R v Barton, Bridges and Attorney-General of Queensland

[1997] QCA 248

IN THE COURT OF APPEAL	[1997] QCA 248
SUPREME COURT OF QUEENSLAND
Brisbane	C.A. No.193 of 1997 C.A. No.194 of 1997
[R. v. Barton and Bridges; ex parte A-G]

THE QUEEN

v.

SIMON JEFFREY BARTON and DANIELLE FRESNIA BRIDGES

Respondents

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Pincus JA Davies JA Williams J

Judgment delivered 19 August 1997

Separate reasons for judgment of each member of the Court; Davies JA and Williams J concurring as to the orders made, Pincus JA dissenting.

APPEAL AGAINST SENTENCE ALLOWED IN EACH CASE. SENTENCE IMPOSED AT TRIAL SET ASIDE IN EACH CASE. RESPONDENT BARTON SENTENCED TO 4½ YEARS IMPRISONMENT WITH RECOMMENDATION FOR PAROLE AFTER SERVING 18 MONTHS. RESPONDENT BRIDGES BE CONVICTED AND SENTENCED TO 3 YEARS IMPRISONMENT WITH RECOMMENDATION FOR PAROLE AFTER 12 MONTHS.

CATCHWORDS:  CRIMINAL LAW - Appeal against sentence - Two respondents trafficking in lysergide - Bridges dealt with supplier then passed drug on to Barton - Significant amounts of lysergide - Seriousness of lysergide - Bridges pregnant when arrested and subsequently gave birth - Relevance of child - Bridges had purely commercial motive - Barton was drug addict.

R v. Chan (1993) 67 A Crim R 545

R v. Clarke (unreported, Court of Appeal of Queensland, CA No 393 of

1996, 28 November 1996)

R v. Grimes (unreported, Court of Appeal of Queensland, CA No 119 of

1987, 20 October 1987)

R v. Le & Le [1996] 2 Qd R 516

R v. O'Brien (unreported, Court of Appeal of Queensland, CA No 458 of

1996, 17 April 1997)

Counsel:	Mrs L Clare for the appellant. Mr G Long for the respondent Barton. Mr AJ Rafter for the respondent Bridges.
Solicitors:	Director of Public Prosecutions (Queensland) for the appellant. Legal Aid Queensland for the respondent Barton. Legal Aid Queensland for the respondent Bridges.
Hearing date:	18 July 1997

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 19 August 1997

I have read the reasons of Williams J in which his Honour sets out the circumstances placed before the sentencing judge. I have noted that his Honour is of the view that the Attorney’s appeal should be allowed in respect of both respondents Barton and Bridges.

As appears from the passage which Williams J has quoted, the comparable sentences which the Crown placed before the sentencing judge in relation to trafficking in LSD ranged from 3 to 5 years; as his Honour also mentions, the prosecutor, in discussing Bridges’ sentence, said:

"If, for example, Barton was to get four years, then perhaps she could
get three with a recommendation for parole at an earlier time".

The sentence which was in the event imposed on Barton was one of 3 years only and that appears to me to have been a light one. On the other hand, I find it difficult to agree that it is at a level warranting alteration by this Court; I have regard of course to Barton’s youth and early plea.

Any generalisation about drug sentences is likely to be able to be falsified by reference to particular examples, but it is my view that sentences in relation to LSD tend to be, and should be, in a lower range than those relating to heroin. The justifications for this being so are two: heroin is, but LSD is not, physically addictive, and secondly, the heroin trade creates greater problems in the community than does that in LSD.

