R v DAC[2023] QCA 53

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA: I agree with the reasons for judgment of Gotterson AJA and with the orders proposed by his Honour.
2. [2]
   GOTTERSON AJA: In late 2022, DAC^[1] pleaded guilty to trafficking in dangerous drugs (Count 1), possession of the dangerous drug testosterone in a quantity that exceeded 50 grams (Count 2), possession of three other dangerous drugs (Counts 3, 4 and 5), and unlawful production of testosterone (Count 6). The trafficking offence was alleged to have taken place between 22 December 2020 and 23 April 2021 at Brendale and elsewhere in Queensland. The possession and production offences were alleged to have occurred on 22 April 2021.
3. [3]
   That day DAC was sentenced on all counts in the Supreme Court at Brisbane. Convictions were recorded in each case. For Count 1, he was sentenced to a term of five years imprisonment to be suspended after serving 16 months and subject to his not committing another offence punishable by imprisonment within a period of five years. A serious drug offence certificate was issued for DAC in relation to this count. No further punishment was imposed for Counts 2 to 6.
4. [4]
   An application for leave to appeal against sentence was filed on behalf of DAC on 16November 2022. In these reasons I shall refer to him as “the Applicant”. The sole ground of appeal is that the sentence is manifestly excessive. This ground is centred upon the period of imprisonment that the Applicant must serve before his sentence on Count 1 is suspended.

Circumstances of the offending

5. [5]
   The Applicant was the owner of a supplement distribution business in the northern suburbs of Brisbane for which he used a small warehouse and a nearby storage unit. He resided in that general vicinity and owned a utility. In late 2020 he was identified as a person of interest by police. In December that year, they began an investigation into the trafficking of dangerous drugs by him.
6. [6]
   Whilst under investigation, the Applicant both sourced and supplied dangerous drugs through his business. He sourced the drugs from multiple suppliers. At a wholesale level, he trafficked primarily in the steroid testosterone and in 1-3 Dimethylamylamine (DMAA), an amphetamine derivative used to enhance physical performance and promote weight loss. He also sourced and supplied street level quantities of cocaine and 3, 4Methylenedioxymethamphetamine (MDMA) upon customer request. His trafficking was motivated by profit.
7. [7]
   During this time, the Applicant sold dangerous drugs on nine occasions to a Law Enforcement Participant, the first and last occasions being on 23 December 2020 and 2April 2021 respectively. These transactions involved sales of cocaine, MDMA and testosterone for a total consideration of $12,910. They evidenced the offence of unlawfully trafficking in those dangerous drugs as alleged in Count 1.
8. [8]
   At the time of the offending, cocaine, MDMA and testosterone were dangerous drugs under Schedule 1 of the Drugs Misuse Regulation 1987 (Qld). DMAA was listed as a Schedule 2 dangerous drug.
9. [9]
   On 22 April 2021, police executed search warrants at the Applicant’s home, his two business addresses and his vehicle. Quantities of dangerous drugs, various items of equipment used in the production of dangerous drugs, and some $12,100 in cash were located. A forfeiture order in respect of the cash was made at sentence.
10. [10]
    The full extent of the Applicant’s trafficking in the period up to the date of execution of the warrants is unknown to police given that he used a secure messaging mobile phone application. Some indication of the scale of it is given by the amount of cash that was found when the warrants were executed.
11. [11]
    The possession offences were based on quantities of testosterone, MDMA, cannabis and a fifth dangerous drug, methandienone, respectively which were located when the warrants were executed at the Applicant’s home and business premises. The testosterone the subject of Count 2 was contained within 3.54 kilograms of liquid packaged into 257 small vials or bottles.
12. [12]
    The production offence was based on various items of equipment found in black toolboxes at the Applicant’s storage unit. These items exhibited features consistent with their having been used in the production of testosterone.^[2] The Crown accepted that the Applicant did not own these items and that his plea of guilty to the count was on the basis that by storing them, he had aided or assisted in the production of testosterone.

