R v Beattie[2024] QCA 77

[2024] QCA 77

COURT OF APPEAL

MULLINS P

BOND JA

CALLAGHAN J

CA No 163 of 2023

SC No 291 of 2023

R

v

BEATTIE, Julie Elizabeth Applicant

BRISBANE

WEDNESDAY, 8 MAY 2024

JUDGMENT

1. [1]
   MULLINS P:  The applicant pleaded guilty on the day her trial was due to commence on 25 July 2022 to four counts of supplying the dangerous drug methylamphetamine (respectively on 23, 24, 25 and 26 November 2020) (counts 1-4), possessing a dangerous drug methylamphetamine in excess of two grams on 2 December 2020 (count 5) and possessing a thing (a mobile phone) used in connection with supplying a dangerous drug on 2 December 2020 (count 6).  The applicant failed to appear on the date she was due to be sentenced on 30 September 2022, when she was in hospital for a panic attack, a warrant was issued for her arrest and she was arrested on 6 March 2023 and then granted bail.
2. [2]
   The applicant was sentenced on 19 July 2023 to 18 months’ imprisonment for each of counts 1–4, imprisonment of three years and six months for count 5 and imprisonment for three months for count 6.  All sentences were concurrent.  A pre-sentence custody declaration was made in respect of one day spent in pre-sentence custody between 2 and 3 December 2020.  A parole eligibility date was fixed at 18 December 2024 after serving 17 months in custody.
3. [3]
   The only ground in the application for leave to appeal against sentence is that the sentence is manifestly excessive.  The applicant advanced additional grounds in her outline of submissions and the respondent did not oppose leave being given to the applicant to amend the grounds of appeal to include:

   1. miscarriage of justice due to failure of her legal representatives to tender at the sentencing hearing the five character references and a letter from Moonyah Recovery Centre dated 18 July 2023 which she provided to them;
   2. the sentencing judge erred in considering parity;
   3. the sentencing judge erred in not finding she was a drug dependent person;
   4. failure to take into account that the offence occurred during the COVID pandemic;
   5. matters relevant to immigration that were considered speculative at the time of the sentence had since crystallised.
4. [4]
   The applicant has filed an application for leave to adduce evidence, namely the character references and the Moonyah letter.  The application is supported by the applicant’s affidavit sworn on 11 April 2024.  The respondent opposes leave being given to adduce that evidence.

Circumstances of the offences

5. [5]
   There was an agreed statement of facts.  The police were investigating the trafficking of methylamphetamine by a syndicate headed by one Beech.  His telecommunications were intercepted.  He was in contact with an associate of the applicant (the associate).  In October and November 2020 the associate contacted Beech negotiating the purchase of methylamphetamine and on 23 November 2020 agreed on three ounces for $10,000 each.  The associate rented a vehicle from the Brisbane airport which was used to collect the packages from Beech in a round trip of about 600 kilometres.  On 2 December 2020 the associate and the applicant arrived at the Townsville airport on a flight from Brisbane and they were intercepted by police at the airport pickup area.  The applicant had a black handbag that contained $2,000, the mobile phone that was the subject of count 6 and three clip seal bags containing a total weight of substance of 68.88 grams containing 51.72 grams of pure methylamphetamine at an average of 75 per cent purity (which was the subject of count 5).  The sentencing proceeded on the basis that the applicant’s possession of the methylamphetamine was for a commercial purpose.
6. [6]
   A review of the applicant’s mobile phone revealed that she made three actual supplies each of 1.75 grams of methylamphetamine and one offer to supply 1.75 grams of methylamphetamine over four days (counts 1–4).
7. [7]
   The associate was sentenced on 13 June 2022 to three years’ imprisonment with immediate release on parole for possessing a dangerous drug in excess of two grams and possessing a phone used in connection with possessing a dangerous drug.  The associate had a relatively minor criminal history and was a similar age to the applicant.  The associate was sentenced on the basis that she was not a drug addict, she was largely involved in the offence as the agent for another person and her motivation was to help a friend and not personal profit.

The applicant’s antecedents

8. [8]
   The applicant is a UK citizen who was 48 years old at the time of the offending.  The applicant came to Australia with her family when she was two years old.  When she was eight years old, her father and youngest brother were killed in a traffic accident.  Her eldest brother overdosed on heroin in 2000 and died.  When the applicant was sentenced, her four children were aged up to 32 years.  Her eldest son was 16 years old when he was diagnosed with a significant medical condition that was difficult for the family to deal with.  The applicant was diagnosed with lupus in 1998.  When her second marriage broke down in 2001, she was left with a business that owed significant debts, her house was repossessed and her health deteriorated significantly.  Her next significant relationship was characterised by significant domestic violence which resulted in hospitalisation in 2011.  She then moved to Townsville.  At the date of sentence, the applicant had returned to Brisbane and was in receipt of a carer’s allowance in relation to a family friend.
9. [9]
   The applicant’s drug use began in 2001 with the breakdown of her marriage.  She used amphetamines daily to cope with stress.  She was able to remain abstinent for a period before commencing daily drug use after hospitalisation in 2011.
10. [10]
    The applicant has a relevant criminal history.  The first entry for drug offending was for possession of 0.4 grams of amphetamine on 23 October 2005 for which she was fined.  The applicant pleaded guilty in the District Court on 11 October 2007 to numerous dishonesty, unlawful use of motor vehicles and minor drug offending.  For the serious offences, she was sentenced to imprisonment for 15 months wholly suspended for an operational period of two years and for the summary offences and traffic matters that were dealt with at the same time, she was given probation for two years.  The applicant breached the probation order (not by reoffending) for which she was fined $250 on 11 December 2009.  There was a gap in her criminal history between 2013 and 2018.  She was dealt with in the Magistrates Court on 22 May 2020 for minor drug offending committed on 10 June 2019 for which she was ordered to do 25 hours of community service.  A report from Community Corrections showed that the applicant completed the community service order within two months and that she demonstrated ability to engage meaningfully with supervision and complete the order without contravention.

