R v WCI[2025] QCA 131

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  In early June 2025 the applicant pleaded guilty to possession of the dangerous drug methylamphetamine where the quantity exceeded 200 grams (count 1) and unlawful possession of the dangerous drug cocaine where the quantity exceeded 2 grams (count 2).  Both offences were committed on 20 October 2022.  The applicant was sentenced to imprisonment for six years on count 1 and convicted and not further punished on count 2.  Presentence custody of 19 days between 20 October and 7 November 2022 was declared to be time already served under the sentence.  The date for eligibility for parole was fixed as 12 May 2026.  The applicant applies for leave to appeal on the ground the sentence imposed was manifestly excessive and, in particular, by the applicant being required to serve a period of actual custody.

Applicant’s antecedents

2. [2]
   The applicant was 24 years old at the date of offending with no prior criminal history.  She commenced a relationship at the age of 18 years with X.  After moving in with him, she discovered he had problems with methylamphetamine and cannabis and experienced domestic violence and controlling behaviour from him.  When she was aged 22 years, she left X and moved to another town, but he followed her and they reconciled.  His drug use started again which resulted in domestic violence and paranoid and controlling behaviour towards the applicant.  After he caused a significant injury to her arm, a protection order was made against X naming the applicant as the aggrieved.  The applicant was diagnosed in 2020 with a post-traumatic stress disorder and started taking antidepressant medication.  There was a further incident in 2021 when X tracked the applicant down and threatened to kill her and the applicant called the police who took him away.  By this time, the applicant was isolated from her family as she felt ashamed to seek their help.  After that incident, she moved house several times and met the people who offered her employment but through whom she ended up being asked to act as a courier of drugs.
3. [3]
   For the purpose of the sentencing, the applicant was examined by psychiatrist Dr Bala on 23 May 2025.  Dr Bala’s opinion included the following.  The applicant had developed anxiety symptoms from year 7 at school.  She had features of an adjustment disorder with anxiety or a generalised anxiety disorder in her mid-teens.  Her anxiety escalated in the context of X’s violence and it was likely she had a severe adjustment disorder or PTSD which was diagnosed in 2020 after the injury to her arm during an incident of domestic violence.  When she met her employers socially, they were supportive and made her feel safe and she engaged in the offending conduct partly because of the dependent relationship she had formed with them and her inability to set boundaries for herself.  She was off her antidepressant medication when she offended.  Dr Bala considered that:

“The history of trauma and anxiety, dependent relationships, difficulty in saying no or setting boundaries and fearing displeasure and abandonment were contributing factors in the offending.”

The applicant was in a vulnerable state after the relationship with X and the PTSD.  Dr Bala was also of the opinion that the applicant was “at a low risk of reoffending” in a similar way and being a new mother is “likely to be protective in terms of further offending”.

4. [4]
   [Redacted].
5. [5]
   After her release on bail, the applicant reconnected with her family and returned to live in the town where family members reside and where she has support.  The applicant attended for counselling at Lives Lived Well on five occasions between 27 January and 25 May 2023 to deal with substance misuse, relapse planning and emotional regulation.  She met her current partner in mid-2024.
6. [6]
   The applicant had resumed taking antidepressant medication, was pursuing a prosocial lifestyle and had stable employment by the time of the sentencing.  The applicant was also pregnant to her current partner with an anticipated due date of 5 August 2025.  The pregnancy had come as a shock to the applicant.  She had suffered a miscarriage in 2019, was diagnosed with ovarian cysts, and was advised it was unlikely she would conceive in the future.

Circumstances of the offending

7. [7]
   On 20 October 2022, the applicant was intercepted by police when she was driving a vehicle that she told police belonged to a friend of a friend.  Police used a drill to access the rear tailgate where four bags of methylamphetamine and one of cocaine were located.  There was 1.513 kgs of methylamphetamine in 1.993 kgs of substance at a purity of 76 per cent and 59.1 gms of cocaine in 248.5 gms of substance at a purity of 23.8 per cent.
8. [8]
   The sentence proceeded on the basis that the applicant possessed the methylamphetamine and cocaine as a courier.  The applicant’s submissions before the sentencing judge disclosed that the applicant was paid (or to be paid) for her role as courier.  It was accepted by the applicant’s counsel before the sentencing judge that the applicant must have known that the quantity of drugs she was transporting a considerable distance from Brisbane to north Queensland was significant and intended for commercial distribution, even though she did not know the exact quantities.

