R v Millar[2025] QCA 77

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  For the reasons given by Boddice JA, I joined in the making of the Court’s orders on 20 May 2025.
2. [2]
   BODDICE JA:  On 19 March 2025, the applicant pleaded guilty to eight counts of supplying a dangerous drug, two counts of possessing a dangerous drug and one count of possessing anything used in the commission of supplying a dangerous drug.
3. [3]
   On the same date, the applicant was sentenced to 18 months’ imprisonment on each of six counts of supplying a dangerous drug and lesser periods of imprisonment for another supplying a dangerous drug count, one count of possessing a dangerous drug and the count of possessing anything used in the commission of supplying a dangerous drug.  The applicant was convicted and not further punished in respect of the remaining counts of supplying a dangerous drug and possessing a dangerous drug.  The sentences of imprisonment were ordered to be served concurrently.  A parole release date was set at 19 June 2025.
4. [4]
   The applicant sought leave to appeal those sentences.  If leave was granted, the sole ground relied upon was that the 12 week custodial component of the sentence was manifestly excessive.
5. [5]
   On 20 May 2025, the application for leave to appeal sentence was dismissed.  These are my reasons for joining in that order.

Offences

6. [6]
   All of the offences were committed over a period of three and a-half weeks when the applicant was 31 years of age.  At the time of their commission, the applicant had a relevant, but limited, prior criminal history concerning possession of utensils in 2016 and possession of drugs and utensils in 2018.  On each of the prior occasions, no conviction had been recorded.
7. [7]
   The applicant’s offending came to the attention of the authorities as her then de-facto partner was the target of a police operation.  The de-facto partner was subsequently charged with trafficking in methylamphetamine at a street level, for a period of a little over three months.  All of the applicant’s offending occurred during that period.
8. [8]
   Five of the supply counts related to supplying methylamphetamine, in circumstances where the applicant contacted her de-facto partner and confirmed a sale for him.  On each of those occasions, the applicant was sentenced on the basis that she had facilitated the supply to an unknown person through her de-facto partner.
9. [9]
   The three remaining supply counts concerned circumstances in which the applicant was contacted by a customer and the applicant offered to supply drugs to that person.  On each occasion, the applicant was sentenced on the basis of an arrangement to supply, rather than an actual supply.
10. [10]
    The remaining counts arose out of drugs and paraphernalia found whilst police executed a search warrant at the applicant’s address.  The applicant was compliant during the execution of the search warrant and provided her PIN code in accordance with the warrant.  During the search, police located and seized .486 grams of a substance that was analysed to contained methylamphetamine, 1 gram of cannabis, three water pipes, three glass pipes and a mobile phone.  The applicant admitted ownership to all items.  The applicant was sentenced on the basis that her possession of those drugs was for her own personal use.

Sentencing remarks

11. [11]
    The sentencing judge found that the offences were serious.  The applicant had, over a three and a-half week period, involved herself in the supply of methylamphetamine.  Although the applicant was to be sentenced in respect of five counts on the basis that she facilitated the supply to an unknown person, the sentencing judge observed that illicit drug use created immense problems in society and that there was a need for general and personal deterrence, as well as denunciation.
12. [12]
    The sentencing judge further observed that whilst it had been submitted that the applicant had been the subject of some domestic violence in the relationship, little was placed before the court linking her behaviour and the commission of the offences to any issues of domestic violence.
13. [13]
    The sentencing judge accepted that the applicant had entered an early plea of guilty; that she was now the sole parent of four young children; that she was no longer in a relationship with her de-facto partner; and that the applicant assisted in the care of her mother who had a significant health issue, by reason of a terminal illness.  The sentencing judge also accepted that the applicant had started using illicit drugs nine or 10 years prior to these offences and that it was now said that she was free of illicit drug use.  She was also remorseful for her offending conduct.
14. [14]
    The sentencing judge accepted that the applicant’s lack of significant criminal history, lack of any re-offending whilst on bail and unique family circumstances, were relevant to whether the applicant ought to serve any term of actual custody.  However, the applicant had knowingly placed her family unit at risk by the commission of these offences, as they had been committed whilst she had the care of four young children.  Further, whilst the applicant’s assistance of her ill mother was also relevant, an overall consideration of the matter supported a conclusion that a term of imprisonment, that did not involve actual custody, would inadequately recognise all of the relevant circumstances.
15. [15]
    The sentencing judge found that those factors supported a considerable reduction in the term to be served in custody from what would otherwise have been considered an appropriate sentence, thereby significantly reducing the period of actual imprisonment.

