R v Solway[2023] QCA 267

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Boddice JA.
2. [2]
   BODDICE JA:  Williams J’s comprehensive summary of the applicant’s offending, his mitigating factors and of the sentencing judge’s remarks, allows me to briefly state my reasons for refusing leave to appeal.
3. [3]
   First, there was no error in the sentencing judge’s conclusion that the starting point for the applicant’s objectively serious drug offending was a 10 to 11 year sentence.
4. [4]
   The applicant engaged in trafficking in multiple dangerous drugs, over a period of almost 10 months.  He sourced drugs from Sydney in wholesale amounts on a regular basis, utilising two couriers and vehicles containing hidden compartments to transport the drugs.  Whilst he had a limited number of customers, he sold an identified total of 383.15 grams (gross) of MDMA and 71.331 grams (gross) of cocaine, as well as offering to sell a further 28 grams of cocaine and 1,098 grams of MDMA.  He profited to the extent of at least $46,812.32.  Although he had mental health issues and a drug addiction, the offending was for profit and the trafficking business graduated to selling in larger amounts.
5. [5]
   Second, the sentencing judge carefully took into account the applicant’s many mitigating factors in reducing the head sentence to nine and a half years imprisonment with parole eligibility in accordance with the statutory period.  Such a sentence did not represent a reduction of “perhaps as little as 6 months”.^[1]  The imposition of a sentence of 10 years or more would have the consequence of an automatic declaration of a conviction of a serious violent offence, and the applicant would be required to serve 80 per cent of that sentence.
6. [6]
   The sentencing judge was cognisant of the significant reduction.  The sentencing judge observed:

“Weighing up all of the circumstances and having regard to the cases, I have, however, determined that a sentence of nine and a-half years is one that is warranted in your case, given the mitigating circumstances which I have outlined.

Given those circumstances have taken your offending to below the 10-year mark, and that is a significant thing, because as your counsel would have explained to you, you would otherwise be spending 80 per cent of that time in custody.  I have determined that your parole should just be determined by the statutory parole.  You have had the benefit of the mitigating circumstances in the sentence I have imposed upon you, and I do not consider that any further reduction in the time that you would spend in custody is warranted.”

7. [7]
   Further, whilst the applicant had no relevant prior criminal history and was young, at the time of the offending, he did not have the benefit of extreme youth.  Further, he did not desist of his own accord and his plea of guilty was timely, not early.
8. [8]
   Third, the authorities relied upon by the prosecution were comparable.^[2]  Although concerning mature offenders with criminal histories, they were relevant authorities for criminality involving a sophisticated wholesale trafficking business undertaken for profit by a distributor using couriers to source his drugs.  The applicant’s mitigating factors and differing criminal history were reflected in the imposition of a substantially lesser head sentence to those authorities.
9. [9]
   Fourth, a sentence of nine and a half years imprisonment, with parole eligibility in accordance with the legislation, reflected the many mitigating factors in the applicant’s favour, including his young age, timely plea of guilty, lack of previous drug offending and significant prospects of rehabilitation.  The sentencing judge may not have specifically referred to the lengthy period the applicant had been on bail with no further offending, but the sentencing judge plainly had regard to that circumstance, specifically acknowledging that the applicant had engaged in conduct “to show this Court that you are able to turn your life around and that you do have prospects of rehabilitation …”.
10. [10]
    There was no error in the imposition of the sentence by the sentencing judge.  Further, a consideration of all of the aggravating and mitigating circumstances and of the comparable authorities supports a conclusion that the sentence imposed was neither unreasonable nor plainly unjust.  To the contrary, the sentence fell within a sound exercise of the sentencing discretion.
11. [11]
    I would order that leave to appeal against sentence be refused.

12. [12]
    WILLIAMS J:  This is an application for leave to appeal a sentence imposed on 6 May 2022.  The applicant was convicted following a guilty plea and was sentenced to nine and a half years imprisonment in respect of Count 1 (trafficking in dangerous drugs) and six months imprisonment for Count 37 (contravening order about information necessary to access information stored electronically) and was convicted but not further punished in respect of the balance of the counts on the basis that they were particulars of the trafficking.^[3]  There were also three summary charges for which the applicant was also convicted but not further punished.  A serious drug offence certificate was issued and a forfeiture order made.  The terms of imprisonment were ordered to be served concurrently.
13. [13]
    The applicant seeks to appeal the sentence on the basis that the sentence was manifestly excessive.  The applicant focuses on two factors in support of the contention that the sentence is manifestly excessive:

    1. the authorities referred to at the sentencing hearing were not truly comparable authorities and did not assist the sentencing judge in the exercise of the sentencing discretion to arrive at the appropriate sentence in all of the circumstances of the applicant’s offending; and
    2. the mitigating features were not adequately reflected in the sentence.^[4]
14. [14]
    The applicant’s ultimate submission is that the sentence in respect of Count 1 should be varied to eight to nine years imprisonment with parole eligibility at about one third of the sentence, but in any event less than the statutory 50 per cent.
15. [15]
    The respondent submits that the application for leave to appeal against sentence ought to be refused on the basis that the sentence imposed was not unreasonable or plainly unjust.

