R v UQD[2021] QSC 50

SUPREME COURT OF QUEENSLAND

1. [1]
   Ms UQD,^[1] you have pleaded guilty before me to four counts on an indictment being:

Count 1 That between 22 March 2019 and 24 September 2019 at Margate and elsewhere in the State of Queensland, you carried on the business of unlawfully trafficking in the dangerous drugs methylamphetamine and cannabis.^[2]

Count 2 That on 23 September 2019 at Margate in the State of Queensland, you unlawfully had possession of the dangerous drugs methylamphetamine and cannabis.^[3]

Count 3 That on 23 September 2019 at Margate in the State of Queensland, you had in your possession a mobile phone, a set of digital scales and a quantity of clipseal bags that you had used in connection with the commission of the crime of trafficking in dangerous drugs.^[4]

Count 4 That on or about 23 September 2019 at Margate in the State of Queensland, you received a driver’s licence which had been stolen and you had reason to believe the thing had been so obtained, and the events by which the thing was obtained was a crime.^[5]

2. [2]
   The circumstances of the offending are not contentious and they have been reduced to an agreed statement of facts.  It is necessary to briefly record some of those facts. 
3. [3]
   On 3 September 2019, police executed a search warrant at an address in Margate where you were present.  Police seized your mobile telephone and conducted a Cellebrite examination of it in due course.  That examination showed that you had been trafficking in methylamphetamine and cannabis for a period of about six months between March and September of 2019.  That is the trafficking count which is count 1 on the indictment.  I will return to the further particulars of that trafficking count shortly.
4. [4]
   On 23 September 2019, a second search warrant was executed at your address.  That search located a gram of cannabis which was inside a metal tin and two clipseal bags containing methylamphetamine.  The weight of pure methylamphetamine was .024 grams.  The possession of cannabis and methylamphetamine constitutes count 2 on the indictment.
5. [5]
   As already observed, your mobile telephone had been seized on 3 September 2019.  On 23 September 2019, police found at your residence 100 large and 100 small clipseal bags and a set of digital scales.  The mobile telephone, the digital scales and the clipseal bags are the subject of count 3 on the indictment.  Stolen property was also located including two Queensland driver’s licences in male names.  That constituted count 4.
6. [6]
   Returning now to count 1 the offence of trafficking in dangerous drugs; the evidence showed that you had at least 14 customers based in the Moreton Bay area.  You were mainly supplying quantities of methylamphetamine up to .5 of a gram but occasionally supplied larger quantities.  The minimum quantity of cannabis supplied was 7 grams.  In total, you supplied methylamphetamine on 13 occasions of which there was evidence of eight actual supplies and five acts preparatory to supply, which under our law constitutes an offence of supply.^[6]
7. [7]
   You supplied cannabis on four occasions with evidence of two actual supplies and two acts preparatory to supply.  The acts which constitute counts 2 and 3 on the indictment are particulars of the trafficking count which is count 1.  Count 4, which is receiving tainted property, is not a particular of count 1 or for that matter any other count.  However, it is related to your drug offending in that, over the period of the trafficking, you were a user of drugs and being in possession of stolen property is indicative of a chaotic life affected by drug addiction.
8. [8]
   The Crown conceded that your pleas of guilty were early pleas.^[7]  As I will soon explain you have taken significant steps towards rehabilitation and it is obvious to me that your pleas of guilty reflect not only a desire to cooperate with the administration of justice but also show significant and genuine remorse for your conduct.  You have a long traffic history going back to 2002 although the relevance of that to the current offending is marginal at best.
9. [9]
   You have a prior criminal history.  The first entry is in November 2001 when you were convicted in the Townsville Magistrates Court of a count of stealing as a servant.^[8]  I have no particulars of that offending but the Court’s response to it indicates that it was not a serious example of such offending.  No conviction was recorded against you and you were fined $250.  The next conviction on your criminal history is on 19 July 2016.  You were born on 18 February 1980.  So, ignoring the 2001 conviction as an aberration, you were not convicted of any criminal offence until you were 36 years of age.
10. [10]
    There are a number of convictions in the Redcliffe Magistrates Court on 19 July 2016 which are all drug-related.  No convictions were recorded and you were fined $800.  You were convicted in the Redcliffe Magistrates Court on 15 November 2017.  Again, those offences were drug-related.  Again, no convictions were recorded and you were fined $900. 
11. [11]
    There was a third episode of offending for which you were convicted in the Sandgate Magistrates Court on 5 July 2018.  Again, the offences were drug-related and included a charge of possession of a dangerous drug.^[9]  Convictions were recorded on that occasion and you were placed on 12 months’ probation.  The current offending occurred whilst you were on that probation order.
12. [12]
    There are two probation reports in relation to your conduct on probation.  The first report provided what was described as a “summary”, in these terms. 