Application for leave

16. [16]
    The applicant submitted that the requirement that she serve actual custody, rendered the sentence manifestly excessive.  The applicant submitted that a sentence that allowed the applicant to stay in the community was preferable, under s 9(2)(a)(ii) of the Penalties and Sentences Act 1992 and that in those circumstances, a sentence requiring the applicant to serve three months’ actual custody, evidences a misapplication of sentencing principles.
17. [17]
    The applicant further submitted that public interest in preserving the family unit, in circumstances where there was strong prospects of rehabilitation, supported a conclusion that there was a “latent error” and a substantial injustice in requiring actual custody to be served by the applicant.
18. [18]
    There is no doubt that the applicant had substantial mitigating factors which could have supported the exercise of the sentencing discretion so as not to require the applicant to serve actual custody.  However, the fact that such a sentence may have been open, is not sufficient to support a ground of appeal that the sentence imposed was manifestly excessive.
19. [19]
    To succeed on such a ground, the applicant must establish that the sentence imposed was so different to that which would be imposed in comparable circumstances, as to warrant a conclusion that there was a misapplication of sentencing principles, or that the sentence imposed was plainly unreasonable or unjust.
20. [20]
    A consideration of all of the circumstances supports a conclusion there was no misapplication of principle.
21. [21]
    First, the sentencing judge rightly observed that the applicant’s offending involved serious criminal conduct.  Deterrence and denunciation properly loomed large.
22. [22]
    Second, the sentencing judge had regard to the significant mitigating factors in the applicant’s favour.  In doing so, the sentencing judge expressly reduced, by a significant degree, the period to be served in actual custody.
23. [23]
    Third, the sentencing judge expressly considered whether actual custody was warranted, having regard to the applicant’s particular circumstances including being the mother of four young children and caring for a terminally ill mother.  The sentencing judge concluded that notwithstanding those circumstances, the seriousness of the applicant’s criminal conduct warranted a period of actual custody.  Such a conclusion fell within a proper exercise of the sentencing discretion.
24. [24]
    There is also no basis to conclude that the sentence imposed was plainly unreasonable or unjust.  Whilst the applicant had responsibility for the care of four young children and was actively undertaking the care of her terminally ill mother, those factors of themselves could not be said to render a sentence of actual custody, not open.
25. [25]
    Importantly, those factors were expressly reflected in the reduction in the period required to be served in actual custody.  The magnitude of that reduction warrants a conclusion that the overall sentence imposed was neither plainly unreasonable, nor unjust.
26. [26]
    There is no merit in the applicant’s contention that the magnitude of that reduction, having resulted in a short period of actual custody, rendered the sentence plainly unreasonable or unjust, as it was contrary to the public interest in keeping together a family unit involving young children.
27. [27]
    Whilst the utility of short sentences, as observed by Sofronoff P in Rogan,^[1] is a factor for consideration on sentence, the shortness of the actual period in custody arose by reason of a significant reduction from what would otherwise have been the period in actual custody, having regard to the mitigating factors.  In such circumstances, the imposition of a relatively short period of actual custody does not evidence any misapplication of principle, or warrant a conclusion that the sentence imposed was plainly unreasonable or unjust.
28. [28]
    Further, unlike Rogan, the applicant came before the Court with a prior history for drug offending, the present offending represented an escalation from personal use to supplying, and there was no evidence of meaningful efforts at rehabilitation.
29. [29]
    As the applicant has not established any misapplication of principle, or that the sentence was plainly unreasonable or unjust, an appeal against sentence on the ground of manifest excess would be unsuccessful.
30. [30]
    BRADLEY JA:I joined in the orders made on 20 May 2025 for the same reasons expressed by Boddice JA.