R v BEM[2024] QCA 175

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 28 March 2024, the applicant pleaded guilty to trafficking in the dangerous drug methylamphetamine between 1 June 2020 and 25 February 2021 (count 1).  She also pleaded guilty to another 11 counts on the same indictment that were connected to the trafficking or were offences that were detected when the police executed a search warrant at the applicant’s address on 24 February 2021.  The other offences were receiving property obtained from trafficking (count 2); two counts of unlawful supply of the dangerous drug cannabis (counts 3 and 4); possessing property obtained from trafficking (count 5); possessing the dangerous drug methylamphetamine in excess of 2 grams (count 6); possessing anything used in connection with trafficking a dangerous drug (count 7); possessing a relevant substance gamma butyrolactone (count 8); possession of the dangerous drug cannabis (count 9); unlawful possession of a category H weapon (count 10); possession of the dangerous drug MDMA (count 11); and contravening order about device information from digital device (count 12).
2. [2]
   A sentence of imprisonment of five years and six months was imposed for count 1.  The applicant was convicted and not further punished in respect of counts 2, 5, 6 and 7.  The applicant was sentenced to a concurrent sentence of three months’ imprisonment for each of counts 3, 4, 9, 11 and 12.  The applicant was sentenced to a concurrent sentence of six months’ imprisonment for each of counts 8 and 10.  All the offending was committed during the operational period of a suspended term of imprisonment of 12 months that was imposed on the applicant in the District Court on 5 March 2020 for assault occasioning bodily harm whilst in company that was committed on 9 April 2018.  The suspended term of imprisonment was activated in full and ordered to be served concurrently with the sentences imposed on 28 March 2024.
3. [3]
   A pre-sentence custody declaration was made in respect of the 292 days which the applicant had spent in pre-sentence custody between 24 February and 23 April 2021 (59 days) and between 8 August 2023 and 27 March 2024 (233 days) as imprisonment already served under the sentences imposed on 28 March 2024.  It was ordered that the applicant be eligible for parole on 28 March 2025.  The effective head sentence imposed for the drug offending was imprisonment for five years and six months of which the applicant was required to serve almost 22 months (which was approximately one-third of the sentence) before being eligible for parole.
4. [4]
   The applicant relies on one ground for the application for leave to appeal against the sentence.  It is that the sentence arose from a misapplication of s 9(2)(gb) and s 9(10B) of the Penalties and Sentences Act 1992 (Qld) (the Act).

Relevant legislation

5. [5]
   As at the date of the applicant’s sentencing, a factor of which the Court was bound to have regard was set out in s 9(2)(gb) of the Act:

3. “(gb)
   without limiting paragraph (g), the following—

3. (i)
   whether the offender is a victim of domestic violence;

3. (ii)
   whether the commission of the offence is wholly or partly attributable to the effect of the domestic violence on the offender;

3. (iii)
   the offender’s history of being abused or victimised;”

6. [6]
   Paragraph (g) of s 9(2) of the Act requires the Court to have regard to “the presence of any aggravating or mitigating factor concerning the offender”.  Paragraph (gb) was first inserted into the Act by the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 (the 2023 Amendment Act).  Sub-paragraph (iii) was added to paragraph (gb) by the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024 (the 2024 Amendment Act) which commenced on 18 March 2024.  Section 9(10B) was inserted into the Act by the 2023 Amendment Act:

3. “In determining the appropriate sentence for an offender who is a victim of domestic violence, the court must treat as a mitigating factor—

3. (a)
   the effect of the domestic violence on the offender, unless the court considers it is not reasonable to do so because of the exceptional circumstances of the case; and

3. (b)
   if the commission of the offence is wholly or partly attributable to the effect of the domestic violence on the offender—the extent to which the commission of the offence is attributable to the effect of the violence.”

7. [7]
   These amendments were responsive to recommendations from the reports by the Women’s Safety and Justice Taskforce entitled “Hear Her Voice”.