The relevant circumstances and the sentence imposed by the sentencing judge

16. [16]
    The applicant was 23 years of age at the time of the offending and had no relevant criminal history.^[5]  Consequently, it is submitted that the applicant was a youthful,^[6] first-time offender who entered a timely plea indicative of remorse and insight.
17. [17]
    Further, it is submitted that the offending found its genesis in mental health issues and drug addiction.  However, it is acknowledged that the offending was for profit and extended beyond what was required to service the applicant’s own addiction.
18. [18]
    It is submitted that the applicant had also demonstrated good rehabilitative prospects.
19. [19]
    The sentence proceeded on a highly detailed 21-page agreed statement of facts.  The applicant submits that as the statement of facts followed an extensive investigation, the known supplies in this case reflects a “relatively complete”, if not complete, picture of the trafficking undertaken by the applicant.
20. [20]
    In summary, the applicant:

    1. trafficked for almost ten months;
    2. had in the order of seven customers;
    3. employed two couriers who drove cars with hidden compartments;
    4. completed at least 29 supplies, 13 of which were to undercover police;
    5. sold an identified total 383.15 grams (gross) of MDMA and 71.331 grams (gross) of cocaine, as well as a further 17.5 grams (gross) of substance which was either MDMA or cocaine;
    6. offered to sell a further 28 grams of cocaine and 1098 grams of MDMA;
    7. started selling in amounts of 3.5 grams and, halfway through the trafficking period, graduated to selling in 14 to 84 gram amounts (half to three ounces); and
    8. profited at least $46,812.32 from trafficking. Additionally, some unquantifiable part of the money paid by undercover police ($41,100) would also have been profit.
21. [21]
    The sentence proceeded on the basis that the applicant sourced drugs from Sydney in wholesale amounts approximately monthly.  On one occasion the applicant sourced “a kilo” of cocaine which was later analysed as 968.1 grams substance containing 701.8 grams of cocaine.^[7]  This factor can be considered as an indicator that he was capable of obtaining “up to” that amount.  This also applies in respect of an unsuccessful attempt to obtain a similar amount of MDMA at the conclusion of the trafficking.^[8]
22. [22]
    It is not known how much was obtained on other occasions, only that it was sufficient to service his drug supplies at a lower wholesale level.^[9]
23. [23]
    At the sentencing hearing, the respondent contended for a sentence in the order of 11 to 12 years.^[10]  The defence contended for a sentence less than ten years with it open to reduce the time to be served below the halfway point, however conceded that it would not be an error of principal to leave parole at the halfway point and that the authorities suggested the court should avoid “double discounting”.^[11]
24. [24]
    The applicant submits that despite that concession, the Court of Appeal is not precluded from considering the sentence.  Reliance is placed on the comments of Martin SJA in R v SDZ [2023] QCA 30 that an earlier concession does not make the task of an applicant any greater than it would have been in the absence of such a submission.  That is, it is still open to this Court to consider whether there is demonstrated error.
25. [25]
    The applicant has analysed the comparative authorities referred to at the sentencing hearing.  It is submitted that the cases referred to by the respondent were in the range of nine to 13 years imprisonment.^[12]  The comparable authorities referred to by the defence were in the range of nine to ten years imprisonment.^[13]
26. [26]
    The sentencing judge concluded that the starting point was a ten to 11 year sentence.^[14]  The applicant submits that the sentencing judge’s view of the range appears to have been a reference to the objective seriousness of the offending coupled with the plea of guilty but before taking into account any other mitigating factors.^[15]
27. [27]
    Then the sentencing judge took into account the mitigating features and reduced the head sentence to nine and a half years.  It is submitted that this reduction is “perhaps as little as six months”.  However, it is recognised that this is with the significant benefit of avoidance of a mandatory serious violent offence declaration.
28. [28]
    The sentencing judge was referred to 21 comparative authorities: 15 by the defence and six by the prosecution.  It is submitted by the applicant that it is clear that the defence was attempting to secure a sentence of less than ten years, and the analysis of the cases was directed to that end.
29. [29]
    Reference is made to the defence’s outline of submissions at the sentencing hearing^[16] at [10] and [11] where there is an attempt to analyse the comparative authorities and compare the various aggravating features to the current facts.  The particular facts in respect of the applicant relied upon in analysing those cases included:

    1. the applicant made some profit from his trafficking business, but it did not reach such excess as hundreds of thousands of dollars;
    2. the applicant was a distributor.  While he used two couriers, the evidence does not suggest that he was at the top of the chain;
    3. while the applicant boasted that he obtained drugs from interstate, the evidence fails to demonstrate that this was in fact the case;
    4. there was no evidence or threatened or actual violence; and
    5. there was no evidence that the trafficking was committed in breach of court orders.
30. [30]
    The applicant contends that the submissions before the sentencing judge focused upon avoiding ten years imprisonment, without proper analysis of true yardsticks.  It is submitted that this approach tended to obscure rather than illuminate the appropriate sentence.
31. [31]
    The submissions on behalf of the applicant accept that past sentences do not mark the outer bounds of the sentencing discretion and it is an error to undertake a close comparison of the various aggravating and mitigating factors.  However, it is submitted that to reach an appropriate sentence required some focus on the sentences imposed on youthful, first-time offenders in significant wholesale Schedule 1 drug trafficking cases, rather than sentences imposed on entrenched mature recidivists.
32. [32]
    It is in these circumstances that the submission is now made that the comparative authorities referred to by both parties were “simply unhelpful in an assessment of the appropriate sentence in the applicant’s case on the factual basis as found by her Honour”.
33. [33]
    It is submitted that all of the cases referred to involved:

    1. wholesale Schedule 1 drug trafficking by mature offenders often with a criminal history for drug offending; and
    2. combinations of other significant aggravating features such as having trafficked for much longer periods, involving much more significant profit and who persisted offending despite multiple police interventions or in breach of court orders, or were sentenced after trial.
34. [34]
    For the purposes of the application for leave to appeal, those cases have been reanalysed and summarised in Attachment A to the submissions on behalf of the applicant.  It is submitted that Attachment A illustrates the lack of comparability of these authorities.
35. [35]
    The applicant contends that more assistance may be obtained from statements of principal in the decision of R v Tran; Ex parte Attorney-General (Qld) [2018] QCA 22.
36. [36]
    Boddice J (as his Honour then was), with whom Philippides JA and McMurdo JA agreed, relevantly stated in R v Tran; Ex parte Attorney-General (Qld) [2018] QCA 22:

1. “[41]
   Whilst a double benefit may, in certain circumstances, be an appropriate exercise of the sentencing discretion, there was no proper basis for affording a double benefit in the present case. The respondent’s plea of guilty was late. He subsequently failed to appear at his initial sentence date. He only appeared in court after being arrested pursuant to a warrant issued as a consequence of his failure to appear at his sentence.
2. [42]
   Usually, pleas of guilty generally only attract parole eligibility dates at around the one-third mark of a head sentence in circumstances where the plea of guilty is early and accompanied by genuine remorse. There are also often other factors relevant to the exercise of such a discretion, including the youth of the offender and successful steps towards rehabilitation.”

37. [37]
    Morrison JA, with whom Sofronoff P and Mullins JA (as her Honour then was) agreed, stated in R v King [2020] QCA 9 at page 9 as follows:

“… This Court’s decision in R v Tran; Ex parte Attorney-General (Qld) is authority for the proposition that in some instances where a sentence imposed for trafficking in dangerous drugs would have been, but for the guilty plea, 10 years or more, but has been reduced below 10 years because of the guilty plea, there may be a basis for affording a double benefit for the guilty plea in the form of a further reduction of the non-parole period, but there must be some circumstances to warrant such an approach.

The factors weighing against that course in Corbett were the offender’s mature age, the fact that his trafficking was substantial and for commercial profit, the late plea of guilty, his failure to appear at the initial sentence date, and the absence of genuine remorse. The applicant is a mature-age offender with a previous conviction and sentence of imprisonment for trafficking who conducted an intensive trafficking operation at a wholesale level for commercial profit. The applicant’s performance on various courses whilst in custody signified, in the learned sentencing judge’s view, steps towards rehabilitation, but that was taken into account in reducing what would otherwise have been a sentence of 10 years. It cannot be demonstrated that the learned sentencing judge erred in concluding that the circumstances did not warrant the double benefit identified in Tran.”

38. [38]
    Boddice J’s comments in R v Tran; Ex parte Attorney-General (Qld) have been referred to with approval in R v Corbett [2018] QCA 341 at [18] where it was stated:

“… The applicant is correct in saying that in R v Tran; Ex parte Attorney-General (Qld), it was acknowledged that in some instances where a sentence was reduced below 10 years, there might be a basis for affording a double benefit for a guilty plea, in the form of a further reduction of the non-parole period …”

39. [39]
    Further, in R v Delander [2019] QCA 69 at [36], the Court held:

“… To the extent that the applicant sought to contend that R v Tran is not authority that there cannot be a double benefit in all cases, that is plainly correct.”

40. [40]
    Further, in R v Luu [2018] QCA 281 at [30] it was commented in relation to R v Tran:

“While his Honour then went on to discuss circumstances where a double benefit may be an appropriate exercise of the sentencing discretion, it is clear that the dominant issue concerning him was the effect of the reduction of the head sentence below the 10 year mark. Nor do the examples his Honour gave of an early plea, youth, genuine remorse and successful steps towards rehabilitation dictate that in every case where those features appear a double benefit should necessarily follow. They are merely examples of the types of discretionary factors that may be taken into account and it is doubtful that his Honour intended to be exhaustive in listing those discretionary considerations. Again, without intending to be exhaustive, one might add issues such as significant co-operation with the authorities by identifying and being willing to give evidence against accomplices or reduced culpability because one was overborne or threatened by an accomplice.”

41. [41]
    Here, the applicant contends that the factors in mitigation include:

    1. the applicant was 23 years of age at the time of the offending with no relevant criminal history;
    2. at the time of offending, he suffered from mental health issues, including post-traumatic stress disorder, as a consequence of an abusive and traumatic childhood.  The sentencing judge recognised that this reduced the applicant’s moral culpability for the offending.^[17]  Further, the sentencing judge recognised in the sentencing remarks that mental issues affected his thinking and responses to some extent;^[18]
    3. the applicant had suffered from a drug addiction arising out of self-medication.  This resulted from seeking to ignore his prejudicial background, as well as from chronic back pain as a result of a car accident;
    4. the applicant’s trafficking, whilst significantly motivated by profit, was not “simply a cynical commercial operation”;^[19]
    5. a timely plea of guilty and a written letter to the Court are indicative of his remorse and insight;^[20]
    6. the applicant had abstained from drug use in the three years between May 2019 when his offending ceased and when he was sentenced in May 2022.  This abstinence was supported by hair tests covering a 12-month period;
    7. the applicant had prospects of rehabilitation;^[21] and
    8. the applicant had a good work history and had maintained his own roofing business which he closed down only shortly prior to sentence, knowing he was going into custody.
42. [42]
    In respect of what is the appropriate sentence in all of the circumstances, the applicant starts from the proposition that whilst general deterrence is an importance feature, the applicant’s rehabilitation is also an important feature given his youth and lack of criminal history.
43. [43]
    Reliance is placed on the decision of R v Dullroy & Yates; Ex parte Attorney-General (Qld) [2005] QCA 219 in respect of this proposition.  In that case, White J, with whom McMurdo J agreed, referred to comments by the Court of Appeal in Lovell v The Queen [1999] 2 Qd R 79 at 83.  This included:

“… Nonetheless youth remains a material consideration; for the rehabilitation of youthful, even violent, offenders, especially those without prior, relevant convictions, also serves to protect the community. And among the matters to which the court is required by s 9(4) to pay primary regard are ‘the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed’ (g), and ‘the antecedents, age and character of the offender’ (h).”

