drug testing, before commenting “So all that bodes well for your future and, no doubt, will assist in the application by you for release upon parole.”^[8]
33. [33]
    It is plain, in my view, that the primary judge did place weight upon the applicant’s early pleas of guilty and his strong prospects of rehabilitation. It seems to me the primary judge has balanced these features against the other relevant features and in particular commercial possession of cannabis and the sum of $45,000 in 2017 in fashioning the sentence.  Very broad yardstick cases placed before his Honour contained ranges from three years’ imprisonment (Gair), and four years’ imprisonment (Cairns).  However, as discussed above, each had several different factual features of the offending, with different antecedents and importantly none of the applicants in Cairns, Gair and Zahran had the history of the recent and significant commercial possession of a Schedule 2 dangerous drug and a large sum of money in the three years prior to the index offending.  The applicant has not shown that the sentence is manifestly excessive.
34. [34]
    During oral submissions on appeal, Senior Counsel for the applicant argued that the separate 12-month sentence of imprisonment for Count 6 (the possession of 16.1 kgs of cannabis) suggested that the possession was not a particular of the trafficking alleged in Count 1.  However, the agreed statement of facts, the prosecutor’s oral submission to the primary judge and the sentencing remarks of the primary judge show that the possession Count was a particular of the trafficking.  In these circumstances both counsel submit, and it ought to be accepted, that the separate sentence on Count 6 ought to be set aside.  I would order that the application for leave to appeal against sentence be granted; the appeal be allowed to the extent of setting aside the sentence on Count 6 and in lieu thereof ordering that the applicant be convicted and not further punished; otherwise the appeal be dismissed and the sentences imposed confirmed.