“While Ms UQD technically complied with many elements of the order, she failed to engage in treatment or behaviour change, instead continuing to offend in like manner during the period of the order.  This suggests she is not suitable for further supervision on probation, as it did not act as a deterrent for like offending.”

13. [13]
    The second report is more favourable.  The summary there is this:

“Ms UQD engaged well with supervision and addressed her needs where necessary, with the exception of attending a psychologist.  She is considered suitable for further community-based orders at this time.

14. [14]
    It is unusual, frankly, to see a citizen who apparently leads a law-abiding life to then turn to serious criminal offending at the age of 36.  The material placed before me, which is all unchallenged, explains why and how that occurred in your case.  You were married and had two children, Zac^[10] and Holly.^[11]  Your marriage disintegrated.  Your husband was abusive and introduced you to drugs.  I was told, and this was not challenged in any way, that your husband committed some 60 breaches of a domestic violence order made in your favour.  The abuse which was suffered at the hands of your husband was both physical and emotional.  I accept the unchallenged evidence that it was this physical and emotional abuse and the breakdown of your marriage which explains why, at the mature age of 36, you resorted to drugs and crime.
15. [15]
    There is a significant amount of evidence which supports the submissions made on your behalf that your husband’s behaviour was a significant contributing factor to your offending.  Of course, it is not only you who has suffered at the hands of your husband, but also your children.  Your son, Zac, in a letter that has been tendered before me says this:

“I have been a first-hand witness to the traumatic experiences that have occurred in UQD’s life, most important over the past five years through a consistent verbally and physically abusive ending to a 13-year marriage and family environment that we were also accustomed to.  These events would lead to a complete shift in lifestyle that UQD had to adjust to very abruptly, without any guidance, while continuing to deal with constant abuse, poverty and also being the primary parent for my sister, Holly, and I.  This massive shift in lifestyle came as a shock to Mum, along with other unfortunate traumatic events that continued to occur over these past years have resulted in the deterioration of not only her mental health but her overall wellbeing.”

16. [16]
    You have taken significant steps to rehabilitate yourself.  Tendered to me were 11 drug screen certificates which all show no illicit drugs detected in your system.  The dates of these certificates range from 29 May 2020 to 13 August 2020.  There are no certificates after 13 August 2020 but that is because you took aggressive steps to rid yourself of your drug addiction.  On 1 September 2020, you entered the Transformations Drug and Alcohol Rehabilitation Facility in Hervey Bay.  There, you undertook a residential rehabilitation course and completed the program in January 2021.
17. [17]
    As already observed, the Crown acknowledged your early plea of guilty. 
18. [18]
    As to your performance on probation, the Crown points to the adverse probation report and says:  “[you] failed to engage in treatment to address [your] underlying substance abuse and mental health related issues, which has no doubt contributed to [your] recidivism”.  To the extent that the first probation report effectively wrote you off, the author was very wrong and misjudged you.  You may not have engaged in treatment to address substance abuse and mental health related issues whilst on probation, but you have certainly done so now. 
19. [19]
    The Crown points to the following aggravating circumstances of the offending, being:

1. you trafficked in two different drugs, the primary one being methylamphetamine;
2. you trafficked while on probation for drug possession;
3. the trafficking marked a significant escalation in your drug offending.