A persistent difficulty in sentencing for drug trafficking is to assess the size of the business, that being a major factor in determining the proper level of a sentence. In the present case the judge was, as I read the transcript, invited to sentence on the basis that the amounts the respondents "were making" over a six month period average $1,500 per month - "on a good month about $2,000". It was not clear from this whether or not the profit was $1,500 per month, but the defence said and the Crown was not prepared to dispute that the amounts spoken of were gross. In the case of Chan (1993) 67 A.Crim.R. 545, the offender was dealing in a number of drugs and, as to one only of them (amphetamine) was at one stage selling $24,000 worth per week. "Currently" the dealings were between 2 and 4 oz. of amphetamine per week at, as I read the reasons, a gross price of $2,400 per oz. In contrast, in this case the only dealing was in LSD and that was said to be at a rate of $400 to $500 per week. It does not appear to me that cases such as Chan, where the figures suggest dealing on a much larger scale, form a very useful guide for the proper level of sentencing of these respondents.

The fact that in the last proposed dealing before the respondents were arrested Barton and Bridges were about to sell to the police agent over 2,000 tabs of LSD may properly be relied on as indicating that the respondents had the capacity and the willingness to deal at a much higher level than that ordinarily engaged in. But the respondents have the advantage that it was, as I read the transcript, put before the judge that he could properly sentence on the basis that the business was ordinarily at a level of some hundreds of dollars per week. Dealing at this level contrasts with the size of the trafficking in Clarke (C.A. No. 393 of 1996, 29 November 1996), where this Court fixed a 5 year sentence with a recommendation for parole after 18 months. There the heroin trading was quite substantial, the purchase price of the heroin being $80,000 to $100,000 over a period of 10 months. I am unable to agree that the appeal in respect of Barton should be allowed.

As to Bridges, a different view must be taken. As Williams J points out, Bridges was the organiser of the business and her role was a purely money-making one; she is not an addict. To uphold the non-custodial sentence in respect of Bridges, it would be necessary to approve of a view that a young woman with a young child should ordinarily not be imprisoned for organising commercial dealing in LSD of about the level disclosed in the record. Trafficking in LSD, a First Schedule drug, will except in quite unusual circumstances attract a sentence of imprisonment; but in view of Bridges’ youth, absence of previous convictions and of course her responsibility for the child, I would impose a rather lighter sentence than Williams J proposes; I would order that the appeal relating to Bridges be allowed, that the conviction of Bridges be recorded and that she be imprisoned for a period of 2 years with a recommendation that she be eligible to apply for parole after serving 9 months thereof. With respect to Barton, the Attorney’s appeal should in my opinion be dismissed.

I agree with the observations of Williams J as to the oddity that Brian Simms was not charged and agree that that matter should be drawn to the attention of the Police Commissioner.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 19 August 1997

I agree with the reasons for judgment of Williams J. and with the orders he proposes.

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 19 August 1997

Simon Jeffrey Barton and Danielle Fresnia Bridges, the respondents, each pleaded guilty to a charge that between 31 August 1995 and 29 February 1996 at Buderim they carried on the business of unlawfully trafficking in a dangerous drug namely lysergide. When that plea was recorded the Crown entered a nolle prosequi with respect to a number of counts of supply which essentially formed the basis of the trafficking charge.

The learned sentencing judge, for reasons which will be examined later, considered that there were grounds for differentiating between of the respondents when it came to sentence. Barton was sentenced to imprisonment for 3 years with a recommendation that he be eligible to apply for parole after serving 12 months. Bridges (without a conviction being recorded) was placed on probation for a period of 3 years and ordered to perform 240 hours of community service. The Attorney-General appeals against each of those sentences.

In the course of an undercover police operation the police agent was introduced by a person he had become acquainted with in the drug scene in the Buderim-Maroochydore area to the respondent Barton. In consequence of that the agent also met the respondent Bridges. During the period specified in the indictment there were six supplies of L.S.D. tablets to the agent. On each occasion Bridges obtained the drug, and gave it to Barton who in turn handed it to the agent. Particulars of those supplies are as follows

DATE QUANTITY PRICE

$

17.12.95	45 Tabs	500
19.12.95	45 Tabs	500
28.12.95	45 Tabs	500
04.01.96	50 Tabs	500
11.01.96	46 Tabs	500
10.02.96	90 Tabs	1,000
TOTALS:	321 Tabs	$3,500

Material placed before the sentencing judge and not challenged by the respondents was to the effect that the supplier to Bridges was a man named Simms. In the course of an interview with investigating police Bridges stated that she had been operating the drug business since about September 1995. She had been acquiring L.S.D. at $700 per 100 tabs, or $7 per tab. She was onselling for $11 per tab, thus making a profit of $4 per tab.

