R v Newman[2024] QCA 224

SUPREME COURT OF QUEENSLAND

1. [1]
   FLANAGAN JA:  I agree with Boddice JA.
2. [2]
   BODDICE JA:  On 21 March 2024, the applicant pleaded guilty to one count of trafficking in dangerous drugs, eight counts of possessing a dangerous drug, one count of possessing a dangerous drug in excess of 2 grams, one count of possessing a thing for use in connection with possessing a dangerous drug and one summary charge of possessing utensils and pipes for use.
3. [3]
   The applicant was sentenced to imprisonment for 7 years on the trafficking count, with parole eligibility fixed at 21 March 2026.  The applicant was convicted and not further punished in respect of the remaining counts and the summary charge.
4. [4]
   The applicant seeks leave to appeal her sentence.  Should leave be granted, the sole ground is that the sentence is manifestly excessive.
5. [5]
   To succeed on that ground, it must be established that the difference is such that there must have been a misapplication of principle, or that the sentence is “unreasonable or plainly unjust”.^[1]  It is not enough for the applicant to establish the sentence was different, or even markedly different, from sentences imposed in other matters.
6. [6]
   In my view, the application for leave to appeal against sentence should be refused, as it has not been established that there has been any misapplication of principle, or that the sentence was unreasonable or plainly unjust.
7. [7]
   The applicant engaged in serious offending, for commercial reward.  Over approximately six months, the applicant sold in street level and wholesale amounts, MDMA, cocaine, LSD and cannabis.  She predominantly trafficked in cannabis.  She used SnapChat to advertise and sell those drugs.  Whilst the number of customers was not ascertainable, in one conversation with a law enforcement participant, the applicant referred to having 1,500 SnapChat friends; that about 70 per cent of them were drug dealers; and that she sold between 113 grams and 2 kilograms of MDMA each week.  A tick sheet listed eight customers for a particular day.
8. [8]
   The applicant advertised her products to SnapChat friends on 54 occasions and supplied to law enforcement participants on five occasions.  She advertised special sales, including “schoolies deals”.  She requested and required customers to take a picture of themselves and their cash, otherwise she would not agree to the drug transaction.  She also advertised in a way to generate sales, such as advertising that if a customer purchased cannabis they would get a “free MDMA cap”.  The applicant bought product in bulk, on-selling in smaller quantities.
9. [9]
   When the applicant was arrested on 24 February 2022, a search of her vehicle located various drugs and other items, including the tick sheet.  Police located 4.452 grams of a substance containing 0.749 grams of cocaine, together with 4.511 grams of MDMA in a larger substance, 110 LSD tabs containing 0.0034 grams of LSD and 79 grams of cannabis in 11 aluminium pouches.  A search of the applicant’s home located further drug related items, including scales, a quantity of unused clip sealed bags, and a grinder.  In a bedroom in the house, were quantities of cocaine, MDMA, LSD and cannabis.  All were possessed for a commercial purpose.
10. [10]
    The applicant was aged 28 to 29 at the time of the offences.  She was aged 30 at the time of sentence.  She had no prior criminal history.  She entered guilty pleas at an early stage, saving time, expense and the cost of a trial.  Those guilty pleas were accepted as demonstrating a willingness to facilitate the course of justice and an acceptance of responsibility for her criminal conduct.  It was also accepted that there was some evidence of remorse.
11. [11]
    By way of further mitigating factors, the applicant had had disruptions in her childhood due to her parent’s separation and movement between different schools, but had managed to complete Grade 12, a certificate in commercial cooking and part of a hairdressing course.  She subsequently successfully completed a chef apprenticeship and had had stable employment.  The applicant had also been a long-term user of drugs, commencing in her teenage years.  She had become involved in the regular use of drugs and was under heightened levels of distress leading up to the commission of the offences, due to self-imposed financial pressures.
12. [12]
    A psychologist’s report referred to the applicant using drugs as a maladaptive mechanism to manage periods of stress.  In the lead up to the offending, the drug use was likely to have impaired her executive functioning and decision-making.  The psychologist opined that the applicant met the criteria for diagnoses of a major depressive disorder, recurrent moderate with anxious distress, cannabis use disorder, moderate in sustained remission, a cocaine use disorder, mild in sustained remission and other hallucinogen use disorder, mild in sustained remission.  The psychologist also opined that if the applicant received a custodial sentence, it was likely her mental health would deteriorate with a heightened risk of suicidal ideation.
13. [13]
    The sentencing judge accepted that whilst those conditions did not amount to a mental condition, they potentially engaged some of the principles relevant to moral culpability, because of a causal connection between the substance use and other disorders and the applicant’s offending.  However, the degree to which it might moderate her moral culpability was slight, having regard to the extended period of the applicant’s offending, its sophistication and its seriousness.
14. [14]
    The sentencing judge accepted that the applicant had not been using drugs since her arrest and that the applicant had reasonable prospects of rehabilitation.

