R v GBP[2024] QCA 200

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I agree with the reasons for judgment of Brown JA and the order proposed by her Honour.
2. [2]
   BROWN JA:  This is an application for leave to appeal against a sentence handed down by Ryan J in relation to serious drug offences committed by the applicant.
3. [3]
   On 7 December 2023, the applicant pleaded guilty to the following counts:

   1. trafficking in cocaine and MDMA (count 1);
   2. supplying cocaine and MDMA (count 2);
   3. supplying cocaine (count 3);
   4. supplying cocaine and MDMA (count 4);
   5. supplying cocaine (count 5);
   6. supplying cocaine (count 6);
   7. possessing cocaine in excess of 2 grams (count 7);
   8. possessing testosterone, psilocin and psilocybin (count 8); and
   9. possessing tainted property obtained from trafficking in a dangerous drug (count 9).
4. [4]
   On 8 December 2023, Ryan J sentenced the applicant on count 1 to a term of eight years imprisonment, with a parole eligibility date set after he had served three years.  He was convicted and not further punished in relation to counts 2-9.  The applicant also pleaded guilty to a summary charge relating to the possession of fireworks for which he was also convicted but not further punished.
5. [5]
   Although the application originally advanced two grounds of appeal, the applicant sought leave to amend his notice to argue the sole ground that the sentence imposed was manifestly excessive in all of the circumstances.  That leave was granted during the hearing before this Court.

Circumstances of offending

6. [6]
   An agreed statement of facts, which was tendered by the Crown during sentencing submissions, was the factual basis of the sentencing of the applicant.
7. [7]
   In early 2020, police from the State Drug Squad commenced an operation to target the trafficking of dangerous drugs within Southeast Queensland.  The applicant was targeted and subjected to surveillance by police as part of that operation.
8. [8]
   The basis for count 1 on the indictment was that the applicant trafficked in cocaine and MDMA for a period of just over five weeks, between 8 April 2020 and 15 May 2020.  The facts revealed that the applicant operated a sophisticated wholesale business of trafficking in cocaine and MDMA for profit.  He utilised encrypted messaging applications, stored drugs in cars, had employees and supplied in discreet locations.  At the time of sentence, the full extent of the applicant’s trafficking, including his customer base, number of employees, amount of turnover, suppliers and the frequency with which he transacted was unknown.
9. [9]
   Counts 2 to 5 and 7 and 8 were said to be particulars of count 1.  Counts 2 to 5 involved supplies to customers or to law enforcement participants.  The relevant qualities supplied were:

   1. in relation to count 2, 75.91 grams of pure cocaine and 104.353 grams of pure MDMA for $39,500;
   2. in relation to count 3, 42.84 grams of pure cocaine for $24,000;
   3. in relation to count 4, 45.216 grams of pure cocaine and 39.154 grams of pure MDMA for an agreed price of $27,000; and
   4. in relation to count 5, 13.387 grams of pure cocaine.
10. [10]
    Count 6 involved the supply of 0.323 grams of pure cocaine to a person who assisted the applicant in his trafficking and who was ultimately charged on the same indictment.
11. [11]
    Count 7 related to the possession of 159.4 grams of pure cocaine, located in a car which was searched by police.
12. [12]
    Count 8 related to 22.421 grams of substance which contained testosterone and a small quantity of psilocin and psilocybin.
13. [13]
    Count 9 related to the applicant’s possession of $7,440 in cash, which was discovered by police following the execution of a search warrant on the applicant’s house.
14. [14]
    The trafficking was also alleged to have encompassed six unparticularised supplies involving sums of money ranging from $7,500 to $39,500.
15. [15]
    The statement of facts revealed that between 17 April 2020 and 19 April 2020 the applicant supplied one of his customers on three occasions, for $7,500, $23,700 and $39,500.  In addition, the applicant supplied another customer between 9 April 2020 and 6 May 2020 with dangerous drugs on three occasions, for amounts of $14,600, $15,800 and $15,800.
16. [16]
    Those customers owed a significant amount of money to the applicant.  The first customer had a debt of $76,200 as at 17 April 2020, while the second customer had a debt of $22,920 as at 29 April 2020.  Those debts altered during the period of trafficking and the applicant messaged the customers on 13 May 2020 updating the amount owing with a breakdown of how it was calculated.  Some coded language was used to refer to each customer.  Apparently three other customers were referred to, but the amount of their debt was not identified.
17. [17]
    The applicant had two employees who were identified, a courier and a further employee who assisted in the trafficking.
18. [18]
    Her Honour noted that the applicant was dealing in significant amounts of drugs as a wholesaler, for tens of thousands of dollars and ounce amounts.  She observed that it was the applicant’s business and that he was in charge with two employees.  She considered that the business was sophisticated and wholesale.

