R v Binns

[1997] QCA 249

IN THE COURT OF APPEAL	[1997] QCA 249
SUPREME COURT OF QUEENSLAND
Brisbane	C.A. No. 195 of 1997
[R. v. Binns]

THE QUEEN

v.

MELISSA ANN BINNS

(Applicant) Appellant

Davies JA
McPherson JA

Williams J

Judgment delivered 19 August 1997

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL AGAINST SENTENCE ALLOWED. SENTENCE IMPOSED AT TRIAL SET ASIDE. APPLICANT SENTENCED TO 3 YEARS IMPRISONMENT WITH RECOMMENDATION FOR PAROLE AFTER NINE MONTHS.

CATCHWORDS:CRIMINAL LAW - Appeal against sentence - Six counts of supplying lysergide - Acted as intermediary - No financial benefit - Seriousness of lysergide - Whether comparable seriousness with heroin.

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

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

1987, 20 October 1997)

R v. Groth (unreported, Supreme Court of Queensland, Williams J, 3

December 1996)

R v. Hall (unreported, Court of Appeal of Queensland, CA No 81 of 1997, 12

May 1997)

R v. Patena (unreported, Court of Appeal of Queensland, CA No 107 of

1996, 28 May 1996)

R v. Vellacott (unreported, Court of Appeal of Queensland, CA No 164 of

1983, 15 August 1983)

Counsel:	Mr A Kimmins for the applicant/appellant. Mr P Rutledge for the respondent.
Solicitors:	Laveny & Co for the applicant/appellant. Directors of Public Prosecutions (Queensland) for the respondent.
Hearing date:	16 July 1997

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 - McPHERSON J.A.

Judgment delivered 19 August 1997

I have read and agree with the reasons of Williams J. for granting this application. The appeal should be allowed. The sentence proposed in those reasons should be substituted for that imposed by the primary judge.

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 19 August 1997

This is an application for leave to appeal against a sentence imposed by a judge of the Trial Division of the Supreme Court on 28 April 1997. The applicant pleaded guilty to six counts of supplying lysergide; particulars supporting each charge being as follows:

DATE WEIGHT MONEY

$

10 October 1995	.0052 gram	1,035
13 October 1995	.0049 gram	1,000
23 October 1995	.0039 gram	1,000
24 October 1995	.0035 gram	1,000
12 November 1995	.0029 gram	1,000
19 November 1995	.0096 gram	1,900

Thus the total weight of L.S.D. involved was .03 gram, and the monetary value on supply a total of $6,935. There were 700 tabs involved in total.

The material placed before the learned sentencing judge established that the applicant was an intermediary who was actively involved in each of the transactions. But, as was accepted by the learned sentencing judge, the applicant received no financial benefit from the commission of the offences.

An undercover police agent operating in the Maroochydore area was introduced to the applicant by another female. The agent made an arrangement with the applicant to purchase 100 tabs of L.S.D. The applicant subsequently spoke by telephone to a person described in the material as "her supplier" and further arrangements were thus made. The agent and the applicant then went to the rear carpark of the Waterfront Hotel, Maroochydore, and waited for a period of time. Whilst there the applicant told the agent that the price for 100 tabs was $1,100. The agent indicated he only had $1,035 and gave it to the applicant, asking her to do what she could. The applicant went away for a short time and then returned with a white envelope containing 100 tabs of L.S.D. That constituted the first count on the indictment.

On the occasion of the commission of the second offence the agent asked the applicant if he could in fact meet the supplier rather than deal through her. The applicant replied that she would try and arrange it "as she would rather not be involved in the business". The applicant made a telephone call using the agent's mobile phone, and in due course the supplier (Verrall) arrived. The applicant went to the vehicle in which Verrall was, gave him $1,000, and returned with the drug.

The prosecutor informed the sentencing judge that counts 3 and 4 followed a similar Before the events constituting count 5 the agent was introduced to Verrall by the applicant. With respect to counts 5 and 6 the applicant arranged for the agent and Verrall to meet and was present when the transaction took place, though she did not actually handle either the drug or the money.

pattern.

On that material the applicant willingly participated in the supply of a large quantity of L.S.D. The prosecutor drew to the attention of the sentencing judge the fact that the quantity specified in the Third Schedule of the Drugs Misuse Regulation with respect to L.S.D. was .004 gram. Here the total of the drug supplied was .03 gram, 7½ times the amount specified in that schedule.

The maximum penalty for each supply count was 20 years' imprisonment.

The prosecutor submitted to the sentencing judge that supply of L.S.D. should be equated

with the supply of heroin for sentence purposes, each drug being specified in the First Schedule.

Against that background he referred to Patena (unreported, CA No 107 of 1996, judgment 28 May 1996). That decision was concerned with eight counts of supplying heroin; the total weight involved was 8 grams and the amount of money paid was slightly in excess of $10,000. In broad terms it can be said that the offender there got little or no financial benefit from the transactions other than that she was able to feed her own drug habit. The Court of Appeal regarded the sentence of 5 years' imprisonment with a recommendation for parole after 15 months as "a substantial one, but not such as to be properly characterised as manifestly excessive". The offender was 29 years of age and had no previous convictions.