20. [20]
    Added to those factors is the fact that the trafficking occurred over a relatively lengthy period of six months. 
21. [21]
    The Crown conceded that you were a drug user over the period of the offending.  The Crown accepts that the trafficking business was unsophisticated and run on a small scale, very much a reflection of your desperate circumstances as explained quite eloquently by your son. 
22. [22]
    The Crown pointed to the need for personal and general deterrence and submitted that a head sentence of three to four years imprisonment is appropriate with release after serving one-third of the sentence.
23. [23]
    During argument however, the Crown Prosecutor fairly conceded that the circumstances of your case were such that it was within a sound discretionary range to impose a sentence not involving actual custody immediately. 
24. [24]
    On your behalf, it was submitted that a head sentence of three years was justified but the special circumstances of your case should result in orders being made so that you are not required to immediately serve any actual imprisonment.
25. [25]
    Dangerous drugs are a scourge upon society.  They and the people who peddle them inflict enormous damage and suffering upon other citizens.  The decided cases are full of comments to the effect that both personal and general deterrence loom large in the consideration of the exercise of the sentencing discretion in such cases. 
26. [26]
    There have now been a number of cases decided by the Court of Appeal, considering the circumstances where it might or might not be appropriate to impose a sentence for trafficking in Schedule 1 drugs, which does not result in a term of immediate imprisonment.
27. [27]
    In R v SBK,^[12] Chesterman JA, with whom Keane JA (as his Honour then was) agreed, said this:

“The Courts would fail in their duty to do what can be done to suppress trafficking in dangerous drugs and the public would, I think, be affronted if a dealer in dangerous drugs, even one who confessed so frankly and cooperated so fully as did the applicant, was not sent to jail even briefly.”

28. [28]
    However, since SBK, there have been sentences for trafficking in Schedule 1 drugs not involving actual custody which have survived appeal.  See, for example, R v Dowel; Ex parte Attorney-General (Qld).^[13]  See also, R v Casagrande^[14] and R v Engellenner.^[15] 
29. [29]
    In R v Ritzau,^[16] Morrison JA reviewed the various cases, including Dowel.  His Honour stated in the course of judgment:

“Immediate release on parole or immediate suspension is appropriate ‘only in exceptional circumstances’, to use the phrase in Dowel at [16].”

30. [30]
    It has from time to time been submitted to me that his Honour’s judgment requires firstly, the identification of exceptional circumstances before a discretion arises for consideration to impose a sentence not involving actual custody for the offence of trafficking in a Schedule 1 drug.  It is not the law that the sentencing discretion is somehow fettered in that way and that is not, in my respectful view, what his Honour intended to convey. 
31. [31]
    In his Honour’s careful review of the authorities, his Honour quoted from the judgment of Muir JA in Dowel.  There, Muir JA said, in a passage quoted by Morrison JA in Dowel:

“The considerations which prompted the leniency of the Court in Casagrande and Engellenner were, in some respects, different from the present here.  The cases are useful, however, as demonstrations, if any demonstration is needed, that even in drug trafficking cases, there is no inflexible rule necessitating the imposition of a custodial sentence.  Each sentence must be imposed by reference to the facts of the case, in light of the relevant statutory requirements, sentencing principles and standards derived from statute and decided and comparable sentencing decisions.” (emphasis added)

