R v LBA[2023] QCA 93

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  I agree with the order proposed by Boddice JA and with his reasons.
2. [2]
   BODDICE JA:  On 17 October 2022, the applicant pleaded guilty to one count of trafficking in a dangerous drug, one count of possessing a dangerous drug in excess of 200 grams, and two counts of possessing a dangerous drug in excess of two grams.  The applicant also pleaded guilty to one summary charge of possessing utensils or pipes that had been used.
3. [3]
   On 19 October 2022, the applicant was sentenced to three years and seven months imprisonment on the count of trafficking, to be suspended after serving 10 months imprisonment, for an operational period of five years.  The applicant was convicted and not further punished in respect of the other counts.  He was sentenced to one month imprisonment in respect of the summary charge, to be served concurrently.
4. [4]
   The applicant seeks leave to appeal his sentence.  Should leave be granted, the sole ground of appeal is that the sentence imposed for the trafficking count was manifestly excessive, in all the circumstances.

Offences

5. [5]
   The trafficking count involved aiding others to carry on their wholesale business of trafficking, predominantly in cocaine, although the business expanded to include methylamphetamine and MDMA.
6. [6]
   The applicant’s trafficking period was between 31 October 2020 and 21 January 2021.  His acts of aiding involved storing cocaine and cash from the proceeds of the trafficking business; counting that cash; and, on rare occasions, collecting drugs or cash for the purpose of storing those drugs or cash.
7. [7]
   The storage of drugs was the subject of the remaining counts.  All three offences were committed at the end of the trafficking period when the applicant was found in possession of 317.7 grams of pure cocaine, 22.9 grams of pure methylamphetamine, and 72.6 grams of pure MDMA.
8. [8]
   The applicant was arrested on 20 January 2021.  He made immediate admissions, implicating one of the owners of the trafficking business.  He subsequently provided a sworn statement, pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld) (“the Act”).  The information contained in that statement was useful.  Further, although police already had knowledge of the applicant’s involvement in that trafficking business, the applicant’s admissions extended his own trafficking period by approximately eight weeks.

Sentencing remarks

9. [9]
   The sentencing judge recorded that although there had been delays in the prosecution, none of those delays had been the applicant’s fault, with the consequence that rehabilitation undertaken in the meantime by the applicant may properly be taken into account in mitigation of penalty.  Further, the applicant’s pleas of guilty were early and also mitigated penalty.
10. [10]
    The sentencing judge recorded that the applicant’s liability for the trafficking offence derived from him having aided the principals of that trafficking business, by storing the business’ substantial volumes of drugs and cash at the applicant’s workplace.
11. [11]
    The sentencing judge recorded that the applicant had met a principal in the trafficking business, SQ, two or three years before his involvement in that trafficking business.  A friendship had developed during which SQ randomly gave the applicant ecstasy and cocaine as gifts for personal use.  The sentencing judge noted that the applicant was, at that time, a recreational user of drugs, including methylamphetamine.
12. [12]
    The sentencing judge accepted that the applicant had been using methylamphetamine on a daily basis for two years preceding his commission of the offences.  However, there was no direct connection between that methylamphetamine use and his dealings with the trafficking principals, as it was not suggested the applicant had ever been rewarded with methylamphetamine.  The sentencing judge did, however, accept that the use of methylamphetamine likely impaired the applicant’s capacity to exercise appropriate judgment, although the applicant was apparently able to live quite functionally throughout the trafficking period.
13. [13]
    The sentencing judge recorded that as the applicant’s friendship with SQ developed, SQ began to use the applicant to store drugs and money, so as to distance himself from the incriminating possession of large amounts of cash and drugs, and to provide a storage location which was unlikely to attract suspicion.  The applicant had told police he would store up to $40,000 to $50,000 in cash, bundled into $5000 lots, and that the applicant had never been paid any money to store the drugs and cash.  The applicant was able to take a small amount of cocaine for personal use as payment for that storage.  The principal would also shout the applicant drinks at the bar.^[1]
14. [14]
    The sentencing judge recorded that the police interest in the applicant derived from their interest in SQ, and that police had gathered evidence of the applicant’s aiding in that trafficking business during approximately the final third of the charged trafficking period.  However, the applicant’s admissions provided police with evidence to cover the earlier two-thirds of the charged trafficking period.  That fact, that the applicant was the source of evidence against himself for that period of the trafficking period, was a mitigating consideration in accordance with the observations in AB v The Queen.^[2]
15. [15]
    The sentencing judge recorded that whilst the applicant had made those admissions, there was ample evidence without those admissions of the applicant’s aiding in what was a wholesale drug trafficking business.  Further, the applicant’s involvement in the transportation of very large amounts of drugs at the end of the trafficking period was, in its own right, a very serious aspect of his aiding in that business.
16. [16]
    The sentencing judge recorded that the trafficking business initially traded in cocaine, but branched into MDMA and methylamphetamine, with the business supplying at least 33 ounces of cocaine, for a turnover of at least $274,000; that the business also had large amounts in cash; and that a recorded exchange between the applicant and SQ made it clear that the applicant was well aware of the wholesale volume of drugs being stored, and that the applicant was aiding a trafficking business, which was making a lot of money by breaking the law.