Before the sentencing judge counsel for the applicant tendered a number of references. It must be recorded that they speak very favourably of the applicant's work habits. Clearly she is a person who impressed her employers.

Further, a letter signed by the undercover police agent addressed to the applicant was tendered. Generally it expressed his regret that he was responsible for the charges being laid. Counsel for the applicant submitted that it indicated he regarded the applicant as a "good person", but that is probably putting the matter too highly.

Her counsel indicated that the applicant had been dependent upon "speed" and indicated that was the drug involved in the possession offence in December 1992 appearing in her criminal history. He also said that the conviction for conspiracy to pervert the course of justice was related to that dependency; she falsely swore in an affidavit she was not using drugs. He further indicated that she had then developed an addiction to amphetamines, and that would appear to relate to a period when she was living on the Sunshine Coast. The explanation put forward for her assisting the undercover police agent was that she thought she was doing him a favour.

In addition to the prior convictions mentioned above the applicant had a number of convictions for stealing type offences commonly found in the record of a drug addicted person. She has never previously been sentenced to imprisonment.

Finally her counsel submitted that the applicant wished to remove herself from the drug scene. She had an intention to return to Victoria to be with her parents and her child.

The learned sentencing judge in his remarks referred to her plea of guilty, her early indication of her wish to have the matters disposed of as soon as possible, and the fact that she received no financial benefit from the commission of the offences. He referred to the letter from the undercover police agent but said it was "of only marginal relevance."

He then referred to the gravity of the offences and concluded that imprisonment was called for but said that "the mitigating factors that have been placed before me will be given effect to in a recommendation in relation to parole". He then imposed the sentence of imprisonment for four years with a recommendation that the applicant be eligible for release on parole after serving one year.

On the application before this court her counsel submitted that the sentence was manifestly excessive and should be varied so that the applicant was released immediately either on probation or subject to a suspended sentence. As at the date of hearing she had served 2½ months in custody.

Counsel for the applicant submitted that she should be regarded as a user of L.S.D. and therefore treated more leniently than otherwise might be the case. Whilst the material does indicate that she has had an addiction to "speed" or amphetamines there is nothing to indicate that she has been a user of L.S.D.

In the course of submissions counsel for the applicant placed emphasis on the early plea of guilty, the fact that the applicant received no financial benefit, and her attempt to dissociate herself from the transactions. He also referred to the references placed before the learned sentencing judge. Employment was available should the applicant be released from prison.

It has been recognised over many years that because heroin and L.S.D. are placed in the First Schedule they (and the other drugs therein specified) should be regarded more seriously than drugs specified in the Second Schedule. The sentencing judge in Grimes (unreported, 16 June 1987) dealing with two counts of supplying L.S.D. said, inter alia:

"... the Legislature has made it clear ... that the courts must adopt a more severe approach to sentence when lysergide is involved. That such is so is clearly indicated by the fact that lysergide, along with heroin and cocaine, form three of the four drugs specified in the First Schedule ... ."

In that case some 300 trips were involved in the supply, and a sentence of 5 years' imprisonment was imposed. On appeal (C.A. 119 of 1987, judgment 20 October 1987) the Court of Criminal Appeal (Kelly SPJ Ryan and Moynihan JJ) confirmed the sentence. Kelly SPJ said "no error has been shown on the part of the learned trial judge as to the approach which he should adopt in view of the enactment of the Drugs Misuse Act. The scheme of that legislation does draw a distinction between the four drugs specified in the First Schedule, of which L.S.D. is one, and other drugs. In the case of the supply of a drug specified in the First Schedule the punishment prescribed ... in the case of supply ... are more severe than in the corresponding circumstances where the drug is one specified in the Second Schedule." Ryan J referred to the relevant provisions of the Drugs Misuse Act and went on: "That manifests, in my opinion, the particular concern of the Legislature with offences involving those four drugs, a concern which the courts had already expressed and reflected in the sentences they had imposed for such offences. It seems to me to be proper for the courts to have regard to this expression of legislative concern in respect of these four drugs and to impose sentences which recognise the seriousness of supplying or producing or possessing any of those dangerous drugs listed in the First Schedule."

But that does not mean that L.S.D. and heroin must be equated for sentencing purposes. Offences involving L.S.D. are more serious than those involving Second Schedule drugs, but within each Schedule there is no necessary equality. Heroin may be distinguished from L.S.D. if only because it is more highly addictive.

There have been few other cases coming before the courts involving the supply of L.S.D. alone; more frequently one finds sentences dealing with supply or possession of a mix of drugs including L.S.D.