Circumstances of the offending

8. [8]
   On at least 15 occasions during the trafficking period, the applicant provided methylamphetamine in quantities ranging between two to four ounces on each occasion to a courier who delivered it to her father in a regional centre.  He was conducting a high-level street to low-level wholesale trafficking business.  Her father had at least 69 customers throughout the trafficking period.  The applicant assisted her father in rectifying the poor quality of methylamphetamine that she had supplied to him in early October 2020.  She was aware that her father had at least three employees working for him on-selling quantities of methylamphetamine.  Apart from the applicant’s liability for the offence in aiding her father to conduct his trafficking business, the applicant also supplied methylamphetamine to at least one of her own customers, one of which owed her $22,000 at one point.  It was common ground that the applicant who was unemployed during the trafficking period received at least $59,199 in unexplained income into her bank account during the trafficking period that was the subject of count 2.  On 24 February 2021, the police located a total of $147,775 at the applicant’s home which was the subject of count 5.  The applicant accepted that the sum of $147,775 in her possession was obtained from trafficking but asserted it belonged to her father.  The applicant threatened the customer who owed her $22,000 with violence if he did not repay the debt.
9. [9]
   There was a delay between the applicant’s arrest and her committal, as there was cross-examination of a witness at the committal.  After the indictment was presented, the matter was listed for a contested sentence.  Eventually the contest was not pursued after one amendment was made to the statement of facts which was a smaller amendment than that sought in the contest.

The applicant’s antecedents

10. [10]
    The applicant was aged 39 to 40 years at the time of the offending.  The applicant swore an affidavit on 18 September 2023 that was in the applicant’s bundle of material that was before the sentencing judge (exhibit 9).  Relevantly for the issue the subject of this application, that affidavit disclosed domestic violence that was committed between her parents in the applicant’s presence, violence and abuse committed by her father against her and her siblings, and that she also experienced lewd and suggestive behaviour and inappropriate touching from boys at the boys’ home where the family lived when her parents were the “cottage parents” which her father brushed off as “boys being boys”.  She commenced a relationship with the father of her children (the partner) when she was aged 13 years.  She described that after a period of about five years, the relationship deteriorated and the partner became controlling of, and violent to, her.  She would be physically and mentally abused in front of others.  She remained with the partner for about 23 years and the relationship ended when his violence was directed towards their children.  She recorded that, with hindsight, the relationship was a toxic one.
11. [11]
    The applicant had a few entries in her criminal history between 1998 and 2008 for minor drug offending.  She was dealt with in the Magistrates Court in 2011 for possession of weapons category D/H/R for which no conviction was recorded and she was fined $350.  The conviction in March 2020 for the assault occasioning bodily harm whilst in company arose out of her attack on the partner’s new girlfriend to whom he gave jewellery which belonged to the applicant who wanted the jewellery back but which the new girlfriend sold when she ended the relationship with the partner which had lasted only for a brief period.

The sentencing hearing

12. [12]
    For the purpose of the sentencing, the applicant was assessed by psychologist Dr Luke Hatzipetrou whose report was dated 25 March 2024.  Dr Hatzipetrou was provided with the applicant’s affidavit sworn on 18 September 2023 and he elicited further relevant information from the applicant that was set out in the report.  The sentencing proceeded on the basis that the applicant relied on the factual matters which she had placed before Dr Hatzipetrou that were recited in his report.
13. [13]
    The matters noted in the report included that the applicant had described her father’s propensity for intimidation and control and that she was fearful of opposing her father or “saying no”.  The applicant referred to multiple incidents of physical abuse perpetrated by her father and that he used intimidation and violence to control the family relationships.  Although during the course of the applicant’s relationship with the partner, she had obtained domestic violence orders, her many earlier attempts to leave the partner were unsuccessful.  When the partner began abusing methylamphetamines, the partner engaged in extreme acts of violence.  During the relationship with the partner, the applicant experienced “prolonged periods of feelings of worthlessness, low self-esteem and low self-worth”.

The sentencing remarks

14. [14]
    After reciting the circumstances of the offending and the applicant’s antecedents and the steps the applicant had taken towards her rehabilitation, the sentencing judge referred at length to the contents of Dr Hatzipetrou’s report.  The sentencing judge noted that it was clear from Dr Hatzipetrou’s report that the applicant “had a substantially prejudicial upbringing in which [she was] subjected to domestic violence and sexual violence of various kinds over a lengthy period”.  The sentencing judge noted that the applicant had informed Dr Hatzipetrou that when her father had asked for her help in attempting to source methylamphetamines, the applicant claimed she was unable to say “no” and referred to her father’s “history of intimidation, persuasiveness and coercion”.
15. [15]
    The sentencing judge referred to the comparable authorities dealing with the trafficking that had been discussed with counsel during the submissions and noted that they suggested “as a general proposition, an offence of this kind could find a person being sentenced for somewhere between five to seven, perhaps eight years, depending, of course, on all the facts”.
16. [16]
    The sentencing judge explained that he was imposing a sentence “which takes into account the matters that are in your favour but recognises that there has to be, in cases like this, reference to and acknowledgement of the need for deterrence … there is also the element of punishment which needs to always be considered”.  The sentencing judge then stated:

“I have considered what has been put to me about the recent amendments to the Penalties and Sentences Act, but, so far as these circumstances are concerned, I do not see that they require anything more than taking into account and giving proper weight to the matters to which I have referred concerning your early life, your upbringing and your later relationships with men.