17. [17]
    The sentencing judge accepted that when the applicant was found in possession of those large quantities of drugs the subject of the other counts, the pure drugs were found within substantially larger gross weight substances.  However, on any view, there was a “motherlode of three sets of schedule 1 drugs”.  The sentencing judge found that if the applicant was to be sentenced in respect of those possessions only, in the context of couriering them from one place to another, that conduct alone would attract a very significant jail term.
18. [18]
    The sentencing judge accepted that the applicant cooperated with police upon his arrest and made comprehensive admissions.  The sentencing judge said those matters would be taken into account in the applicant’s favour.
19. [19]
    The sentencing judge recorded that the applicant had a largely unremarkable personal background, having conducted a successful working life in pharmaceutical businesses after leaving school.  The applicant had a minor criminal history, which the sentencing judge considered irrelevant.  The applicant also had the love and support of his family, and references that attested the applicant was well-regarded and had long involvement in local sport and community organisations.
20. [20]
    The sentencing judge recorded that the prosecution accepted that the applicant’s involvement was not driven by any payment of money, with the benefit the applicant derived being taking small amounts of cocaine for personal use and being shouted drinks at the bar.  The sentencing judge also recorded that was such a minor reward for engaging in such high level criminal behaviour as to suggest it was not the only motivating or influencing factor.  In that context, the sentencing judge also recorded that a psychiatrist’s report opined that the applicant had an avoidant personality disorder, which was influential in the applicant having developed a hatred for conflict, and being prepared to do anything to avoid a conflict.
21. [21]
    The sentencing judge noted that that disorder was not a psychiatric disorder, and said it was to carry significantly less mitigating weight than actual mental illness.  The sentencing judge did, however, take into account that personality disorder in weighing the applicant’s moral culpability.
22. [22]
    The sentencing judge also took into account the fact that the applicant did not derive a particularly substantial commercial benefit from aiding in that trafficking business, but found sight could not be lost of the fact that the applicant had played a key role in allowing a commercial drug trafficking business to ply its trade in the community.
23. [23]
    The sentencing judge recorded that as a consequence of the delay in the prosecution, the applicant had undertaken rehabilitation, with the rehabilitation progress being substantial.  The applicant had also been able to continue in employment and remain compliant with bail conditions throughout the lengthy period between the applicant’s arrest and sentence.  The sentencing judge also accepted that the applicant was genuinely remorseful for his foolish involvement in such serious criminal activity.
24. [24]
    After referring to comparable authorities and the sentences imposed on SQ and another aider of the trafficking operation, the sentencing judge found that allowing for the applicant’s personal circumstances and mitigating factors, together with the applicant’s early pleas of guilty, AB v The Queen cooperation and the applicant’s cooperation pursuant to s 13A and s 13B of the Act, a head sentence of three years and seven months imprisonment was appropriate.  The sentencing judge found that to wholly suspend that sentence would result in a sentence which was an affront to community standards.
25. [25]
    The sentencing judge considered a just outcome was one that required the applicant to serve about one-quarter of his sentence in actual custody.  The sentencing judge ordered that the sentences of imprisonment be suspended after serving 10 months imprisonment, for an operational period of five years.

Submissions

26. [26]
    The applicant submits that a sentence requiring the applicant to serve actual custody was unreasonable or plainly unjust, such that there must have been some misapplication of principle, rendering the sentence manifestly excessive.
27. [27]
    The applicant submits that he was prepared to give evidence against the principals, and that police accepted that evidence was truthful and materially assisted in the case against those principals.  The applicant submits that evidence was more than “potentially useful”; it was “actually useful” because the principals decided to plead guilty.  Against that background, a wholly suspended sentence would not produce a result disproportionate to the objective gravity of the applicant’s offending and the circumstances of the applicant.
28. [28]
    The respondent submits that whilst the encouragement of offenders to inform is of high public policy, there must be a balance in the exercise of the discretion to discount the sentence for that cooperation.  A reduction so that the applicant served no time in actual custody would have resulted in disproportionate credit being given for that cooperation, ignoring the seriousness of his offending conduct.

Consideration

29. [29]
    Whilst the applicant cooperated by entering early pleas of guilty and making admissions of his own involvement, consistent with a greater involvement than that known by police, those factors, together with his strong mitigating personal circumstances and steps towards rehabilitation, were properly reflected in the imposition of what would have been the notional head sentence, but for his cooperation, pursuant to s 13A and s 13B of the Act.
30. [30]
    The applicant’s extensive and real assistance, pursuant to s 13A and s 13B, by the giving of truthful and significantly useful evidence in the prosecution of the principals of the trafficking operation, was also appropriately reflected by the imposition of an effective head sentence of three years and seven months imprisonment for the trafficking count.
31. [31]
    Once such a reduction had been made by the sentencing judge, it fell within a sound exercise of the sentencing discretion for the sentencing judge to determine that the applicant ought to serve a period of 10 months actual imprisonment.  Such a sentence was proportionate to the objective gravity of the applicant’s offending and his particular circumstances.^[3]
32. [32]
    The applicant pleaded guilty to aiding in a wholesale trafficking business operated by others.  He was a mature aged offender.  His participation was real and significant.  He knowingly stored large quantities of drugs and cash.  At the conclusion of the trafficking period, he was found in possession of a substantial quantity of three separate Schedule 1 drugs, which he was transporting for storage.  Such conduct rightly called for the imposition of a period of not insignificant actual imprisonment, notwithstanding the applicant’s significant cooperation, pursuant to s 13A and 13B of the Act.

Conclusion

33. [33]
    A requirement that the applicant serve 10 months in actual custody, for such significant involvement in aiding a wholesale trafficking operation, was neither plainly unreasonable nor unjust.  There was no misapplication of principle by the sentencing judge.
34. [34]
    The sentence imposed was not manifestly excessive.

Order

35. [35]
    I would order:

1. 1.
   Leave to appeal be refused.

36. [36]
    CROW J: I agree.