44. [44]
    With that proposition in mind, the applicant refers to three cases which he now identifies as comparative authorities which he submits are more helpful in an assessment of the appropriate sentence in the applicant’s case, on the factual basis as found by the sentencing judge.
45. [45]
    The applicant relies upon R v Brown [2015] QCA 225, R v Boyd [2013] QCA 335 and R v Berry [2017] QCA 271.
46. [46]
    The relevant facts of R v Brown are as follows:

    1. the offending spanned five years and seven months when Brown was aged between 22 and 27;
    2. the offending was motivated by “pure financial greed”;
    3. a sentence of nine years with parole after four years was imposed for 29 offences, including trafficking and fraud;
    4. the trafficking was over a period of about 19 months and involved methylamphetamine, MDMA and MDEA and was largely committed whilst on bail;
    5. Brown was granted bail on multiple occasions, sometimes after periods in custody, and continued to offend;
    6. the trafficking operation was wholesale and commercial and included “massive” amounts of precursor chemicals in two 25-kilogram drums and 40 litres of other precursors to be used to manufacture methylamphetamine.  These had been imported, with Brown setting up a company to do so;
    7. Brown produced methylamphetamine over an 18-month period;
    8. one of the counts involved him spending $86,110 in one transaction to purchase 20,000 tablets weighing 4.4 kilograms and containing almost two kilograms of pure MDMA;
    9. he had scales, a pill press and numerous other drugs and chemicals;
    10. he was involved in a commercial hydroponic cannabis setup;
    11. he was found on one occasion with $16,871 and on another with 1,683 pills;
    12. he had used fake identification to register a storage shed and to commit fraud to purchase two Mercedes Benz cars;
    13. the fraud was persistent, sophisticated and systemic and ran for 14 months;
    14. the offending was flagrant and escalated over time; and
    15. the reason that Brown served four years with a nine-year head sentence appears to have been that Brown was not remorseful and the plea of guilty was entered late after a long nine-day committal hearing, four pre-trial hearings and two separate trial listings.  The plea was only entered on the day the four-week trial was to start for the second time.
47. [47]
    In that case, the Court of Appeal held that the sentence was appropriate, and Morrison JA commented that he would have imposed the same sentence.
48. [48]
    The relevant facts in R v Boyd are as follows:

    1. the applicant’s age was not stated, he had no criminal history and his was an early plea;
    2. the applicant received a sentence of eight years with parole eligibility after two years eight months, which was not altered on appeal;
    3. Boyd trafficked in methylamphetamine and MDMA for ten months.  A search of his residence located $89,800 cash, 88 ecstasy tablets, 21.5 grams of methylamphetamine, a heat-sealing machine and clip seal bags, a shot gun, a cross bow and a $28,000 tick list for 1,100 MDMA tablets and five and a half ounces of amphetamine;
    4. Boyd was charged and released on bail, but he continued to traffic;
    5. in a second search of Boyd’s residence some months later, $38,000 cash, 825 MDMA pills, six clip seal bags that contained ecstasy and methylamphetamine powder and a pistol were located;
    6. he had $123,000 in unexplained income and was owed $100,000 for drugs sold on credit;
    7. he had been seen with as much as three pounds (1.36 kilograms) of amphetamine, 5,000 to 10,000 MDMA pills and ten pounds of cannabis as well as numerous weapons;
    8. he was in business with a co-offender who had tick lists for $450,000 of drugs sold and about $300,000 in cash received; and
    9. he had turned to drug use after the death of his son and being the subject of a glassing incident, which left him blind in one eye.
49. [49]
    The application also relied on the relevant facts in R v Berry which are as follows:

    1. the offender was 24 to 25 years of age during the trafficking period which ran for 14 months and involved methylamphetamine, MDMA and lysergide;
    2. Berry was sentenced to ten years and two months which was reduced on appeal to nine years to serve four before parole eligibility;
    3. his business involved over 200 supplies.  For 93 of those, he was paid $138,000 cash;
    4. he sold relatively high purity methylamphetamine, sometimes in wholesale amounts to two others who, to his knowledge, on sold;
    5. he took a car from one of his debtors which had been bought for $65,000 two years earlier and assaulted another over unpaid drug debts;
    6. after a period in custody he was released and committed further drug offences;
    7. he had two children and had worked for a civil construction company until he became addicted to methylamphetamine.  He sold drugs to service that addiction and for profit;
    8. his use of violence and intimidation were notable as was the wholesale aspect of his trafficking;
    9. he had good references, had turned his life around and worked whilst on bail; and
    10. he had demonstrated sincere effects to lead a decent life which, in the context of his youth, was said to be significant.
50. [50]
    The applicant contends that the head sentence imposed in respect of trafficking was manifestly excessive as it relied upon cases which were not true yardsticks and did not consider the appropriateness of a “double discount”.^[22]  The applicant relies upon the identified yardsticks as reflecting a more appropriate sentence in the range of eight to nine years with parole at less than the statutory minimum.
51. [51]
    The respondent starts from the test of manifest excess as stated by the High Court in R v Pham (2015) 256 CLR 550, where French CJ, Keane and Nettle JJ stated:

“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.”^[23]

