R v SEP[2025] QCA 117

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  The applicant was indicted on eight drug charges and pleaded guilty to seven of them.  She went to trial and was convicted by a jury on the most serious charge: that she and her brother unlawfully supplied cocaine in November 2022.
2. [2]
   She was sentenced to three years’ imprisonment on the charge of supplying cocaine.  She received lesser concurrent sentences of imprisonment of one month each for five supply cannabis charges, nine months for a possession of cannabis charge and was convicted but not further punished on a charge of possessing a phone used for supply.
3. [3]
   Notwithstanding that the applicant went to trial, her parole release date was set after she has served only 11 months, which is less than one third of the three year head sentence.  Such an outcome bespeaks allowance for mitigating circumstances.  Despite this the applicant seeks leave to appeal on the ground the ‘sentence imposed was manifestly excessive, as … his Honour failed to give adequate weight to matters in mitigation’.
4. [4]
   The applicant’s outline of submissions raises the possibility inadequate weight was given to some mitigating considerations below, but discrete error is not alleged in respect of any of them.  Rather the application for leave to appeal is premised on an inference, per House v The King,^[1] that the sentence was so unreasonable or plainly unjust that there must have been an error in the exercise of the sentencing discretion.
5. [5]
   Leave should be refused because, in summary:

1. the offending, of which the applicant was convicted at trial, was objectively serious; and while
2. there were significant mitigating considerations;
3. the sentence structure allowed for the mitigating considerations; and
4. the sentence was not manifestly excessive.

1. The offending, of which the applicant was convicted at trial, was objectively serious

6. [6]
   The applicant’s offending came to light when Australian Border Force intercepted two mail packages arriving at Sydney on the same flight on 24 November 2022.  One package was addressed to the applicant’s brother, Patrick Sumido, at an address in Yolanda Drive, Annandale.  The other was directed to George Bolch at an address in Hasson Street, Kirwan.  Each package was marked as having been sent by the same person from the same address in the United Kingdom.  Each was labelled as containing ‘trainers, shoes’.  When opened, each package was found to contain a pair of shoes and a substantial quantity of cocaine.
7. [7]
   It was the cocaine in the package addressed to the applicant’s brother which the applicant and her brother were charged with supplying.  It had a total gross weight of 286.625 grams and a pure weight of 211.915 grams.  This was a substantial, inherently commercial quantity.  Even if its gross weight was not increased by use of a cutting agent, it was worth approximately $100,000 if sold in gram amounts.
8. [8]
   Search warrants were executed at the Yolanda Drive and Hasson Street residences on 27 November 2022.  Patrick Sumido was found at the Yolanda Drive address.  The applicant’s boyfriend, Michael Seabrook, and Mr Bolch were found at the Hassan Street address.  Seabrook had been actively involved in tracking the packages directed to both addresses.
9. [9]
   A couple of months later police executed a search warrant at the applicant’s home address in Aitkenvale where she and Mr Seabrook were located.  A cryovac bag containing 420 grams of cannabis and the applicant’s fingerprint was found at that residence.  The applicant’s mobile phone was seized and found to contain evidence of five acts of supply of cannabis to Mr Seabrook in the context of them arranging to share and consume the drug in personal use quantities.  These various finds gave rise to the charges to which the applicant pleaded guilty.  The evidence found in the applicant’s seized phone, along with other communication records, founded the charge of supplying cocaine to which she pleaded not guilty.
10. [10]
    Before turning to that evidence, it warrants emphasis that the applicant pleaded not guilty to the latter charge.  True it is, as the learned sentencing judge acknowledged on sentence, the applicant did shorten the trial by making substantial admissions.  However, it remains that she did not have the benefit she would otherwise have enjoyed in mitigation had she pleaded guilty to the charge of supplying cocaine, which was by far the most serious charge.