The Applicant’s personal circumstances, antecedents and rehabilitation

13. [13]
    The Applicant was 44 years old at the time of the offending. He had no prior criminal history. He did not offend while on bail pending sentence.
14. [14]
    Evidence tendered at the sentence hearing^[3] indicated that the Applicant and his wife had been happily married for 24 years. They have two children. He had been the sole breadwinner for a family to which he was dedicated.
15. [15]
    After completing Year 10 in 1992, the Applicant worked initially as a roof tiler before moving into information technology. He attained a senior management role in that field. He left that role to operate his own business selling sporting supplements.
16. [16]
    The business underwent a significant downturn which appears to have been precipitated by the onset of COVID. At that point, the Applicant began misusing substances himself and was introduced by others in the supplements industry to unlawful trading in steroids. The offending to which I have referred ensued.
17. [17]
    After he had been arrested and released on bail, the Applicant undertook a number of significant steps towards rehabilitation. He ceased drug taking, proof of which was verified by hair follicle testing. He attended sessions at the Metro North Mental Health-Alcohol and Drug Service as well as seven consultation sessions at North Brisbane Psychologists. His psychologist described him as being “at a very low risk of reoffending” and as showing “great remorse when talking about the mistakes he had made”.
18. [18]
    The Applicant severed connections with those with whom he had engaged in criminal conduct. He resumed employment in the information technology field. His employer spoke very highly of his performance since his return to that role. In addition, the Applicant has participated in coaching a local junior rugby team.
19. [19]
    In this context, it is appropriate to note that the Applicant was sentenced on the basis that he had entered early pleas of guilty. His having done so was consistent with, and arguably a telling manifestation, of the great remorse of which his consulting psychologist had spoken.

Sections 9(2) and 13B Penalties and Sentences Act 1992 assistance

20. [20]
    At the sentence hearing, evidence was tendered to the effect that shortly after his arrest, the Applicant provided certain information to police in relation to trafficking by others of which he himself did not have first hand knowledge. It is unnecessary for present purposes to detail that information or its utility for police investigations. The learned sentencing judge took that evidence into account in determining the Applicant’s sentence.

Sentencing remarks

21. [21]
    The learned sentencing judge outlined in some detail the circumstances of the Applicant’s offending. Her Honour mentioned decisions of this Court referred to by counsel for the Crown and for the Applicant respectively and a number of sentences at first instance referred to by the latter.^[4] She noted Crown submissions that in making steroids a Schedule 1 drug in 2014, the legislature had indicated that offending conduct in respect of such drugs should attract the same or similar penalty to that in respect of other Schedule 1 drugs such as methamphetamine or MDMA;^[5] and that sentencing should not proceed on the basis that one Schedule 1 drug is, in some way, less anti-social than another.^[6]
22. [22]
    The learned sentencing judge also noted that the Crown acknowledged that the Applicant’s personal circumstances weighed in his favour as did the plea of guilty. Against that, the Crown submitted that the offending was “sophisticated and at a high level”; that the Applicant was involved in each step of the trafficking from production to packaging and supply; and that his involvement continued notwithstanding that amajor supplier and customer of his had been arrested.^[7] Hence, general and personal deterrence were particularly important in the Applicant’s case.^[8] It was submitted that comparable cases called for a head sentence in the range of six to seven years.^[9]
23. [23]
    Her Honour noted that counsel for the applicant also submitted that the seriousness of this type of offending and the need for both general and personal deterrence required a significant head sentence to reflect overall criminality.^[10] Such a sentence, counsel submitted, was in the order of four years imprisonment having regard to other sentences which, unlike those relied upon by the Crown, did not involve wholesale trafficking in cocaine, MDMA or methamphetamine.^[11] The “powerful combination of mitigating factors” would result in suspension at a point earlier than one-third, it was further submitted.^[12]
24. [24]
    Further and by way of summarising his counsel’s submissions, her Honour said:

“However, your personal circumstances, character, remorse and outstanding rehabilitation efforts are such that any such term can probably be suspended after a comparatively short period of actual custody.”^[13]

As to that submission, her Honour responded:

“I agree with that because I am sentencing a man that is a mature man. You were in your 40s at the time that you conducted this trafficking business. You had no criminal history. For four months you got yourself involved and you sold drugs. You had been on bail since that and there has been no offending that has been before me, at least.”^[14]

25. [25]
    Later in the sentencing remarks, the learned sentencing judge observed:

“In all of the circumstances, I accept your counsel’s submission that your offending was situationally motivated and reflective of the prevailing circumstances at the time. That is, at the time, your business had undergone a significant downturn and you faced considerably uncertainty. There is no suggestion that you were involved in criminal activity at any level prior to this. You commenced misusing substances and were introduced by others in the supplement industry to your illegal trade in steroids. The referees confirm your prosocial views and activities and whilst you became involved with acriminal element, your counsel submits that you have now completely severed yourself from such persons. You immediately sought psychological assistance and you have attended nine sessions at the Metro North Mental Health.