52. [52]
    The respondent refers to the submissions made at first instance by counsel for the defendant, including recognition that the sentencing judge should take care not to “double discount”.  Reference is also made to the submissions by the defendant as to how the parole eligibility date should be approached, which also accepted that it would not in error of principle not to reduce the parole eligibility date below the statutory 50 per cent.^[24]  The respondent contends that it was open to the sentencing judge to take the approach that was taken and that it is consistent with the statement of Boddice J (as his Honour then was) in R v Tran.
53. [53]
    Ultimately, it is submitted that these are matters for the exercise of the sentencing discretion and there is no mandatory course or formula where there is a youthful offender.
54. [54]
    Further, the respondent submits that the fact that the sentencing discretion may have been exercised more favourably to the applicant is not sufficient to establish manifest excess in the sentence actually imposed.^[25]
55. [55]
    Consistent with the comments of Boddice J in R v Tran at [40], the consequence of a reduction in the head sentence below ten years “was, in practical terms, very significant”.
56. [56]
    In respect of youthful offenders, the respondent recognises authorities which provide some assistance in how they should be approached:

    1. In R v Berry [2017] QCA 271, Sofronoff P commented:

“The comparative sentences to which I have referred would indicate that a head sentence of less than 10 years is appropriate in the case of a youthful offender, even one who trafficked at a wholesale level, in cases in which a real and voluntary effort at rehabilitation has been made.”^[26]

2. In R v Safi [2015] QCA 13,^[27] reference is made to the decision of R v Johnson [2014] QCA 79 which states:

“… absent extraordinary circumstances, in cases of trafficking in Sch 1 drugs on this scale mature offenders who have pleaded guilty can expect a sentence of at least 10 years imprisonment. Younger offenders without a significant criminal history and with excellent rehabilitative prospects may be sentenced to slightly lesser terms.”

57. [57]
    The respondent contends that a careful analysis of the sentencing remarks shows that the sentence imposed balanced all the relevant sentencing considerations, the mitigating and aggravating circumstances and the applicant’s antecedents to arrive at the appropriate sentence.  Further, it is submitted that it cannot be said that the sentencing judge did not have proper and due regard to the applicant’s age and other mitigation in the course of her remarks.^[28]
58. [58]
    It is submitted that at 23 years of age, the applicant did not have the benefit of extreme youth nor a complete absence of criminal history.  It is submitted that these factors, if present, may have resulted in further or special leniency.^[29]
59. [59]
    The respondent points to the particular facts of the offending, in particular:

    1. the applicant, despite his relative youth, capably operated a sophisticated wholesale business trafficking in two Schedule 1 dangerous drugs, being MDMA and cocaine;
    2. the applicant evidenced a willingness to expand into a third dangerous drug, being methylamphetamine;
    3. the applicant sourced drugs in wholesale amounts from Sydney on multiple occasions and involved others to act as couriers in transporting the drugs on occasions when he was not able to do so.  Vehicles with hidden compartments were used for this purpose;
    4. the applicant’s conduct is properly described as “spear heading” the operation.  He directed the conduct of others that he recruited to assist him, including friends.  He was not being instructed by any person as part of a syndicate.  This was the applicant’s own operation driven in a significant way by a desire to make profit;^[30]
    5. the applicant sourced wholesale amounts of drugs including, by way of example, one kilo of substance containing 700 grams of cocaine which was intercepted;
    6. he also arranged the supply of one kilo of MDMA to an undercover police officer.  The supply did not proceed due to his arrest, however messages on his phone indicated that the drugs were available to be supplied later that day;
    7. the applicant had identifiable unsourced income in the order of $47,000; and
    8. he used encrypted cipher phones and encrypted messaging applications such as Wickr to conduct his business and avoid detection.^[31]
60. [60]
    Further, the applicant did not cease offending of his own volition but rather as a result of his arrest.
61. [61]
    The respondent acknowledges that the applicant’s drug use and mental health are relevant factors which must be, and were, considered by the sentencing judge. Equally, it is submitted, these are to be considered in light of his ability to successfully operate two businesses: the trafficking business and also a legitimate business.  It is also submitted that it is relevant that he was able to abstain from drug use of his own volition after being charged.
62. [62]
    Overall, the respondent contends that the applicant’s conduct as an “entrepreneur and businessman” is to be considered in light of his drug use and mental health issue.
63. [63]
    It is also submitted that regard was had by the sentencing judge to the sentences imposed on two co-offenders, Mr Wilson and Mr Symonds.  Mr Wilson was intercepted in possession of the kilo of cocaine as a courier and was sentenced to four and a half years imprisonment.^[32]  Mr Symonds assisted in trafficking for only four months and was sentenced to an effective head sentence of six years and three months.^[33]
64. [64]
    Relevantly, the applicant’s offending was longer and more serious than either of his co-offenders.  Consistent with the sentencing judge’s observations, the respondent submits that a need for general deterrence and community denunciation is relevant to the appropriate sentence in all of the circumstances.
65. [65]
    Further, the sentencing judge took into account the matters in the applicant’s favour as reflected in the sentencing remarks as follows:

“Weighing up all of the circumstances and having regard to the cases, I have, however, determined that a sentence of nine and a-half years is one that is warranted in your case, given the mitigating circumstances which I have outlined.

Given those circumstances have taken your offending to below the 10-year mark, and that is a significant thing, because as your counsel would have explained to you, you would otherwise be spending 80 per cent of that time in custody. I have determined that your parole should just be determined by the statutory parole. You have had the benefit of the mitigating circumstances in the sentence I have imposed upon you, and I do not consider that any further reduction in the time that you would spend in custody is warranted.”^[34]

66. [66]
    It is in light of these comments and the other factors identified, that the respondent submits that the sentencing judge did not err in concluding that the circumstances in this case did not warrant the double benefit identified in R v Tran.
67. [67]
    Ultimately, the respondent contends that the sentence was not unreasonable or plainly unjust.  Accordingly, the respondent submits that leave to appeal against sentence ought to be refused.