Other factors considered by the Sentencing Judge

19. [19]
    In addition to the circumstances of the offending, the sentencing judge considered the applicant’s antecedents and mitigatory factors, which included that:

    1. He entered pleas of guilty.
    2. He was 29 and 30 when the offending conduct occurred and was 33 at the time of sentence.^[1]
    3. He has a prior criminal history which commenced in 2006 with an offence of dishonesty.
    4. Significantly, as part of his criminal history, the applicant was sentenced in 2014 after pleading guilty to nine counts of importing a border-controlled drug.  For this offending, he was sentenced to an effective sentence of two years imprisonment with immediate release on recognisance.  He was sentenced on the basis that he imported the relevant drugs for personal use and from the UK, where they were not illegal to possess.  During the 2014 sentence, Mullins J (as her Honour then was) accepted that the applicant presented with very good prospects of rehabilitation and considered he was remorseful.
    5. The applicant committed offences of forgery and uttering in 2020 whilst on bail for the offences which were to be dealt with by the sentencing judge.  These related to falsified medical certificates utilised in relation to his bail conditions which was an aggravating feature of the offending.  Her Honour noted that the dishonest aspect of the applicant’s character therefore re-emerged in 2020.
    6. He presented 16 clear drug tests, demonstrating his abstinence from drug use.  He attended a number of online drug recovery meetings.
    7. The applicant was gainfully employed at the time of sentence and engaged in further study.
    8. Favourable references were tendered along with a report by a psychologist which opined that the applicant had a low risk of reoffending if he achieves his goals of abstaining from drug use and avoiding contact with drug associates who condone or promote drug use.
    9. The psychologist attributed the offending to the applicant’s cocaine dependency and association with a pro-drug network.
    10. Ryan J took into account that the psychologist report did not identify any traumatic trigger for the offending and that, while he had told the psychologist that he was taking more cocaine than he could pay for, he was still capable of earning a decent living.
    11. She also noted that the psychologist’s assessment of his reoffending was low and his prognosis for the future was positive but recognised that had also been said by the psychologist in relation to the earlier sentence before Mullins J.  While Ryan J noted he appeared to be able to function at a high level on the basis of the references provided, notwithstanding his use of cocaine, she took into account the way in which cocaine consumption impacts decision-making, judgement, risk, tolerance and inhibition.
    12. The applicant had done well to achieve rehabilitation, which was self-motivated and reflected applicant’s intelligence.
    13. The applicant had some remorse.

Contentions

20. [20]
    Mr Caruana, the applicant’s counsel, submitted that the duration of trafficking is a significant factor in determining the criminality when settling upon the appropriate sentence.  The applicant contends that, given the relatively short period of the trafficking, her Honour’s “starting point”, taking into account his plea of guilty and evidence of rehabilitation, was manifestly excessive and resulted in a sentence which was manifestly excessive.  In that regard, her Honour stated:

“Bearing in mind all those comparable decisions, I have concluded that the starting point, in your case, taking into account that this is a guilty plea, is 10 or 11 years imprisonment. While your trafficking period was short, it involved wholesale quantities and a large amount of money changing hands. You were the principal of the trafficking business. You had a courier and another assistant. You had access to large quantities of drugs.”