Consideration

15. [15]
    The applicant submits that a consideration of her mitigating factors, including abstinence from drug use, her struggle with substance abuse and the effect of her disorders, and the fact that the applicant had been in the community on bail for a significant period without any breach or relapse, supported a conclusion that a head sentence of 4 to 5 years’ imprisonment was a just and reasonable sentence, thereby allowing the applicant’s sentence to be suspended after serving 12 months in custody.
16. [16]
    Whilst the applicant did have a number of mitigating factors, the sentencing judge carefully considered those mitigating factors, whilst determining what was an appropriate sentence.  The sentencing judge rightly found that notwithstanding those mitigating factors, the seriousness of the applicant’s offending meant that denunciation and deterrence loomed large.  There was no misapplication of principle in that conclusion.
17. [17]
    Trafficking in dangerous drugs causes misery and harm within the community.  Such conduct must be denounced through the imposition of penalties that would deter others.  General deterrence and denunciation were to be given specific significant weight in determining the applicant’s sentence, as her offending was motivated by financial reward.
18. [18]
    The nature and circumstances of the applicant’s trafficking also supports a conclusion that the sentence of 7 years’ imprisonment, with parole eligibility after serving 2 years’ imprisonment, fell within a sound exercise of the sentencing discretion.
19. [19]
    The applicant’s trafficking business was engaged over approximately six months, with a frequency of sales in the context of well-orchestrated advertising of that business.  The trafficking was conducted as a commercial enterprise with the applicant being involved in all aspects of the business, including delivery of the goods.  There was a degree of sophistication in the business-like model.  Whilst the applicant was a user of drugs, her offending went well beyond supporting her own habit.  It was motivated by financial reward.
20. [20]
    The applicant submitted that the sentence imposed was excessive, having regard to a number of single judge decisions.  However, little assistance is gained from a consideration of such decisions.  Each involves an exercise of a sentencing discretion, in particular circumstances.
21. [21]
    Whether a sentence can properly be said to be unreasonable or plainly unjust, requires a consideration of comparable decisions of this Court.  Regard had to such decisions, supports a conclusion that the sentence imposed on the applicant could not be said to be different to sentences imposed in comparable cases.^[2]
22. [22]
    The applicant submitted that Smith supported her submission that the sentence was unreasonable, as that sentence involved trafficking for a period of in excess of 16 months, whereas her trafficking was for a significantly shorter period.
23. [23]
    Whilst Smith did involve trafficking for a more extended period, Smith’s trafficking only involved one dangerous drug.  Further, the sentence imposed for that trafficking count was effectively 7 years and 7 months’ imprisonment, as Smith had served just under 7 months in pre-sentence custody that could not be the subject of a declaration, pursuant to s 159A of the Penalties and Sentences Act 1992.^[3]  There were also a number of differing mitigating factors; Smith’s pleas of guilty were early, not timely; there had been a delay of nearly a year between cessation of the trafficking and Smith’s arrest; and Smith had evidence of significant progress towards rehabilitation, completing an apprenticeship as a plumber, whilst awaiting sentence.
24. [24]
    By contrast, whilst the applicant’s trafficking was for a shorter period, it was intense and involved multiple dangerous drugs, routinely advertised broadly through SnapChat, affording the applicant a wide customer base.

Conclusion

25. [25]
    The sentence imposed was not manifestly excessive.  It was neither unreasonable nor unjust.  There was no misapplication of sentencing principles.

Order

26. [26]
    I would order that the application for leave to appeal against sentence be refused.
27. [27]
    BRADLEY J:  I agree with the reasons of Boddice JA and concur with the order proposed by his Honour.