After the supply on 10 February the police agent asked Barton if he could get a larger quantity on the pretext that he wished to take a supply to Perth. The agent asked Barton for some 2,000 tabs and Barton indicated that would be okay and he would make the necessary arrangements. On 28 February 1996 the agent went to the home in which the respondents were residing. He had $13,000 with him which was the agreed amount for 2,000 tabs. He waited with both Barton and Bridges until Simms arrived at about 7.30pm. After Simms arrived the agent said he had to get the balance of the purchase price from his motor vehicle and left the house. That was the signal for other police who had the house under surveillance to enter the premises. Bridges was seen disposing of two envelopes into a cupboard. Those envelopes were seized by the police and were found to contain 2,378 tabs of L.S.D.

Mention was made by the prosecutor of there being .149 grams of lysergide involved, but it is not entirely clear whether that related to the 2,378 tabs only or those tabs plus the other 321. The difference is of no real significance. Lysergide is one of the four drugs specified in the First Schedule of the Drugs Misuse Regulation, and the relevant quantity specified in the Third Schedule thereof is .004 gram. One can see from that that there was a very considerable quantity of this drug involved in the dealings between the respondents and the police agent which constituted the principal evidence of trafficking.

Bridges candidly admitted to investigating police that she was involved in the business of trafficking in L.S.D. It appears that she was not at the time, and never had been, a drug user. According to the solicitor who appeared for her before the sentencing judge she saw drug dealing as an opportunity to improve her situation in life. She did not wish to be a waitress for the rest of her life.

Bridges was aged 22 at the time of dealing with the agent and had worked in a variety of fields prior to mid-1995 when she commenced living in a de facto type relationship with Barton. He was aged about 23 during the relevant period of the trafficking. Barton was apparently addicted to amphetamines and it seems he probably introduced Bridges to others in the drug scene. But it was Bridges who was the organiser of the business.

Bridges told the investigating police that she had supplied about five other people with drugs during the period in question. The investigating police found all the paraphernalia of drug dealing in the house; scales, clip seal bags, and the like. She said the only drug she sold was L.S.D. Though as already noted Barton introduced her in the first place to the drug scene, it was Bridges herself who established the contact with Simms, her major supplier. Bridges told the investigating police that she ultimately introduced Barton to Simms around December 1995 because she was going overseas to see her father for about six weeks and she wanted Barton to continue the business while she was away.

Bridges also told the investigating police that it was she who always worked out the price; having confirmed price and quantity she would give the drugs to Barton to give to the police agent.

The respondents apparently lived on unemployment benefits and money obtained from the drug sales. All profits from the drug trading were used to meet ordinary living expenses. She told the investigating police that over a six month period they averaged about $1,500 per month, and on a good month about $2,000. The implication from what she said was that those amounts were net profit, but her solicitor contended they were gross amounts. The solicitor placed before the sentencing judge some calculations tending to suggest that much less than $1,500 net per month was earned.

The Crown conceded that there were early pleas of guilty. Bridges had no previous convictions. Barton had a criminal history which probably reflected his drug dependency. In 1991 he was convicted of possession of a dangerous article and possession of property suspected of being stolen. In 1993 he was placed on probation on charges of attempted break and enter with intent, and possession of house-breaking implements in the night time. Between arrest and sentence on the present charges he had also been convicted of being found in an enclosed area without lawful excuse and obstructing police.