Sentencing remarks

9. [9]
   Apart from referring to the applicant’s antecedents and the circumstances of the offending, the sentencing remarks included the following.  The sentencing judge inferred that the applicant knew she was couriering drugs but she did not know the quantity of the drugs.  When she was arrested, she did not know that an outlaw motorcycle gang was involved.  Dr Bala’s opinion that the applicant was at a low risk of reoffending was accepted.  From the letter provided by Sisters Inside Inc on the experiences of mothers being pregnant and giving birth in custody, it was accepted that having a child in prison would be difficult for the applicant and “far more risky and far more stressful for both the new mother and for the child” and some weight was placed upon the information provided by Sisters Inside Inc.  The probable effect of the sentence upon the child of the applicant’s pregnancy was taken into account pursuant to s 9(2)(fb)(iii) of the Penalties and Sentences Act 1992.  It was a significant but not an overwhelming feature.  It was also accepted that, in accordance with R v Burling [2011] QCA 51 at [14], “low-level couriers generally receive a lesser sentence than those at a higher level in the drug hierarchy”.  The sentencing judge accepted the opinions of Dr Bala in respect of the psychiatric diagnoses applicable to the applicant.
10. [10]
    The seriousness of the offending was reflected by the “massive amount” of methylamphetamine and $80,000 worth of cocaine.  Deterrence was important but not an overwhelming feature.  There had been a significant delay between the offence and sentence where the applicant had conducted herself well and rehabilitated, so that general deterrence did not loom as large but it still remained relevant.  Some weight must be placed upon the issue of general deterrence where the amount of the drug was so large.  Those factors had to be balanced with the early plea of guilty and that the applicant was remorseful for her conduct.  It was accepted that the offending was out of character.  The sentencing judge also took into account the lack of prior convictions and “all is well for [her] significant rehabilitation”, her role as a courier was at the lower end of criminality, the pregnancy and the impeding birth of the baby and that the applicant had cooperated with authorities.  The sentencing judge also took account of the applicant’s psychiatric conditions including severe anxiety as a child and the severe anxiety disorder or PTSD triggered by X and the fact that the applicant was the subject of domestic violence at his hands.  Dr Bala’s opinion that X’s extremely violent behaviour towards the applicant pushed her towards persons whom she trusted and therefore she did what they asked her to do even though it was criminal offending.  The domestic violence was therefore relevant in pushing her “towards evil people”.  During the two and one-half years on bail, the applicant had rehabilitated well and was established in a much better relationship.  She had good family support and good employment prospects.  The sentencing judge rejected the submission that the appropriate sentence was one that could be wholly suspended but it was proper to structure the sentence for the applicant’s release as early as possible.
11. [11]
    [Redacted].

Was the sentence manifestly excessive?

