R v Clanfield

[2022] QCA 147

[2022] QCA 147

COURT OF APPEAL

McMURDO JA
DALTON JA
FLANAGAN JA

CA No 98 of 2022
DC No 30 of 2022
DC No 110 of 2022

R

v

CLANFIELD, Jordan Gregory James  Applicant

BRISBANE

FRIDAY, 12 AUGUST 2022

JUDGMENT

FLANAGAN JA:  By his pleas of guilty on 28 April 2022, the applicant was convicted of 10 counts of supplying a dangerous drug, one of possessing a dangerous drug, one of possessing anything used in connection with the commission of the crime of supplying dangerous drugs and three summary charges.  These offences were committed in 2020 and early 2021.  At the time, the applicant was subject to three suspended sentences imposed by the Rockhampton Magistrates Court of three, five and nine months, each with an operational period of two years.  On 31 January 2020, this operational period was extended by the Rockhampton Magistrates Court by one month.

Nine of the supply charges (counts 1 to 9) concerned the commercial supply of methylamphetamine and an unknown dangerous drug.  Count 10 related to acts preparatory for the supply of cannabis.  As to the possession count (count 11) police conducted a search of the applicant’s address on 2 February 2021 and located a number of clip seal bags containing a total of 0.023 grams of methylamphetamine.  Police also located a mobile phone (count 12) which revealed the supplies constituting counts 1 to 9.  The three summary charges relate to drug paraphernalia located by police in the search conducted on 2 February 2021 and an earlier search conducted on 21 November 2019.

The learned sentencing judge imposed the following sentence:

Counts 1 – 9:   Two and a half years imprisonment on each count.

Count 10:       Six months imprisonment.

Count 11:       Six months imprisonment.

Count 12:       Convicted and not further punished.

For each of the three summary charges:        One month imprisonment.

In relation to the three suspended sentences imposed on 1 February 2019 by the Rockhampton Magistrates Court, his Honour found that by the applicant’s pleas of guilty the breach of those suspended sentences was established. Each of the suspended sentences of three, five and nine months was activated in full. His Honour ordered that all sentences including the activated suspended sentences be served concurrently. The effective head sentence was therefore two and a half years. His Honour declared 74 days spent in pre-sentence custody between 2 February 2021 and 16 April 2021 to be deemed time already served under the sentence pursuant to section 159A of the Penalties and Sentences Act 1992 (Qld). His Honour set the applicant’s parole release date at less than one third of the head sentence of two and a half years fixing the date at 29 August 2022.

The applicant, who was self-represented before this Court but was represented by counsel before the learned sentencing judge, seeks leave to appeal against his sentence on the ground that the sentence imposed is manifestly excessive in all the circumstances.

For the following reasons, the sentence imposed cannot be considered manifestly excessive and the application for leave should be dismissed.

The sentence imposed, when considered in light of his Honour making the activation of the suspended sentences concurrent with the head sentence of two and a half years and fixing a parole date at less than the one third mark, cannot be considered manifestly excessive.  The applicant was 32 years of age at the time of the offending and was 34 at the time of sentence.  His Honour expressly noted that the penalty to be imposed was substantially reduced by the applicant’s plea of guilty which revealed full cooperation and assistance with the criminal justice system.  The applicant has a relevant Queensland and New South Wales criminal history.

While the entries in his Queensland criminal history from 2009 to 2012 only concern assault related charges, the applicant was dealt with in the Rockhampton Supreme Court on 4 October 2018 for being in possession of seven grams of substance which contained four and a-half grams of pure methylamphetamine for personal use.  As to the three suspended sentences imposed by the Rockhampton Magistrates Court on 1 February 2019, the relevant offences concerned possession of dangerous drugs and utensils or pipes that had been used as well a weapons offence.

As to the applicant’s New South Wales criminal history, while he was on bail for the offences dealt with in the Rockhampton Supreme Court, he committed offences in New South Wales of supplying prohibited drugs for which he was sentenced to two years and six months imprisonment with a non-parole period of 18 months.  As to the offending for which the applicant was sentenced, it involved the supply of methylamphetamine to at least seven other persons over a three month period in amounts consistent with personal use for commercial reward.  This offending occurred in circumstances where the applicant was subject to three suspended sentences.

In the applicant’s favour, the learned sentencing judge accepted that the applicant was acting as an agent for another to source and supply the drugs and that any profit he gained was used to fund his own drug addiction.  The applicant had also taken steps to rehabilitate himself.  He was released on bail on 16 April 2021 and had commenced his own painting business and had 26 attendances with a drug counsellor.  His Honour accepted that the applicant had taken extensive steps towards rehabilitation.  Since his incarceration after he was sentenced, the applicant has been unable to take rehabilitation courses which were otherwise available to him through his drug counsellor while he was on bail.  The difficulty in accessing drug courses in prison is a matter that has evidenced itself after the sentencing proceedings were concluded.

The applicant, by reference to a single judge decision of Boddice J on 18 May 2016 in R v Nuttall, submits that his sentence is manifestly excessive.  Nuttall was however a person much younger, being 21 at the time of the offending and 23 at the time of sentence.  He had a criminal history which Boddice J described as being of “a relatively limited nature”.  Even if the circumstances of R v Nuttall could not be distinguished from those of the applicant, appealable error is not demonstrated by reference to comparatives, let alone to a comparative of a single judge.  As observed by Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584 at [58]:

“… appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases.  Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.”

It follows that the application for leave to appeal against sentence should be dismissed.

McMURDO JA:  I agree.

DALTON JA:  I agree.

McMURDO JA:  The order is that the application for leave to appeal against sentence is refused.