A recent example of such a case is the decision of this court in DG Hall (unreported, C.A. No 81 of 1997, judgment delivered 12 May 1997). There the applicant had pleaded guilty to two counts of possession of dangerous drugs. The first was that he had possession of methylamphetamine in various forms, tetrahydrocannabinol, cocaine and L.S.D. The second was that he had in his possession L.S.D., MDMA, tetrahydrocannabinol and methylamphetamine. In the latter the L.S.D. exceeded the quantity specified in the Third Schedule. The applicant sought leave to appeal against the sentence of 3 years' imprisonment on each offence. He was 28 years of age and had two previous minor drug related convictions. The sentencing judge said:

"On analysis there was a total quantity of lysergide in the 350 squares of .025 gram. That is approximately six times the quantity specified in the Third Schedule ... given that particular quantity it is clear to me that there was some commercial element involved. If you did not have the drug directly for commercial sale, you would have had that quantity in your possession for distribution at least among your friends, and that, of course, is just as bad."

In delivering the judgment of the Court of Appeal Davies JA (with whom McPherson JA and Lee J agreed) said that the sentence, in the absence of a recommendation for early release on parole was "a high one and there is therefore some merit in the submissions for the applicant. However, having regard to the seriousness of these offences, including the commercial element involved in the second, and the importance of public deterrence in cases of this kind, I cannot be satisfied that the sentence imposed was outside the range of a sound sentencing discretion."

Vellacott (unreported, C.A. No 164 of 1983, judgment delivered 15 August 1983) is another appellate decision with respect to the sentence on conviction of one count of supplying L.S.D. and one count of possession of L.S.D. The total value of the drug in question there was of the order of $16,000, but the applicant stood to gain relatively little from his involvement. The Court of Criminal Appeal did not interfere with a sentence of three years' imprisonment.

Counsel for the applicant referred to a number of single judge decisions dealing with the supply of L.S.D. Hargrave (Mackenzie J, unreported, 10 March 1997) concerned a series of counts of supplying methylamphetamine and lysergide. The offences were apparently committed by the appellant with the object of feeding his methylamphetamine addiction. By inference the quantity of L.S.D. involved was less than the amount prescribed in the Third Schedule. A sentence of two years' imprisonment with a recommendation for parole after nine months was imposed.

Tattam (Fryberg J, unreported, 12 May 1997) involved a series of drug counts, two of which were concerned with the supply of L.S.D. Again, by inference, the total amount did not exceed that specified in the Third Schedule. For the relevant offences a sentence of 2½ years' imprisonment suspended after six months with an operational period of 4 years and six months was imposed.

Counsel for the applicant also referred to two unreported single judge sentences relating to trafficking in or supplying heroin: Toy (Connolly J 5/2/1990) and Hissey (Cullinane J 29/10/1993), and the Court of Appeal decision in Clark (C.A. 393 of 1996, 29/11/1996) also relating to trafficking in heroin. The sentences in those cases were 2 years' imprisonment with a recommendation after 6 months, 3 years' imprisonment with a recommendation after 9 months, and 5 years' imprisonment with a recommendation after 18 months respectively.

Though not referred to in argument mention should be made of Chan (1993) 67 A. Crim. R. 545, a decision of the Court of Appeal (Pincus and McPherson JJA and Byrne J). He was charged with trafficking in L.S.D. and other Second Schedule drugs. There were additional counts of supplying drugs including L.S.D. The original sentences were 4½ years' imprisonment on the trafficking charge and 3 years' imprisonment on the supply counts. The Attorney-General appealed and the sentences were increased to 7 years' imprisonment on the trafficking charge and 5 years on the supply counts.

Another sentence of some relevance is that imposed on MN Groth (Williams J, unreported, 3 December 1996). He was a young man who pleaded guilty to a count of trafficking in dangerous drugs, namely L.S.D., methylamphetamine and amphetamine. Amongst the drugs the subject of the charge was a total of 6,787 micrograms of L.S.D. which was traded for $3,089. Significant quantities of amphetamine were also involved. The offender had one minor previous drug conviction. A sentence of imprisonment for 4 years with a recommendation for parole after 15 months was imposed on the trafficking charge.

Most of the cases referred to speak of L.S.D. as a pernicious drug the supply of which constitutes a serious offence. It is well known that small quantities of the hallucinogenic drug may create devastating consequences for a user.

In the light of all of those sentences I have come to the conclusion that the penalty imposed here was too high. A sentence of 4 years with a recommendation for parole after 12 months is more in keeping with the situation where some commercial gain was obtained by the offender from the transactions. Primarily because of the fact that the learned sentencing judge here was satisfied that the applicant received no financial benefit and acted in the role of intermediary I am of the view that the sentence is so high that this court should intervene.

In the circumstances a sentence of imprisonment for 3 years with a recommendation for parole after 9 months is appropriate.

In the circumstances I would grant the application, allow the appeal, set aside the sentence, and in lieu thereof order that the applicant be imprisoned for a period of 3 years and I would make a recommendation that she be eligible to apply for parole after serving 9 months of that sentence.