Consideration

68. [68]
    The issue of sentences at or around ten years imprisonment and the impact of a serious violent offence declaration have previously been specifically considered by the Court of Appeal.
69. [69]
    In R v Carlisle [2017] QCA 258, Applegarth J, with whom Gotterson and Morrison JJA agreed, considered whether the reduction for a very early plea of guilty and un-declarable pre-sentence custody^[35] resulted in a sentence that was manifestly excessive in all of the circumstances.  In that case, a sentence of ten years was imposed by the sentencing judge for drug trafficking, with the consequential mandatory serious violent offence declaration.
70. [70]
    The sentencing judge identified a nominal head sentence of 12 years and made a reduction of two years for the mitigating circumstances and time served in pre-sentence custody.  The mitigating factors included an early plea and prospects of rehabilitation were “well-placed”.^[36]
71. [71]
    In that case, the applicant contended that the nominal head sentence was too high and the mitigating circumstances and time served were not adequately reflected in a reduction of the head sentence.
72. [72]
    Applegarth J observed:

    1. “… in a typical case in which account is taken of a period of pre-sentence custody which is not declarable, the practice is that the pre-sentence custody is taken into account in fixing both the head sentence and the non-parole period.  The term ‘backdating’ is a loose expression which is used in this context to refer to the necessary adjustment to a parole eligibility date and to the sentence which otherwise would be imposed. … in arriving at the sentence, account is taken of the pre-sentence custody in full.  It is not doubled.”^[37]
    2. “It might be possible to justify a sentence of 10 years’ imprisonment with a requirement to serve eight years before being eligible for parole as not being manifestly excessive if the 12 year starting point adopted by the learned sentencing judge was too favourable to the applicant.  However, the comparable cases do not support this conclusion.”^[38]
    3. If the nominal head sentence of 12 years was not manifestly excessive, then a reduction of “only nine months or possibly one year” on account of mitigating circumstances was manifestly inadequate, “particularly for a ‘very early plea’.”^[39]
    4. “… the effect of the starting point, coupled with the inadequate reduction, resulted in a sentence which was manifestly excessive.”^[40]
73. [73]
    In re-sentencing the applicant in that case, Applegarth J relevantly stated:

    1. “… In cases of this kind, much depends upon whether a sentence is reached after taking the early plea of guilty into account in reducing what would otherwise be a sentence of more than 10 years … or whether the sentence is simply arrived at … with the early guilty plea to being taken into account principally in fixing a parole eligibility date.  If the former applies, then the real benefit of the early plea of guilty is not simply the reduction of a few years from the otherwise indicated sentence.  It extends to not being subject to an automatic serious violent offence declaration.  In such a case the offender cannot necessarily expect to have the double benefit of an early plea of guilty also resulting in parole eligibility after serving one third.”^[41]
    2. In the circumstances of the case, a “serious violent offence declaration is not necessary to reflect the seriousness of the conduct.  Its seriousness is reflected in the substantial term of the imprisonment. … The imposition of a serious violent offence declaration as a matter of discretion would result in an excessive sentence in all the circumstances.”^[42]
    3. In respect of parole eligibility, “the applicant’s early plea of guilt remains relevant even if account is taken of it in a general sense in arriving at an appropriate head sentence.  Having taken the plea of guilty into account in arriving at an effective sentence of nine years, I do not consider that the applicant should be eligible for parole at the usual one third point on account of his early plea.  His substantial steps towards his own rehabilitation whilst on remand are deserving of recognition.  Although a subsidiary in the operation, and an addict, he played an essential role in a major trafficking operation.  Considerations of personal deterrence, general deterrence and denunciation justify parole eligibility later than the usual one third point.”^[43]
74. [74]
    The Court of Appeal granted leave and allowed the appeal, varying the sentence to nine years, setting aside the serious violent offence declaration and fixing a parole eligibility date at four years.
75. [75]
    These principles were also relevantly considered in R v Randall [2019] QCA 25.
76. [76]
    In that case, the sentencing judge started from a notional head sentence of 11 years and, taking into account the late plea of guilty, reduced the head sentence to nine years.  Further, the sentencing judge concluded that a serious violent offence declaration should not be made but that the automatic parole eligibility at 50 per cent “would have given undeserved weight to the … plea”.  Consequently, the parole eligibility date was postponed by six months, resulting in a parole eligibility date of five years.
77. [77]
    The Court, constituted by Sofronoff P, Morrison JA and Burns J, in joint reasons at [31] and [33], observed that the difference in the impact of a sentence imposed just below the ten year mark and a sentence marginally above is disproportionally great in respect of time in custody before being eligible for parole.^[44]
78. [78]
    Further, the Court reasoned:

1. “[37]
   … the exercise of the discretion under s 160C(5) of the Penalties and Sentences Act to postpone a parole eligibility date must be supported by a ‘good reason’.  That is nothing more than a restatement of the general proposition that a discretion to make an order must be exercised judicially.  The term ‘judicially’ in that context means that the discretion must be justified by a reason and that reason must be informed by the purpose for which the discretion has been conferred.  As Davis J observed, the purpose of the discretion to vary a parole date from the default halfway mark that the Act otherwise imposes, is to empower a sentencing judge to achieve a just sentence in all the circumstances.  That purpose is, in our view, the paramount objective of sentencing.
2. [38]
   Because of the many different kinds of offences, the infinite kinds of circumstances surrounding the commission of offences and the limitless kinds of offenders, both the discretion as to the length of imprisonment and as to the fixing of a parole date cannot possibly be circumscribed by judge-made rules so as to preclude consideration of whatever relevant factors might arise in a particular case.  It may be common to impose a head sentence by having regard mostly to the circumstances surrounding the commission of the offence and to fix the actual period of custody by reference to an offender’s personal circumstances.  But there is no rule of law that requires that to be done in every case.  In the absence of a statute that prescribes the way in which an offender should be punished, sentencing judges have always regarded all of the elements of a sentence to be flexible.  They will continue to do so in order to arrive at a just sentence in all the circumstances.”