Before the sentencing judge the prosecutor indicated that trafficking and supplying in L.S.D. was not as common as trafficking and supplying in heroin or marijuana, and in consequence there were few comparable cases. He indicated that the cases he had found indicated a range of 3-6 years with the sentences not being as high as they were for trafficking or supplying in heroin. The following extract from the record shows what was placed before the learned sentencing judge

"But I have a number of comparables here, Your Honour, which suggest that range. The Queen v. Shane John Richardson: that was before Mr Justice Shepherdson on 7 February 1992. Your Honour, he was sentenced to imprisonment for five years and he was eligible for a recommendation for parole after serving 12 months of the sentence. I will hand these up to Your Honour after I read them into the record. The next one is Alfred Lee Mihajlovic before Mr Justice Derrington, 8 January 1991. He pleaded guilty to one count of trafficking in Lysergide. He was given three years' imprisonment. Jerome Dean Craft, before Mr Justice Demack on 19 August 1991. He pleaded guilty to one count of trafficking in LSD and he was given three years' imprisonment with a recommendation for parole after 12 months - and also some possession and producing charges there as well that he pleaded guilty to. Robert John Crasski - this is a Court of Appeal decision, Your Honour, CA No. 174 of 1991. He pleaded guilty to other supplying of other drugs, namely cocaine and cannabis and also LSD. For the cocaine he got six years but for supplying the LSD - there was nine counts of that - he was given four years. Peter John Antoine, before Mr Acting Justice Shanahan - similarly, a trafficking charge; he was given five years with a recommendation for parole after 12 months. He pleaded guilty to other drug charges. Peter John Grimes - two counts of supplying LSD. He was given five years' imprisonment. That is CA No. 199 of 1987."

The prosecutor pointed out that both respondents were close to the major suppliers. He contended that each of Barton and Bridges were "equal partners". After the learned sentencing judge referred to the fact that Bridges came within s.9(4) of the Penalties and Sentences Act and that imprisonment should only be imposed if no other sentence was appropriate in all the circumstances, the prosecutor responded:

"How can she be treated differently is in an early recommendation for parole, or not as a high head sentence. If, for example, Barton was to get four years, then perhaps she could get three with a recommendation for parole at an earlier time."

In that context I do not regard the prosecutor as specifically contending for a 4 year sentence for Barton. He had previously indicated a range of 3-6 years (though 5 was the longest sentence specifically referred to in the cases he cited) and his reference to 4 years was merely in a passage indicating how there could be an appropriate differentiation between Barton and Bridges.

It should also be recorded that Bridges gave birth to a child on 15 November 1996; apparently she was in the very early stages of pregnancy when arrested. The solicitor acting for Bridges informed the sentencing judge that the mothers of both Bridges and Barton had been very supportive, particularly with respect to the child.

The solicitor for Bridges and Barton did not dispute the sentencing range advanced by the prosecutor, but ultimately, mainly in response to observations made by the sentencing judge, contended for a non-custodial order for Bridges.

The learned sentencing judge referred to the seriousness of the offence and detailed the transactions involving the police agent. He recognised that an "offence of the seriousness of this nature must be ordinarily carry with it the imposition of a custodial sentence, taking immediate effect". He went on:

"The cooperation, the early guilty plea and the youth of the offenders would not, I consider, be sufficient of themselves to justify so lenient a sentence as one which did not lead to an immediate incarceration. But the young child is certainly a complicating factor. ... Bridges has no prior conviction. On the other hand, Barton has a criminal history. There is nothing to distinguish the two of them so far as the circumstances of the offences are concerned. Although Barton actually supplied the drugs to the undercover agent and, it would seem, to others with whom the two of them dealt, Bridges was instrumental in obtaining the product. The most important distinguishing feature between the two of them relates to the absence of a prior criminal history in the case of Bridges.
...
The prior criminal history, therefore, justifies some disparity. The absence of any

criminal history in the case of Bridges also emphasises in her case the prospect of rehabilitation. And then there is the child to consider. ... But if the child must be parted from a parent, it is appropriate to consider whether there are circumstances which would justify more lenient treatment of one rather than the other. And I think it may be found in the difference in prior criminal history and the related prospects of rehabilitation, and in s.9(4) of the Penalties and Sentences Act."