I take into account that you do have family commitments, but, while that is a matter for consideration, it is not a matter which can overwhelm, just as considerations of general deterrence should not be taken to overwhelm the sentence that is imposed.”

17. [17]
    The sentencing judge then prefaced the imposition of the sentences by expressly referring to the material that had been put before the Court “and taking into account all the factors advanced on your behalf in mitigation”.  After imposing the sentences for each count, the sentencing judge then stated:

“In order to properly take into account the factors raised on your behalf, I will activate the whole of the suspended sentence but order that it be served concurrently with this sentence on the trafficking charge.”

Did the sentencing judge misapply s 9(2)(gb) or s 9(10B) of the Act?

18. [18]
    As the Explanatory Notes for the Bill that was enacted as the 2023 Amendment Act noted, s 9(2)(gb) of the Act provides additional matters to which a court must have regard in sentencing an offender.  Those Explanatory Notes dealt with s 9(10B) as follows:

“Subclause (2) inserts section 9(10B) which provides that in determining the appropriate sentence for an offender who is a victim of domestic violence, the court must treat as a mitigating factor the effect of domestic violence on the offender, unless the court considers it is not reasonable to do so because of the exceptional circumstances of the case, and the extent to which the commission of the offence is attributable to the effect of domestic violence if the commission of the offence is wholly or partly attributable to the effect of domestic violence.”

19. [19]
    Paragraph (gb) of s 9(2) of the Act adds an additional mitigating factor for an offender to which the Court must have regard in sentencing the offender, if that mitigating factor were applicable.  Section 9(10B) mandates that the Court must treat the effect of domestic violence on the offender as a mitigating factor, unless the Court considers it is not reasonable to do so, because of the exceptional circumstances of the case, and the extent to which the commission of the offence is attributable to the effect of domestic violence (where that is the case).  The reform effected to s 9 of the Act by the 2023 and 2024 Amendment Acts was to make express the circumstances in which the Court must treat domestic violence on the offender as a mitigating factor and therefore to ensure consistency in the approach of all judicial officers to the mitigating effect of domestic violence on an offender.  There is nothing in the terms of s 9(2)(gb) or s 9(10B) or the Explanatory Notes and other relevant extrinsic material relied on by the applicant from the reports of “Hear Her Voice” that alters the process of sentencing which involves instinctive synthesis on the part of a sentencing judge, as explained in Markarian v The Queen (2005) 228 CLR 357 at [37].
20. [20]
    The only finding that a sentencing judge is bound to make pursuant to s 9(10B) of the Act is whether there are exceptional circumstances that justify the Court in not treating the effect of the domestic violence on the offender as a mitigating factor.  Where the Court accepts evidence that an offender has been the victim of domestic violence or the commission of the offence is wholly or partly attributable to the effect of the domestic violence on the offender or the offender has a history of being abused or victimised, those circumstances must be treated as a mitigating factor in conjunction with the other factors relevant to the sentencing (subject to the express exception in s 9(10B)).  The weighing up of all the relevant factors and the balancing of the mitigating factors against the aggravating factors remains a matter for the sentencing judge.
21. [21]
    It is apparent from the sentencing remarks that the sentencing judge undertook the process of instinctive synthesis in arriving at the relevant sentences and treated the effect of domestic violence on the applicant experienced both through her father and with the partner, the extent to which the commission of the offending was attributable to the effect of domestic violence on her and her history of being abused or victimised as a mitigating factor.  The effective head sentence of imprisonment for five years and six months was at the lower end of the range of sentences that were the subject of submissions before the sentencing judge and significant mitigation of the sentence flowed from the sentencing judge’s decision to make the fully activated suspended term of 12 months’ imprisonment concurrent with the sentences for the drug offences.  That was particularly so, when the trafficking period commenced within three months of the imposition of the suspended term of imprisonment for the assault occasioning bodily harm whilst in company.  There was no misapplication of s 9(2)(gb) or s 9(10B) of the Act.

Order

22. [22]
    The order which should be made is: Application for leave to appeal against sentence refused.