21. [21]
    The applicant’s counsel contends that, when regard is had to a number of authorities where a ten-year sentence was imposed, to which her Honour was referred, it is apparent that, while the applicant’s trafficking business shared some features with the other trafficking offenders, the distinguishing feature in his case was the shorter length of the period of trafficking.  According to the applicant, that feature reduced the criminality of the applicant’s offending, such that the starting point for his offending, taking account of all circumstances, aside from the mitigating factor of co-operation, should have been 8-9 years.
22. [22]
    The Crown contends that, based on the comparable decisions of the Court of Appeal that were relied on as yardsticks, it cannot be concluded that the notional starting head sentence of 10 years was manifestly excessive.  According to Ms Dennis, who appeared on behalf of the Crown, any examination of the applicant’s trafficking business demonstrates it was substantial trafficking as characterised by Fraser JA in R v McGinniss.^[2]

Was the sentence manifestly excessive?

23. [23]
    In order to establish a sentence is manifestly excessive, it is not enough to establish that a sentence was different from the sentences imposed in other matters or that it was open in the circumstances to impose a different sentence.  It must be demonstrated that the difference is such that the court “is driven to conclude that there must have been some misapplication of principle”^[3] or that sentence is “unreasonable or plainly unjust”, such that, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.^[4]
24. [24]
    Comparable authorities serve as yardsticks in determining an appropriate sentence, but it is rare that a case will have all the same features as the one before a court.
25. [25]
    The length of trafficking is, of course, a matter to be considered but is only one of the factors relevant to assessing the nature of the business and not determinative of the appropriate sentence.
26. [26]
    Justice Muir (with whom Williams and Jerrard JJA relevantly agreed) said the following in R v Bradforth:^[5]

“Major determinants of penalty in trafficking cases include the type of drugs supplied, the quantity of the drugs, their value, the nature of the venture or undertaking, and whether the activities are commercial or are engaged in to feed a habit. In all cases, however, regard must be had to the maximum penalties imposed by statute and the recognition by the Legislature and the courts that the purveying of drugs of the nature of those under consideration, however motivated, has the potential to cause much individual suffering, as well as social harm and decay.”

27. [27]
    In relation to the scale of trafficking engaged in by the applicant:

    1. it was for five weeks;
    2. the business was well established and sophisticated;
    3. it was for profit, even if the applicant was a user of cocaine;
    4. the applicant was the principal and had two employees;
    5. the business was wholesale trafficking which involved two schedule 1 drugs, cocaine and MDMA;
    6. the particularised suppliers which were the subject of counts 2 to 6 reveal that in the period of the trafficking he supplied 332.722 grams of substance containing 177.353 grams of pure cocaine and 206.479 grams of substance containing 143.684 grams of pure MDMA;
    7. there were six unparticularised supplies for amounts totalling $76,200 to one customer and $46,200 to the other customer;
    8. the applicant was able to source large amounts of the drugs and was found to be in possession of 159.4 grams of pure cocaine in 308.5 grams of substance separated into 12 packaged commercial amounts at the time of his arrest;
    9. the customers which he supplied owed significant debts, as high as $76,200 for one customer on one occasion; and
    10. the full scale of the business was unknown.
28. [28]
    The applicant did have a relevant criminal history and, in particular, had been given a lenient sentence by Mullins J in 2014 for nine counts of importing a border-controlled drug.  He had expressed remorse at that time, had apparently moved away from drugs and peers engaged in that world and had a psychologist report suggesting that he was at low risk of reoffending.  The same was suggested before Ryan J in this case.
29. [29]
    The starting point for his sentence had to take account of a number of mitigating circumstances in his favour which were taken into account by her Honour and are outlined above in terms of his steps towards rehabilitation, plea of guilty, references and a psychologist report supporting his prospects of rehabilitation and the fact that his drug addiction contributed to some extent to his offending.
30. [30]
    However, as noted by Ryan J, notwithstanding his stated level of addiction to the psychologist, he had been able to function at a high level and carry on a sophisticated business, which was relevant to his moral culpability.  As her Honour observed, it was his business.
31. [31]
    The applicant sought to demonstrate the strength of his argument by referring the Court to the cases of R v Castner,^[6] R v Nunn,^[7] R v Feakes^[8] and R v Corbett.^[9]  A number of those decisions involved a review of other sentencing decisions as to trafficking.
32. [32]
    In R v Feakes, the applicant, Mr Feakes, contended a sentence of ten years was excessive.  Mr Feakes was a mature offender of similar age to the applicant in this case with a minor criminal history, less serious than the applicant here.  McMurdo P noted that the sentencing judge described his offending in the following way:^[10]