In addition, you have sought and undergone an additional seven sessions with a private psychologist. Your remorse appears to be genuine and your risk of reoffending is considered to be very low. You are no longer misusing substances, and that was confirmed by ahair follicle test result. I have taken into account your rehabilitation and I have taken into account your remorse. Clearly, you were using and misusing drugs at the time that you were engaged in this business. In my view, taking into account all the things that I must, the appropriate sentence for count 1, which is trafficking in dangerous drugs, is five years imprisonment. I order that the term of imprisonment be suspended after serving a period of 16months imprisonment, and you must not commit another offence punishable by imprisonment within the period of five years if you wish to avoid being dealt with for the suspended term of imprisonment.

In relation to all of the other charges that you have pleaded guilty to, Iconvict and not further punish. In my view, the sentence that I have imposed for count 1 takes into account the criminality of your offending.”^[15]

26. [26]
    At that point, her Honour closed the court to deal with the assistance that the applicant has given. Having summarised it, she continued:

“But I have taken that into account and, accordingly, I have reduced and tempered the sentence. And, in my view, taking into account everything that I have sentenced you to five (years) and I have reduced the usual one-third which would be 20 months down to 16 months and I have wholly suspended that.”

It is tolerably clear, in my view, that the reduction from 20 months (one-third of five years) to 16 months was made solely on account of the assistance given by the Applicant. Counsel who appeared on this application accepted that this was so.^[16]

The ground of appeal and the parties’ contentions as to it

27. [27]
    As noted, the sole ground of appeal is that the sentence is manifestly excessive. The dimension in which it is said to be manifestly excessive is not left by the Applicant to inference from a comparison with other sentences. It is articulated as arising from a failure to reflect sufficiently the extent of mitigation present in his case.
28. [28]
    In short, the Applicant contends that the starting point of one-third (20 months) referred to by the learned sentencing judge allowed for the plea of guilty but not for his exceptional circumstances of mitigation. The allowance of a further four months was solely for the assistance given. In the result, no discernible allowance was made for those mitigating circumstances. An appropriate allowance for such circumstances it was submitted, would be to reduce by a further four months the time the Applicant must serve in prison. That is to say that his sentence should be suspended after serving 12 months.
29. [29]
    The Crown, on the other hand, contends that it was at the point of adopting a head sentence of five years for the overall criminality of the offending that her Honour is to be understood as having moderated for such circumstances. Due allowance for them had been made and no further allowance need to have been made in the sentence.

Discussion

30. [30]
    I propose to consider first the Crown’s contention that the learned sentencing judge allowed for the exceptional circumstances of mitigation in fixing the head sentence at five years. To my mind, it is not evident that her Honour did so. In the first place, she did not expressly say that she was doing that. There was no reference to a putative sentence that was being moderated on account of such circumstances. Nor do the sentencing remarks give rise to an inference that there was such moderation. To the contrary, there is an indication in them that the head sentence was intended to reflect the overall criminality of the Applicant’s offending.^[17] I would therefore reject this contention.
31. [31]
    Turning to the Applicant’s contentions, I note that they are dependent upon a proposition that “the usual one-third” to which her Honour referred in the closed-court remarks allowed only for the plea of guilty. That proposition finds support in several decisions of this Court.
32. [32]
    In R v Ungvari,^[18] White JA stated:

“As a matter of general practice in this jurisdiction, the one-third mark of the sentence of imprisonment is seen as an appropriate starting point to recognise a plea of guilty. It may be adjusted up or down as the particular circumstances warrant”.^[19]

More recently, in R v Watson,^[20] this Court (McMurdo and Bond JJA and KellyJ) cited this statement with apparent approval^[21] and even used the expression “the usual one-third point” to refer to the mitigation for a plea of guilty.^[22]

33. [33]
    Once that proposition is accepted, as I think it should be, one is driven to the conclusion that the learned sentencing judge did not make any discernible allowance for the exceptional circumstances of mitigation in this case. That she did not do so is, in my view, somewhat of an anomaly given her apparent acceptance of the submission by the Applicant’s counsel at sentence that the term of imprisonment could probably be suspended after a comparatively short period of actual custody.^[23] It is an anomaly that requires correction.
34. [34]
    For these reasons, I conclude that the Applicant has established that his sentence is manifestly excessive.

Disposition

35. [35]
    Accordingly, I consider that leave to appeal should be granted and the appeal allowed. I would accept the Applicant’s submission that his sentence should be varied by reducing by a further four months the time he must serve in prison in order to allow for his exceptional circumstances of mitigation.

Orders

36. [36]
    I would propose the following orders:

3. 1.
   Application for leave to appeal granted.

3. 2.
   Appeal allowed.

3. 3.
   Vary the Applicant’s sentence of imprisonment by substituting 12 months for 16 months as the period after which his sentence is to be suspended.

37. [37]
    BODDICE AJA: I agree with Gotterson AJA.