11. [11]
    The particulars of that charge involved the single act of nominating Patrick Sumido’s address, as the delivery address for the package, to the sender of the package or to the sender’s associate.  This, the particulars alleged, was done in preparation to, in furtherance of or for the purpose of transporting the cocaine and with the knowledge or expectation that all or some of the cocaine would be further distributed to another person.  The content of telephone messages compellingly supported the inference that the applicant was the person who had provided her brother’s address as the delivery address to the overseas supplier of the drug.
12. [12]
    While the applicant’s conviction on the supply cocaine charge was thus only founded on the single act of nominating her brother’s address as the delivery address for the package to the overseas supplier, there was other evidence informing her level of criminality.  Various messages sent before and after the offence demonstrated she had assumed the role of an active and knowing communication conduit to the supplier.
13. [13]
    It is to be appreciated that the learned sentencing judge, having heard the trial, knew the full, unattractive detail of those messages.  This put his Honour in a position of being able to make a more nuanced and better informed assessment of the applicant’s level of culpability than sometimes occurs when evidence is merely summarised at a sentence hearing.
14. [14]
    The messages also showed the applicant had an expectation of being paid for facilitating the sending of the cocaine to her brother’s address.  She later told Mr Walkley, a psychologist engaged to consult her and provide a report for sentence, that she knew what she was doing was ‘dodgy’.  She said, ‘I had no money.  I had no job, and I was offered $1,000 so I figured, why not’.  She also told Mr Walkley that she had been paid to store the large amount of cannabis at her house.
15. [15]
    The applicant actively aided in the supply of cocaine - a drug listed in schedule 1 Drugs Misuse Regulation 1987 (Qld) – in circumstances where she must have known she was aiding the movement of a wholesale quantity, destined for commercial distribution in the community, and where she expected to be paid for her role.  A head sentence of three years’ imprisonment is not disproportionate to that level of criminality.
16. [16]
    Decisions of this Court demonstrate that offenders who choose to aid the commercially motivated movement of wholesale quantities of schedule 1 drugs run the gauntlet of a wide range of potentially very significant terms of imprisonment.  For example, in R v Cooney,^[2] this court refused Cooney’s application for leave to appeal a sentence of eight and a half years’ imprisonment with parole eligibility after three and a half years for his possession, as courier, of cocaine with a pure weight of 641.007 grams.  The pure weight here is obviously lower, at 211.915 grams.  But it is not as low as in R v Richards,^[3] where this court re-sentenced Richards to four years’ imprisonment suspended after 20 months for his possession, as transporter, of methylamphetamine with a pure weight of 176.6 grams.
17. [17]
    That a three year head sentence is comfortably within range here is also demonstrated by the oft quoted range of two and a half to four years’ imprisonment for cases involving the commercially motivated possession of a substantial quantity of another schedule 1 drug, methylamphetamine – see for example R v Hesketh; Ex parte Attorney-General (Qld),^[4] and, more recently, R v Hawke.^[5]
18. [18]
    The head sentence imposed here appears to fall within an objectively appropriate range.  That it falls towards, albeit not at, the lower end of that range is consistent with the applicant’s level of culpability as an aider rather than principal.
19. [19]
    None of this is to suggest that the objective level of criminality is the sole determinant of an appropriate sentence.  The subjective mitigating considerations discussed below are obviously relevant.  But in a case where it is argued the sentence is so high as to manifest error, that argument is not aided by the head sentence apparently falling towards the lower end of an objectively appropriate range.