“The offence of trafficking was especially serious. It was compounded by the offence of producing cannabis and by the offence of possessing significant quantities of cocaine, cannabis, MDMA and MDEA. The trafficking occurred over a seven month period and involved more than a dozen transactions with covert operatives. Feakes earned at least $56,000 by way of unexplained income and the turnover of his business was in excess of $100,000. The 11 transactions relied on in the schedule of facts were but a window into a larger operation in which Feakes was able to source substantial amounts of relatively high quality cocaine and ecstasy at short notice. He was a substantial wholesale supplier. His trafficking involved several thousand tablets containing 330 grams of MDMA and almost 110 grams of MDEA and cocaine with a total weight exceeding 32 grams. To some extent, Feakes was trafficking to feed his addiction and he was a long term user of cannabis.”

33. [33]
    The applicant, Mr Feakes, had entered a timely plea of guilty, was a drug addict and had made efforts at rehabilitation.  Delay was a mitigating factor.  A psychologist had provided a report which evidenced a dysfunctional and traumatic childhood during which he was exposed to drugs but also outlined how Mr Feakes had engaged in significant rehabilitation by attending drug rehabilitation programs.  He was like the applicant in this case also in full time employment.  The present applicant had a normal childhood and there was no suggestion that he experienced any traumatic trigger in relation to his offending.
34. [34]
    President McMurdo (with whom Fraser JA and Fryberg J agreed) reviewed a number of authorities where sentences of 8-11 years had been handed down and concluded:^[11]

“My analysis of the comparable cases relied on by Feakes and the respondent in this application demonstrate that, absent extraordinary circumstances, in cases of trafficking in sch 1 drugs on a scale like the present offence, the sentence imposed on mature offenders who have pleaded guilty is ordinarily in the range of 10 to 12 years imprisonment. Younger offenders without a significant criminal history and with excellent rehabilitative prospects may be sentenced to a slightly lesser term of imprisonment in the range of eight to nine years. …” (footnotes omitted).

35. [35]
    Notwithstanding what McMurdo P described as “impressive mitigating factors”, she considered that an appropriate sentence would have been between 9-11 imprisonment years in Mr Feakes’ case and that 10 years was not outside of that.^[12]  The application was therefore refused.
36. [36]
    The case does not assist the applicant in demonstrating that the ten-year sentence was beyond the permissible range in the exercise of the sentencing discretion.  In terms of the scale of offending, while Mr Feakes had trafficked over a longer period, the number of supplies were similar to the applicant in the present case.  Like Mr Feakes, the applicant’s business was well established and the full scale of it unknown.  The number of transactions by Mr Feakes and the present applicant were not dissimilar.  While Mr Feakes had supplied four drugs, cocaine, MDMA, MDEA and cannabis, only cocaine was a schedule 1 drug at the time and the amount of cocaine supplied was significantly less than that supplied by the present applicant.  MDMA was a schedule 1 drug at the time the present applicant was supplying it.  The present applicant was also found in possession of a large amount of pure cocaine when arrested.
37. [37]
    While the in time spent trafficking between Mr Feakes and the present applicant is a point of difference between the offending it is not of such significance so as to suggest a lower level of criminality, when regard is had to all of the circumstances.  The sentence in Feakes supports the ten-year starting point adopted by her Honour.
38. [38]
    R v Castner involved more serious offending than the present case, with the offender engaging in wholesale trafficking over six months where the offender employed four people to assist her and endorsed them making threats of violence.^[13]  Over the trafficking period, she sold 2.996 kilograms of methylamphetamine for an estimated profit of about $30,000 per week.  She also involved her children in the business.  The offender was a mature age offender.  The offender had a criminal history involving drug offending and was described as a drug addict.  However, she was well able to run a significant trafficking business.  She had taken significant steps towards rehabilitation and entered a plea of guilty.  The sentencing judge accepted she had some remorse.  She had provided a psychologist’s report which opined she was not likely to offend in the future.  The sentencing judge considered that a sentence of 12 to 13 years was appropriate but, in light of the mitigating factors, imposed a sentence of ten years.
39. [39]
    The Court of Appeal refused leave to appeal, finding that the sentence was not manifestly excessive and that ten years was within the sentencing discretion of the primary judge.  In Castner, I made reference to a number of authorities, including R v McGinniss, which supported sentences between 10-12 years being imposed in a number of cases where substantial trafficking in schedule 1 drugs was involved.^[14]
40. [40]
    The offending in Castner was more serious than the applicant in the present case, reflected by the fact that the starting point was regarded as higher, albeit reduced to ten when the mitigating circumstances were taken into account.  While it suggests a lower starting point was open in the present applicant’s case it does not demonstrate the starting point of 10 years was unreasonable or unjust.
41. [41]
    In R v McGinniss, a 26-year-old offender with a limited criminal history was sentenced to ten years for trafficking over seven months in what was described as small amounts of methylamphetamine to regular customers although he supplied one customer with at least 115 grams of methylamphetamine.^[15]  He also acted as a courier for a drug syndicate.  He transported some three kilograms on six occasions and, when arrested, was in possession of a total of 404.325 grams of methylamphetamine.  He did not have a relevant criminal history.  He was found to have made commendable efforts at rehabilitation, had a young child and had entered an early plea of guilty.  The Court rejected a contention that the sentence was manifestly excessive.  In his analysis, Fraser JA stated:^[16]