It was in those circumstances that the sentences particularised above were imposed.
On the hearing of the appeal much reference was made to the level of sentencing in cases

involving trafficking in or supplying heroin. The reasoning of the Court of Criminal Appeal in Grimes (unreported, CA 119 of 1987, judgment 20 October 1987) indicates that offences involving drugs specified in the First Schedule should be regarded more seriously than drugs specified in the Second Schedule; it was a case of supplying L.S.D. But that does not mean that L.S.D. and heroin must be equated for sentencing purposes. If only because it is more highly addictive and more readily available at the present time on the drug market, heroin offences can be distinguished from those involving L.S.D. But L.S.D. offences must be treated seriously, not only because it is a First Schedule drug, but also because very small quantities produce hallucinogenic effects which can have devastating consequences for a user.

Unfortunately in placing comparable decisions before the sentencing judge the prosecutor did not refer to the decision of this court in Chan (1993) 67 A. Crim. R. 545, a case involving trafficking in L.S.D. In that case the offender sold to an undercover police agent L.S.D. and other Second Schedule drugs over a period of a few months. L.S.D. was delivered on four occasions; 500 tabs of the drug containing in all .04725 gram was supplied. The offender was a 47 year old businessman who used his entrepreneurial skills to exploit trafficking in a range of drugs for personal gain. He was initially sentenced to 4½ years' imprisonment. The court noted there was no contrition though a plea of guilty was entered. The court (Pincus and McPherson JJA and Byrne J) said at 548:

"But for the 11 months spent in presentence custody and the guilty plea, a sentence of 11 years' imprisonment would have been appropriate. Taking those two matters into account, a sentence of 7 years' imprisonment should be imposed."

Though Chan involved a more professional trafficking operation, and larger sums of money as well as a greater variety of drugs were involved, nevertheless the remarks made by this court on that occasion strongly suggest that the sentences here were unjustifiably low.

Whilst it is true that many supply charges will indicate a higher level of criminality than a trafficking charge, it cannot be overlooked that the legislature has made the offence of trafficking the most serious drug related offence. It is against that background that this court has remarked in cases such as O'Brien (unreported, CA No 458 of 1996, judgment delivered 17 April 1997) that a trafficking offence will ordinarily warrant the imposition of a custodial sentence. There McPherson JA (with the concurrence of Fitzgerald P and Mackenzie J) said:

"In the end, I think that, unless we are prepared to depart substantially from existing sentencing patterns, a trafficking offence of this character must ordinarily continue to attract a sentence of imprisonment, although in saying that we do not intend to rule out the possibility that a non-custodial sentence might be appropriate in a proper case."

O'Brien was a 21 year old first offender. He was a heroin addict who had made spontaneous efforts at rehabilitation prior to arrest and showed genuine remorse. He had cooperated with authorities and pleaded guilty. He had also completed 125 hours of the probation and community service order initially imposed on him for trafficking in heroin. The ten supplies in question involved a total of 4.355 grams of powder containing 2.374 grams of pure heroin in exchange for a total of $3,680. The sentence imposed by the Court of Appeal was 4 years' imprisonment with a recommendation that he be eligible to apply for parole after serving 12 months.

Brief reference can also be made to the matter of Sandra Ann Clarke (unreported, CA 393 of 1996, judgment delivered 28 November 1996). There the offender had pleaded guilty, inter alia, to a charge of carrying on the business of trafficking in heroin and cannabis. A sentence of 5 years' imprisonment wholly suspended for 5 years was initially imposed, but the Court of Appeal substituted a sentence of 5 years' imprisonment with a recommendation that she be eligible to apply for parole after serving 18 months. The offender was 23 years of age, had a five year old son, was heroin addict, and had a previous conviction for possession of cannabis. It was estimated that some 60 grams of heroin were involved and large amounts of money were mentioned.