Sentencing remarks

11. [11]
    The sentencing judge proceeded on the basis that the maximum penalty for count 5 was 25 years’ imprisonment as it was accepted by the applicant’s counsel that the applicant could not satisfy the definition of drug dependent person.  Apart from reciting the facts of the offending and the applicant’s antecedents, the sentencing remarks included the following.
12. [12]
    The guilty pleas were late but still had a utilitarian value and would be taken into account in reducing the sentences that would otherwise have been imposed.  The offending was serious in objective terms having regard to the quantity of methylamphetamine of which the applicant was in possession and the fact that it was possession for a commercial purpose.  The applicant was involved in transporting the drug from Brisbane to Townsville to further that commercial purpose.  The supply offences were much less serious, having regard to the small quantities of methylamphetamine involved.  The purposes of sentencing of specific deterrence, general deterrence and denunciation were given significant weight in determining the appropriate sentence.
13. [13]
    Even though it was accepted by the prosecution that the applicant had lupus which caused the applicant to experience fatigue, joint and back pain, headaches, memory loss and confusion and occasional rashes and skin lesions, in the absence of further relevant evidence not a great deal of weight could be placed upon the submission made on behalf of the applicant that her time in custody would be more burdensome than someone who was not diagnosed with lupus.  Parity with the associate remained a relevant consideration but there were differences between the offending, as the applicant had the additional offences of supply dangerous drug and her personal circumstances were not as favourable as the associate.
14. [14]
    The sentence imposed on count 5 was to reflect the totality of the applicant’s criminal conduct across all offences.
15. [15]
    There was not a likelihood of the applicant’s deportation such that it would mitigate the sentence that would otherwise be imposed in the way discussed in authorities such as R v Norris; Ex parte Attorney-General (Qld) [2018] 3 Qd R 420.

Maximum penalty

16. [16]
    The purpose for which the applicant seeks to adduce the Moonyah letter is to show that she was drug dependent.  The letter does not assist the applicant as it concerned participation in the residential rehabilitation program between 15 February and 8 October 2010 which was 10 years before she committed the subject offences.
17. [17]
    Even if the Moonyah letter were added to the evidence that was before the sentencing judge, the evidence falls short of satisfying the two conditions which must be established before a court can conclude that a person is drug dependent pursuant to the definition in s 4 of the Drugs Misuse Act 1986 (Qld):

“drug dependent person means a person—

1. who, as a result of repeated administration to the person of dangerous drugs—

1. demonstrates impaired control; or

2. exhibits drug-seeking behaviour that suggests impaired control;

over the person’s continued use of dangerous drugs; and

2. who, when the administration to the person of dangerous drugs ceases, suffers or is likely to suffer mental or physical distress or disorder.”

18. [18]
    There was no error in the sentencing judge proceeding on the basis that the maximum penalty for count 5 was 25 years’ imprisonment.

Application for leave to adduce evidence

19. [19]
    For the reason that the Moonyah letter would not have assisted the applicant at the sentencing hearing, leave to adduce that letter should be refused.  The character reference from the applicant’s daughter which is dated 8 April 2024 makes unsworn factual assertions against the associate and deals with matters that are subsequent to the sentence and therefore should not be received.  The factual information in the four character references dated July 2023 was largely incorporated into the applicant’s counsel’s written submissions that were before the sentencing judge.  That was a matter for the applicant’s counsel.  It is not in the interests of justice for those letters to be received now in connection with the application for leave to appeal.

Parity, COVID and possible deportation

20. [20]
    The sentencing judge dealt with the issue of parity on the basis of the sentencing submissions in relation to the associate, the associate’s criminal history and circumstances and the sentence imposed on the associate.  The applicant’s sentencing submissions seek to adduce additional factual matters that undermine the basis on which parity was considered by the sentencing judge.  Those matters were not sworn to by the applicant and there has been no attempt by the applicant to show why those factual matters which were always known to the applicant should be adduced now on the sentence leave application.  The applicant does not seek to adduce any further evidence in relation to her possible deportation.  She did inform the Court, without objection, that she has now been advised of the mandatory cancellation of her visa. The sentencing judge’s conclusion that it was a matter for speculation as to whether she would be able to have the mandatory cancellation of her visa successfully reviewed is not controverted by that development.  The applicant had one day in pre-sentence custody during the COVID pandemic, so that her assertion that there was a failure to take into account that the offence occurred during the COVID pandemic is irrelevant.

Was the sentence manifestly excessive?

21. [21]
    The head sentence imposed by the sentencing judge for count 5 fell within the range that was the subject of submissions of both the prosecutor and the applicant’s counsel.  It was supported by many comparable authorities including R v Hawke [2021] QCA 179, R v Nicholson [2016] QCA 315 and R v Gerhardt (2019) 3 QR 48.
22. [22]
    The date for eligibility for parole was fixed after the applicant will have served approximately 40 per cent of the head sentence and reflects the sentencing judge’s conclusion that the late guilty plea did not justify fixing the parole eligibility date as early as one-third of the head sentence.  That is not sufficient reason to justify a conclusion that the overall sentence was manifestly excessive.

Orders

23. [23]
    The orders which should be made are:

1. Application for leave to adduce evidence refused.
2. Application for leave to appeal against sentence refused.

24. [24]
    BOND JA:  I agree with the orders proposed by the President and her reasons for so doing.
25. [25]
    CALLAGHAN J:  I agree.
26. [26]
    MULLINS P:  The orders of the Court are those which I have just outlined.  Thank you.