“The Court has recently analysed the relevant sentencing decisions: see R v Galeano at [26]-[31], R v Ryan [2014] QCA 78 at [43]-[45], and R v Johnson at [43]-[46]. As I observed in R v Safi [2015] QCA 13 those analyses indicate that, whilst each sentence requires an exercise of discretion with reference to the facts and circumstances of the case, for substantial trafficking in a Schedule 1 dangerous drug of the order of the applicant’s trafficking, offenders who have pleaded guilty and invoked a range of mitigating factors have commonly been sentenced to terms of imprisonment of between 10 and 12 years (with the automatic declaration that the offence was a serious violent one)…”

42. [42]
    Justice Fraser also observed that, as he had done in Safi, it was sufficient to have regard to McMurdo P’s observations in Feakes, which I extracted, in part, at paragraph [34] above.^[17]
43. [43]
    The present applicant’s counsel contended that the offending in this case was not comparable to that in McGinniss given the length of trafficking in that case was over seven months.  The offending in McGinniss is more serious than the offending here insofar as the offender acted as a courier for a significant trafficking business.  However, the offender’s own trafficking was on a lesser scale than the present applicant and his mitigating features were more significant than those of the present applicant.  Given the mitigating circumstances involved, the ten-year sentence imposed in McGinniss does not suggest that the ten-year starting point in the present case was manifestly excessive.
44. [44]
    While the length of trafficking is a factor which is to be considered in determining the appropriate sentence for trafficking offences,  it must also be considered in light of the quantity and nature of the drugs trafficked and the nature of the business.  That is particularly demonstrated by R v Corbett.^[18]  The applicant in that case, Mr Corbett, was sentenced to 9 years with no early date for parole eligibility.  His trafficking was slightly longer than that of the applicant in this case, namely 6.5 weeks.  The quantities in which Mr Corbett trafficked were less than the present applicant, being ounce amounts for which he received sums as large as $20,000.  Mr Corbett was found with 209.914 grams of pure methylamphetamine when arrested, which is larger, but not significantly so, than the cocaine the applicant was found in possession of in the present case.
45. [45]
    While Mr Corbett had a more significant criminal history than the present applicant, and had previously served time in custody for commercial possession in 2007 and 2011, he had various mitigating circumstances set out in a psychologist’s report not present in this case.  That report indicated that there were circumstances of trauma experienced by Mr Corbett relevant to his offending.  Mr Corbett had a very young daughter and a number of favourable references.  He was found to have had a significant addiction, He had also provided some cooperation in the administration of justice by pleading guilty and had attempted to assist police, although it was considered of little worth.  The sentencing judge found that, if not for those mitigating features, she would expect him to serve a term of imprisonment of 11 years, but her Honour instead imposed a sentence of 9 years without any order as to parole eligibility.^[19]  In applying for leave to appeal, it was contended that the sentence was manifestly excessive and that, in a case of a drug dependent individual, the sentencing range for trafficking over a six week period with the aggravating circumstances of commercial possession was 8 to 9 and half years before allowance of a guilty plea and another mitigating factors.  That was rejected by the Court of Appeal.
46. [46]
    In Corbett, Holmes CJ reviewed the cases relied upon to demonstrate that the sentence was outside the proper sentencing range and stated:^[20]