Of some relevance for present purposes is the observation by the court in Clarke with respect to the significance of the fact that she had a young child. There it was said: "Account must be taken of her young son's need for maternal care and attention, but it does not make the respondent immune to appropriate punishment."

The relevance of the fact that a person facing sentence has a young child was also discussed by this court in The Queen v. Tho Le and Diem Mac Le (1996) 2 Qd. R. 516. Pincus JA summed up the position by saying at 519 that "the practice of Queensland courts is to give consideration, when appropriate, to the effect of a sentence on an offender's young children." Thomas J, with whom Williams J agreed, said at 522 that whilst such "matters evoke sympathy the hardship or stress shared by the family of an offender cannot be allowed to overwhelm factors such as retribution and deterrence."

Having regard to all that has been discussed herein I have come to the conclusion that the sentences imposed were so manifestly inadequate as to call for correction by this court. The sentences imposed fail to reflect the gravity of the offence, fail to take adequately into account the issue of general deterrence, and give too much weight to factors going to mitigation.

The material put by the prosecutor to the learned sentencing judge indicated a range of 3- 5 years' imprisonment for an offence of this type, and the degree of criminality involved, particularly in the events of 28 February, was such as to warrant more than the very bottom of the range so far as Barton was concerned. The only reason there was no supply on 28 February was because the police intervened. The drug was there for sale and Barton was a party to what occurred. He had been groomed by Bridges to run the business in her absence and he was fully familiar by that date with all aspects of it. He had previous convictions, and the only factor in his favour justifying some moderation in sentence was his early plea of guilty. Particularly bearing in mind the level of sentencing for this offence approved by this court in Chan I am of the view that a sentence of 4½ years' imprisonment was called for taking into account his early plea of guilty; I would add a recommendation that he be eligible to apply for parole after serving 18 months of that sentence.

Given the fact that Bridges was the business leader of the team ordinarily a sentence of at least 5 years' imprisonment would be called for if there were no mitigating circumstances. In her case she is entitled to a significant discounting because of her early plea of guilty and the fact that she had no previous convictions. Added to that there is the factor of her young child. The lowest sentence that could be imposed taking into account the seriousness of the offence and all of the other matters to which reference has been made is 3 years' imprisonment with a recommendation that she be eligible for release on parole after serving 12 months thereof.

Particularly given the concern of the Attorney-General that appropriate sentences be imposed upon each of the respondents it is disturbing to note that Simms, who was caught red- handed by the police on 28 February 1996, has not been charged with any offence. Clearly on the material placed before the learned sentencing judge Simms was a more significant supplier of L.S.D. than were the respondents. All that this court knows is what appears in the record as having been said to the sentencing judge by the Crown prosecutor; that statement was in the following terms:

"Now, Your Honour, there's a strange twist that occurred on 28 February, one about which I've sought instructions from the arresting police officers as to how, believe it or not, Brian Simms was not charged. It appears, Your Honour, that he was a British national and that on the night in question he was detained and simply allowed to leave. The explanation I got was due to a breakdown in communications. He was then deported within 24 hours because he was an alien - the visa - for being in Australia illegally and, Your Honour, he was deported to Britain within 24 hours without any charges being laid and the only explanation the police could give me when I spoke to them was that there was simply a breakdown of communication as to his role in the chain. It's a most unsatisfactory explanation I received, but that's the best that they could give me for why Simms was there, caught red-handed and not charged, but in fact simply deported very swiftly out of the country back to Britain. And I asked him are they intending to extradite him back to Australia to face these charges and the answer is no. They said that they made a decision that that will not be the case."

In the circumstances the attention of the Commissioner of Police should be drawn to that passage so that further steps can be taken to ensure that all involved in the relevant criminal activity are brought to justice.

In each case I would allow the appeal set aside the sentences imposed and in lieu thereof order that Barton be imprisoned for a period of 4½ years with a recommendation that he be eligible to apply for parole after serving 18 months thereof, and that Bridges be convicted and imprisoned for a period of 3 years with a recommendation that she be eligible to apply for parole after serving 12 months thereof.