2. There were significant mitigating considerations

20. [20]
    The applicant had no previous convictions.  She was also still a very young adult, being aged only 18 and 19 during the offending period.  Her youth, particularly in the absence of previous convictions, was an undoubtedly significant mitigating consideration.^[6]
21. [21]
    The applicant had a dysfunctional, traumatic upbringing.  When she was six years old her father brought her to Australia, away from her Philippines based mother, who was a prostitute and drug addict.  Her father repeatedly abused her and she endured unstable patterns of care arrangements until her mid-teens, after which she lived at various friends’ homes.  A father of her boyfriend abused her and was convicted and sentenced to imprisonment for doing so.
22. [22]
    Against that background of victimisation and abandonment the applicant struggled through her teenage years with depressive symptoms and episodes of self-harm.  She left school in year 11 and worked in a variety of unskilled positions.  She had some sporadic engagement with mental health professionals and took some antidepressant and antipsychotic medication.
23. [23]
    The applicant’s difficult life history and her attempts to grapple with its consequences in her adulthood was evidenced in references and a letter to the court from the defendant.  It was also discussed in the report of Mr Walkley.
24. [24]
    He considered the applicant likely has complex post-traumatic stress disorder, major depressive disorder, borderline personality disorder and cannabis dependency.  Mr Walkley opined the applicant had become involved in offending because she was ‘involved with a group of people for whom drugs played a central role in their lives’ and was ‘highly vulnerable to manipulation’ and ‘easily swayed’ because of her past abandonment and consequent ‘need to belong and to feel part of a group’.
25. [25]
    The history of the domestic violence which had impacted the applicant’s upbringing was a relevant consideration generally by reason of ss 9(2)(gb)(i) and (iii) Penalties and Sentences Act 1992 (Qld).  More specifically, the adverse psychological effects of a childhood blighted by such abuse upon the applicant fell to be treated as a mitigating factor per s 9(10B)(a).  Whether the offending was wholly or partly attributable to those effects was generally relevant per s 9(2)(gb)(ii) and the extent to which it was attributable was a mitigating factor per s 9(10B)(b).
26. [26]
    This was not a case where the effects of domestic violence had a direct causal role, as for example, where a domestically violent offender intimidates his battered partner into aiding his offending.  At the highest the applicant’s offending was only partly attributable to the effects of domestic violence, and only to the same indirect extent that the other travails of her sadly dysfunctional upbringing left her more vulnerable to making the poor life decision to become involved in such offending.  The learned sentencing judge expressly took that vulnerability into account.  However, it was but one mitigating factor to be weighed in conjunction with all relevant mitigating and aggravating factors.^[7]
27. [27]
    Parity is another factor said to have warranted a greater degree of mitigation.  The applicant’s brother stood trial with her and was also convicted of the supply cocaine charge.  He was only a year older than his sister and also had no previous convictions.  The primary judge sentenced him to two and half years imprisonment with parole release after serving nine months.  That he received a somewhat lesser sentence than the applicant is consistent with his role being less active than his sister’s and the fact that, unlike her, he was not sentenced for additional drug offending.  Most of the applicant’s other offending was so minor as to be inconsequential in this context, but not so was the applicant’s possession of a cryovac bag of 420 grams of cannabis.  It was evidence of her having a broader involvement in drug offending than her brother.
28. [28]
    The applicant’s boyfriend Seabrook, who was older than her and had some criminal history, was sentenced, for collectively more serious offending than the applicant, to a head sentence of three and half years’ imprisonment with parole eligibility after 11 months.  His sentence involves a longer head sentence and the same period of parole eligibility as the applicant.  But he pleaded guilty.  The applicant chose to go to trial.  In the circumstances his sentence does not involve such a degree of disparity from the applicant’s as to engender a justifiable sense of grievance.^[8]
29. [29]
    While the applicant did not have the benefit in mitigation of having pleaded guilty to the most serious charge it was a mitigating consideration that she did make substantial admissions at trial.
30. [30]
    A final mitigating factor to note is the positive progress made by the applicant while awaiting trial.  She had regained employment and impressed her employers with her care and commitment.  References spoke of her positive personal qualities, her new relationship and her disassociation from the illicit drug milieu.
31. [31]
    Some references and the applicant’s letter to the court also spoke of her remorse.  That claim was not deserving of material weight in circumstances where she chose to deny her guilt and go to trial in the face of a strong circumstantial case against her.

3. The sentence structure allowed for the mitigating considerations

32. [32]
    An obvious difficulty for the applicant in the present application is that despite going to trial her parole release date was set at the 11-month mark.  That is less than one third of the three year head sentence.  It represented a substantial discount of the sentence because parole release generally tends not to be set earlier than the halfway mark for offenders who plead not guilty.
33. [33]
    Whether sentencing after a plea of guilty or not guilty, there exists no requirement that in arriving at a just sentence a sentencing judge must reflect allowance for mitigating considerations only by moderation of the head sentence, as distinct from only by imposition of an earlier than usual parole release, or eligibility date.^[9]  It is within the discretion of a sentencing judge to do one, or the other, or a bit of both, in order to arrive at a just sentence
34. [34]
    It was well open to the learned sentencing judge here to preserve the generally deterrent effect of the sentence by not substantially moderating the head sentence to allow for the significant mitigating considerations and to instead make substantial allowance for them by imposing an earlier than usual parole release date.  Plainly that is what occurred.
35. [35]
    It was also open to the learned sentencing judge to have reflected the mitigating considerations by substantially reducing the head sentence.  However, had that occurred, the proportion of the non-parole period to the head sentence might not have been as generous as it was.

4. The sentence was not manifestly excessive

36. [36]
    The applicant’s argument, necessarily, is that despite the allowance for mitigating circumstances, the resulting sentence is nonetheless so excessive that there must have been some error in the exercise of the sentencing discretion.
37. [37]
    That argument must be rejected.  These reasons have demonstrated that the head sentence of three years imprisonment fell towards, albeit not at, the lower end of the appropriate range of sentence for involvement in this level of criminality.  Given the head sentence was also accompanied by the setting of a parole release date after only 11 months, the resulting overall sentence made fair allowance for mitigating considerations which, while significant, did not include a plea of guilty.
38. [38]
    A more generous allowance could properly have been made, particularly because of the applicant’s youth, but that is not the test of error here.  That test, that the sentence was so harsh as to bespeak error, has not been met. The sentence was within range of a sound exercise of the sentencing direction following trial.
39. [39]
    The Court’s order is:

1. Application for leave to appeal against sentence refused.