32. [32]
    Morrison JA’s analysis of the cases show that, consistently with Muir JA’s observations in Dowel, there is no fetter upon the sentencing discretion.  The aim of the process is to impose a sentence which is just in all the circumstances.  Section 9 of the Penalties and Sentences Act 1992, prescribes the purposes and considerations relevant to achieving that aim.  I have turned my mind, of course, to the provisions of s 9.  York v R^[17] is an example of a case where the proper application of principle resulted in an offender, guilty of serious drug offending, being the subject of a wholly suspended sentence.  That shows the breadth of the sentencing discretion.
33. [33]
    Having said all that, the fact remains that the proper application of sentencing principles will usually result in sentences involving actual imprisonment for an offence as serious as trafficking in a Schedule 1 drug.  Cases where the imposition of a sentence not involving actual custody will, therefore, in that sense, be “exceptional”.
34. [34]
    As is shown by the analysis of the cases by Morrison JA in Ritzau, cases where a sentence not involving actual custody is justified will be rare and will often be ones where the offender is very young, perhaps teenage, did not traffic for profit, cooperated with the authorities and rehabilitated.  See Ritzau at paragraph [38].
35. [35]
    The absence, though, of one or all of those factors does not necessarily mean that a sentence involving no actual immediate custody is not appropriate.  In R v Stamatov,^[18] Applegarth J, with whom Gotterson JA and Atkinson J agreed, considered Ritzau and then said, at paragraph [96]:

“[96] The words ‘exceptional circumstances’ were used by Morrison JA in R v Ritzau in the course of discussing comparable sentences:

‘Immediate release on parole or immediate suspension is appropriate ‘only in exceptional circumstances’, to use the phrase in Dowel at [16].’

This should be understood simply as a restatement of Dowel at [16].  The last sentence of [16] in Dowel was an observation about sentencing trends, not the statement of a rule.”

36. [36]
    I respectfully agree with that observation by Applegarth J which, as I have said, was also endorsed by Gotterson JA and Atkinson J. 
37. [37]
    You have committed serious offences.  As I have already observed, drug offending inflicts enormous damage on the community.  However, so does domestic violence.  You are, on the material before me, a victim of significant domestic violence. 
38. [38]
    There is large community concern over illicit drugs but there is also large community concern over domestic violence.  The fact that you suffered domestic violence at the hands of your husband is in my view, a relevant consideration to your sentencing, especially to the extent that it explains your offending.^[19]
39. [39]
    I find, on the uncontested material before me, that you were living a conventional productive life until the domestic violence within your marriage caused your marriage to end and your life became derailed.  Over the ensuring period, you committed serious offences before an awakening, which has led to your rehabilitation.  In my judgment, notwithstanding the seriousness of your offending, the circumstances here are special. 
40. [40]
    Personal deterrence is of little weight, as you have rehabilitated and returned to your law-abiding life.  The case is not a proper vehicle, in my view, for general deterrence, given the circumstances that I have explained. 
41. [41]
    The sentences to be imposed upon you ought to be structured so as to reflect the seriousness of the offending but not involve you serving a period of actual imprisonment unless you reoffend. 
42. [42]
    As already observed, counts 2 and 3 on the indictment are particulars of count 1.  Therefore, it is appropriate in relation to counts 2 and 3 to convict you but take no further action.
43. [43]
    Count 4 is not a particular of the trafficking and it is not directly related to it.  However, as earlier observed, the offence of receiving tainted property is reflective of your chaotic life over this period and therefore, indirectly related to the trafficking and other drug offences. 
44. [44]
    As I have observed on numerous occasions, count 1 is by any objective measure a serious offence.  The sentence must reflect the seriousness of your offending.  It should attract a sentence of four years imprisonment.
45. [45]
    For the reasons I have explained that sentence will be wholly suspended.  I intend to set an operational period of five years.
46. [46]
    While I am convinced that you have rehabilitated yourself and the prospect of you reoffending is very low, you have experienced a period in your life of extreme instability and in my view, you ought to be the subject of supervision for a period.  I intend to place you on probation for a period of 12 months, following an approach endorsed by the Court of Appeal in R v Hood.^[20]
47. [47]
    Sentences were imposed:

Count 1: Four years imprisonment wholly suspended from 25 February 2021 with an operational period of five years.^[21]

Count 2: Convicted with no further action taken.

Count 3: Convicted with no further action taken.

Count 4: Defendant released on probation for 12 months.^[22]