12. [12]
    The applicant does not point to any specific error on the part of the sentencing judge but submits that a sentence that involved actual custody was manifestly excessive, given the combination of favourable mitigating features and the applicant’s objective criminality as a courier unaware of the quantity of drugs she was transporting.  The problem with that submission is that the focus on sentence structure to avoid an actual custodial component means that the applicant is also challenging the head sentence of six years.  It would be possible to suspend the sentence after the time the applicant has already spent in custody only if the head sentence were reduced to five years’ imprisonment.
13. [13]
    The parties’ written submissions on this application referred to the same Court of Appeal authorities put before the sentencing judge which were not entirely apposite but did suggest that, subject to taking account of the factors personal to the offender, an appropriate sentence for this type of serious offending that included possession of more than 200 gms of a schedule 1 drug on a guilty plea could be in the vicinity of eight or nine years’ imprisonment.
14. [14]
    In R v Cooney [2004] QCA 244, the 30 year old offender pleaded guilty to one count of possession of cocaine with the circumstance of aggravation that it exceeded 200 gms.  He was intercepted at an airport with $50,000 and was allowed to leave.  He was then located at a hotel where he was no longer in possession of the money but was in possession of 641 gms of pure cocaine.  He had a prior conviction for supplying cannabis for which he had been sentenced to a minimum term of 12 months’ imprisonment and a serious addiction to cocaine in the two and one-half years before he committed the offence.  He was unsuccessful in applying for leave to appeal against his sentence of imprisonment of eight and one-half years with a recommendation for eligibility for post-prison community based release after serving three and one-half years.
15. [15]
    Although the offender in R v Oliver [2007] QCA 361 was intending to be more than a courier, he pleaded guilty to possession of cocaine in a quantity exceeding 200 gms.  He had prior convictions for minor drug offences.  He had arranged and agreed to receive 2 kgs of a quantity of cocaine that had been found on the Queensland coast near Cooktown.  He was sentenced on the basis that he was constructively in possession of it for a commercial purpose.  There was a substantial delay of almost four and one-half years between his offending and his plea of guilty.  His sentence was reduced on appeal to imprisonment for nine years with a parole eligibility date after serving three years.  One of the authorities referred to in Oliver is R v Van Huynh [2003] QCA 371 and the sentence imposed on one Mr Trinh who was Mr Van Huynh’s co-offender.  Mr Trinh had pleaded guilty to possession of heroin in a quantity which exceeded 2 gms and was sentenced to eight years’ imprisonment with a recommendation that he be considered for parole after serving three years of that sentence.  Mr Trinh was acting as a courier to transport 347 gms of powder containing 131 gms of pure heroin from Sydney to Brisbane.
16. [16]
    The comprehensive submissions made by Mr Hunter of King’s counsel before the sentencing judge and on this application identified in detail all the mitigating circumstances.  These can be summarised as the applicant’s age, her lack of criminal history, the early plea of guilty, that she had been the subject of domestic violence in the period leading up to the offending which had an indirect connection with the offending, her significant cooperation with the administration of justice, her pregnancy and the imminence of the date she was due to give birth when sentenced, the probable effect of the applicant’s imprisonment on her baby after the birth, and the delay between the offending and the sentence.  As the sentencing judge recognised, the applicant was remorseful for her conduct and the significant delay before sentence allowed her to show that she had rehabilitated which reduced the significance of both personal and general deterrence in the sentencing process.
17. [17]
    [Redacted].
18. [18]
    All these matters in the applicant’s favour had to be weighed against the serious offending involving possession by the applicant as courier of two schedule 1 drugs with a combined total weight of about 1.57 kgs of pure drug destined for commercial distribution by others.  Even though the quantity of the drugs is not determinative of the sentence, it remains a most relevant factor.  In balancing these factors, the ultimate sentence imposed by the sentencing judge which reflected the mitigating circumstances in both the head sentence and the period of actual custody before being eligible for parole (which was one-sixth of the head sentence) is not unreasonable or plainly unjust.  The ultimate sentence does not otherwise support an inference that there was a failure by the sentencing judge properly to exercise the sentencing discretion.
19. [19]
    At the hearing of the application, the applicant was given leave to file an application for leave to adduce evidence which was an affidavit of the applicant that deposed to the limited nature of the medical treatment she had received since being sentenced and confirmed that she had not been provided with the outcome of her application to have her baby remain in custody with her during her sentence.  The matters deposed to by the applicant largely reflect those canvassed before the sentencing judge on the difficulties in being pregnant, giving birth and successfully applying to keep the baby in prison in respect of which there was acceptance in the sentencing judge’s remarks of the evidence adduced by the applicant to that effect.  In the circumstances of this matter, leave to adduce this evidence should be refused.

Orders

20. [20]
    The orders which should be made are:

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

21. [21]
    [Redacted].