“The cases cited do not, for the reasons discussed, demonstrate that the sentence imposed on the applicant was outside a proper sentencing range. The starting point of 11 years was not out of the question for offending of this seriousness, notwithstanding that a relatively short trafficking period was involved. Although short, it was an intensive period of trafficking for both profit and personal use, with the applicant amassing substantial debts owed to him; as the tick list demonstrated. The proportions of the offending were made considerably more grave by the fact that the applicant was found in possession of such a large amount of pure methylamphetamine.” (emphasis added)

47. [47]
    In the present case, the amounts in which the applicant was trafficking were significantly larger amounts than those with which the applicant was dealing in Corbett.  In addition, the present applicant was trafficking in two different schedule one drugs.  While the amount of cocaine found in his possession upon his arrest was less than the applicant in Corbett, it was still a large amount packaged for resale and the amount of his supplies were generally greater.  While Mr Corbett’s sentence was reduced to nine years in light of the mitigating factors,  the case does not demonstrate that the ten-year starting point in the present case was not within the sentencing range.  Notably, Holmes CJ did not consider that the shorter period of trafficking was a feature which distinguished Mr Corbett’s case from the cases which imposed 10-12 years for commercial wholesale trafficking.  In the case of R v Nunn,  a sentence of ten years was imposed for what can be regarded as more serious offending in relation to the trafficking of methylamphetamine over five months in wholesale quantities, not significantly different from the amount trafficked by the present applicant, although over a wider area with a co-offender.^[21]  The sentence had to be considered afresh due to an error by the sentencing judge.^[22]  The Court of Appeal maintained the sentence of ten years.  Fraser JA stated that:^[23]

“A sentence of imprisonment of at least 10 years is suggested by sentences of 10 years imprisonment referred to in the comparable cases of Feakes, Johnson, [McGinniss,] Abbott, Strutt, and Castner and with the sentence of nine years imprisonment imposed in Corbett, which (like Feakes, Abbott, and Strutt) was a less serious case because a smaller quantity of drug was trafficked, there were no threats of violence by the offender, and the offender did not engage employees to assist in the trafficking.

…

In the result, many comparable sentencing decisions are consistent with my view that in the particular circumstances of the applicant’s case the just sentence is at least 10 years imprisonment, with the consequential serious violence declaration, and no sentence drawn to the Court’s attention indicates that such a sentence is too severe.” (emphasis added and citations omitted).

48. [48]
    The cases, while they provide guidance to a sentencing judge, do not set the outer bounds within which a sentence must be imposed.^[24]  While there are features in the authorities to which the Court has been referred that are present in the applicant’s case, there are features in his case which are not present in those cases.
49. [49]
    Notwithstanding the spirited arguments of the applicant’s counsel, while the period of trafficking was short, the applicant’s trafficking business was a well-established, sophisticated commercial wholesale trafficking business with two employees.  The applicant’s trafficking was at the same level of intensity throughout the period with a significant amount of transactions involving wholesale quantities of two drugs for large amounts of money.  The short period of trafficking did not change the character of the trafficking business as substantial trafficking so as to reduce the magnitude to a level where the ten-year starting point demonstrates that there has been a misapplication of principle.

Disposition

50. [50]
    The application for leave to appeal should be refused.
51. [51]
    COOPER J:  I agree with Brown JA.