79. [79]
    The Court of Appeal upheld the sentence and concluded at [43] that:

“The purposes of sentencing are many and the process itself is not capable of being reduced to discrete intellectual modules. … The discretion to fix a parole eligibility date is unfettered and the significance of a guilty plea for the exercise of that discretion will vary from case to case.  Consequently, there can be no mathematical approach to fixing such a date.” [citations omitted]

80. [80]
    In R v Kirke [2020] QCA 53, the Court of Appeal considered how wider mitigating features were to be reflected in a sentence of around ten years imprisonment, with the potential impact of a serious violent offence declaration arising for consideration.
81. [81]
    In that case, the sentencing judge imposed a sentence of nine years imprisonment in respect of manslaughter and two years imprisonment for other counts,^[45] to be served concurrently.  A parole eligibility date was set at five and a half years, being a little over 60 per cent of the sentence.  Presentence custody of 879 days was declared as time served under the sentence.
82. [82]
    The applicant contended that the sentence was “unreasonable or plainly unjust”, and that the sentence should be varied to set parole eligibility after three years.
83. [83]
    The applicant’s counsel had raised three specific mitigating factors at sentence and submitted before the Court of Appeal “that it was hard, if not impossible, to see what benefit was given to the applicant in respect of the three matters he had raised.”  The three factors were manslaughter on the basis of negligence, the offender’s extreme youth and his pleas of guilty.
84. [84]
    Justice Bond,^[46] with whom Morrison JA and Callaghan J agreed, noted that the sentencing judge had correctly noted the “relevant aspects of the law concerning offences which might be regarded as serious violent offences” including as follows:

    1. “If a declaration is made then it is made as a component of the sentence, and the fact that the consequence of the declaration is that the offender serves 80% of the sentence is taken into account in setting the appropriate sentence”.^[47]
    2. “The law recognises that the difference in the impact of a sentence imposed just below the arbitrary line of 10 years, and a sentence marginally above, is disproportionally great when having regard to time spent under sentence before being eligible for parole”.^[48]
    3. “While in other cases a plea of guilty and other mitigating factors may be reflected in a recommendation for early release on parole, that option is not available where the sentence for a serious violent offence is 10 years or more.  In those circumstances, any mitigating factors must be reflected by a suitable reduction of the head sentence”.^[49]
85. [85]
    Following a review of the relevant principles, Bond J concluded:

    1. absent a form of statutory prescription, the process of sentencing to arrive at a sentence that is just in all of the circumstances does not mandate a sequential form of reasoning.  Accordingly, a sentencing judge is not in error in not stating a “theoretical starting point from which demonstrably sufficient allowance is sequentially made for relevant mitigating factors and the guilty plea”;^[50]
    2. the sentencing remarks revealed the sentencing judge had taken into account the youth of the applicant and the guilty plea in arriving at a sentence where:
       1. the mandatory serious violent offence declaration did not arise;
       2. the discretion to make a serious violent offence declaration was not exercised; and
       3. the circumstances of the offending provided a basis for exercising the discretion to delay the parole eligibility date.^[51]
86. [86]
    In refusing the application for leave to appeal, Bond J also observed that a marked difference from the comparable cases (even if they were of limited use) was not enough.  The applicant needed to demonstrate:

“… that the result embodied in the sentence was ‘unreasonable or plainly unjust’ and that this court should infer ‘that in some way there has been a failure properly to exercise the discretion ...’”.^[52]

87. [87]
    In the current application similar considerations arise.  The applicant’s submission can be understood as encompassing several components:

    1. that the nominal head sentence of ten to 11 years was too high as a starting point, particularly taking into account the applicant’s relatively young age and that he had no relevant criminal history;^[53]
    2. the mitigating features identified by the sentencing judge were not properly reflected in the sentence by the reduction in the head sentence to nine and a half years imprisonment; and
    3. the mitigating features identified by the sentencing judge did not take into account that the applicant had been on bail for three years between May 2019 and May 2022 when he was sentenced, where he was compliant with bail conditions apart from one breach of bail condition on 21 September 2020 shown on his criminal history for which he was fined $100 with no conviction recorded.^[54]
88. [88]
    It is in these circumstances that it is ultimately submitted that the sentence is unreasonable or plainly unjust such as to reach the conclusion that there was a failure to properly exercise the sentencing discretion.
89. [89]
    Considering each of these components in turn.
90. [90]
    The comparable authorities referred to at the sentence were in many respects unhelpful as they did not reflect a youthful offender with no, or a limited, criminal history.  They are more reflective of mature offenders and with a criminal history of drug offending.  However, that alone would not be sufficient.
91. [91]
    If the ten to 11 year starting point is arrived at on the basis of those comparable authorities, then a greater benefit should be given to the applicant in the reduction to reflect his age, criminal history and the other mitigating features.  If a lower starting point is used based on authorities of similar relative youth and lack of relevant criminal history, then a lesser reduction would be called for as the reduction would only reflect the other mitigating features.  This is consistent with the comments of Applegarth J in R v Carlisle discussed at [72] above.
92. [92]
    Further, even assuming that the nominal head sentence is the correct starting point, the effective reduction is minimal given the mitigating features, including:

    1. the applicant’s relatively young age;
    2. the applicant’s timely plea of guilty;
    3. the applicant’s lack of a relevant criminal history and particularly, no previous drug offending; and
    4. prospects of rehabilitation.
93. [93]
    The reduction could, as submitted by the applicant, be as little as six months.  There is, however, the supplementary benefit of the mandatory serious violent offence declaration not arising.^[55]
94. [94]
    In making the reduction to the nominal head sentence, the sentencing judge did take into account the “mitigating circumstances which [she had] outlined”.  However, there is no mention in the sentencing remarks of the lengthy period the applicant had been on bail.  There is a general reference to the applicant having “engaged in conduct to show this Court that you are able to turn your life around and that you do have prospects of rehabilitation …”.  However, there is no apparent regard to the applicant having been compliant with bail conditions with no reoffending.^[56]
95. [95]
    The sentencing judge did note that the applicant had moved to Rockhampton and been conducting his business there, changed his group of friends and has had “at least had a period which has been drug free”.  Further, he had focused on his health and entered into a new relationship.^[57]
96. [96]
    There was evidence that the applicant abstained from drug use for the three year period, which was supported by negative Hair Analysis Drug Test Results from March 2021, September 2021, December 2021 and 10 March 2022.^[58]  There is no particular reference to this extent of the applicant’s rehabilitation in the sentencing remarks.
97. [97]
    In respect of the sentence imposed here:

    1. it appears to have started from a nominal head sentence of ten to 11 years reflecting the objective seriousness of the offending together with the timely plea of guilty, before consideration of other mitigating features;
    2. it incorporates a reduction in the head sentence to nine and a half years, taking into account the “identified” mitigating factors;
    3. by inference, the exercise of the discretion to make a serious violent offence declaration was not necessary; and
    4. there was not an identified basis to reduce the parole eligibility below the statutory 50 per cent mark.
98. [98]
    However, the sentence did not factor in the three-year period in which the applicant was on bail prior to sentence.  This is a significant mitigating factor which has effectively been omitted.  As there was no pre-sentence custody to declare, and the period on bail was not factored in, this lengthy period where the applicant was in the community and did not re-offend is nullified.  This factor alone results in the sentence being manifestly excessive and unreasonable or plainly unjust such as to reach the conclusion that there was a failure to properly exercise the sentencing discretion.
99. [99]
    When the other components of the sentence are considered in combination with this factor this conclusion is confirmed.  The effect of the nominal head sentence of ten to 11 years as the starting point and the minimal reduction for the mitigating factors, combined with the omission of the three years on bail when he abstained from drugs with no re-offending prior to sentence, amplifies the sentence being manifestly excessive, unreasonable and plainly unjust.
100. [100]
     Consequently, it is necessary to re-exercise the sentencing discretion.
101. [101]
     The analysis of the authorities in Attachment A to the applicant’s submissions highlights that many of the authorities referred to are not of much assistance as they involved mature offenders, often with relevant criminal histories.  This, together with the further authorities referred to in submissions, supports a starting point of around ten years for the nominal head sentence.  This particularly takes into account the applicant being relatively youthful and not having a relevant criminal history.
102. [102]
     The mitigating features then operate to reduce the head sentence.  These relevant features include the timely plea of guilty, the applicant’s work history and his general prospects of rehabilitation.  This also includes his reduced moral culpability for the offending as a result of suffering mental health issues, including Post Traumatic Stress Disorder as a consequence of an abusive and traumatic childhood.  The sentencing judge recognised that this affected the applicant’s thinking and responses to some extent.^[59]
103. [103]
     The applicant was a drug addict at the time of the offending, although the drug trafficking did extend significantly beyond that.  The applicant had, as evidenced by the hair follicle test results, made significant steps towards rehabilitation.
104. [104]
     Taking these mitigating features into account, a head sentence of nine years imprisonment appropriately reflects the criminality involved, but also properly reflects these mitigating features.
105. [105]
     Further, an exercise of the discretion to make a serious violent offence declaration is not necessary in all of the circumstances, as the seriousness of the offending is reflected in the head sentence.
106. [106]
     The three-year period that the applicant was on bail and complying with the bail conditions (apart from the one breach in September 2020), is appropriately considered in respect of the parole eligibility date.  The applicant’s age, together with the three-year period he was on bail, not re-offending and not using drugs, are mitigating factors in support of a reduction in the parole eligibility date below the statutory 50 per cent.
107. [107]
     The substantial steps the applicant has taken towards rehabilitation whilst on bail should be properly reflected in the sentence.
108. [108]
     In all of the circumstances, personal deterrence, general deterrence and denunciation support a parole eligibility date of less than half (being four-and-a-half years) but more than one third (being three years).  The applicant played a central role in the drug trafficking operation, even where he was relatively young and had his own drug addiction.  Further, there was a level of sophistication to the trafficking, with drugs sourced from Sydney and the involvement of couriers.  It was driven largely by profit.  A parole eligibility date at three and a half years appropriately reflects these considerations.
109. [109]
     Accordingly, the following orders are appropriate:

1. Leave to appeal granted.
2. Appeal against sentence allowed.
3. Sentence varied by reducing the nine and a half year term of imprisonment on Count 1 to nine years and fix the parole eligibility date at 6 November 2025.