R v FRY

[2000] QCA 89

[R v FRY & Anor]
  [2000] QCA 89

COURT OF APPEAL

DAVIES JA
THOMAS JA
MOYNIHAN J

CA No 397 of 1999
CA No  17 of 2000

THE QUEEN

v.

JOSEPHINE ANN-MAREE FRY and
GEORGE WILLIAM FRY  Applicants

BRISBANE

..DATE 21/03/2000

JUDGMENT

DAVIES JA:  These are applications for leave to appeal against sentence.  The applicants Josephine Ann-Maree Fry and George William Fry are wife and husband respectively.

They both pleaded guilty in the Supreme Court on 5 November 1999 to offences, the most serious of which were in each case trafficking in a dangerous drug, namely methylamphetamine.  In fact, Josephine was convicted of trafficking and also of two counts of supply.  George was convicted of trafficking, of 13 counts of supply and of seven counts of possession. 

Josephine was sentenced to three years in respect of the trafficking and one year in respect of each of the counts of supply and George was sentenced to five years' imprisonment on the trafficking offence and one year's imprisonment in respect of each of the offences of supply and possession.

The offences occurred between 27 September 1998 and
2 February 1999.  At that time the female applicant was 22 and the male applicant was 27.  Neither had any substantial previous convictions.  They both had a conviction for possession of a pipe.  The male applicant also had an obviously minor conviction for stealing as a servant for which he had been fined.  So neither had previously been sent to gaol.

The detection of the offences arose out of a covert police operation as occurs in many of these cases and, of course, in offences of this kind the difficulty in detecting them is a relevant factor in the sentences that should be imposed, and I should also add that a major factor in these cases in imposing sentence is general deterrence.

The offenders supplied methylamphetamine to police officers on each of the occasions of supply charged.  The total weight of powder supplied was over 43 grams and the weight of pure methylamphetamine was 16.8 grams but, as will appear from what I am about to say, this was only a part and probably a small part of their total operation.

When interviewed by police after his arrest George Fry admitted trafficking, said he dealt in small amounts, but that he made a living from it.  He said he made $600 to $700 a week.  He kept a notebook account so it was run as a business and he said he was in it for the money.  He was, as appeared from his conversation with the undercover operatives, conversant with prices and availability of the drug, he was able to advise when a large shipment was imminent and, when he was unable to supply from his usual sources, he was able to supply drugs from other suppliers.

A serious aspect of this case was, as Justice Moynihan mentioned during the course of argument, the fact that he admitted and, indeed, claimed to be selling to truck drivers.  Their activities were not restricted to the Rockhampton area. 

Josephine Fry was travelling to Blackwater weekly to sell the drug.  She spoke of expanding the business into Longreach and she said that there was a healthy market in the west.  That may well have been, of course, among truck drivers. 

The seriousness of selling to truck drivers is, of course, the increased danger to other members of the community and to the truck drivers themselves resulting from driving trucks whilst under the influence of methylamphetamine.

Josephine Fry was a lesser offender than her husband. She was not always involved in the counts of supply and it was said on her behalf that she became involved in this offence because of her association with her husband.  That may or may not be so.  It was also said on their behalf that they were feeding their own addictions but they were plainly in it mainly for the money and they had no other sources of income.

They were married in 1994. They separated after a period.  They got back together again during the period when this business was carried on but by the time of sentence they were again separated.  They had two young children and the applicant, Josephine Fry, also had a four months child from another relationship.

It was also said on his behalf that his life fell apart after a serious accident and that it was then that he got involved in the offences for which he was convicted.

The learned sentencing Judge accepted that Josephine's involvement was less than George's.  He took into account the early pleas of guilty and their cooperation with the police in imposing the sentences which he did rather than imposing higher sentences and making recommendations for early release on parole.

The cooperation, however, I should mention did not extend to naming suppliers and, in the circumstances, it might be thought to be rather slight having regard to the taped conversations which plainly implicated both applicants in the offences for which they were convicted.

The submissions that were made by Mr Devereaux on behalf of each of the applicants were, in the main, based on an attempt to compare the seriousness of the offences in these cases with those in a number of other cases which
Mr Devereaux said were comparable. 

Mr Byrne QC for the respondent referred us to Whitehouse in which the cases upon which Mr Devereaux relies, apart from that of Liddicoat, are referred to in the judgment of this Court.  Mr Byrne submits that Whitehouse is perhaps the most comparable to the present although he submits, and I would accept, that none of the cases referred to us as comparable authorities are on all fours or even close to the facts in exact seriousness in this case.

Whitehouse, which is CA No 472 of 1997, a decision of this Court on 26 March 1998, was an offence in which the offender was a 37 year old woman.  She had a substantial history of drug offences but they were, in fact, marijuana offences.  She was addicted to methylamphetamine.  She pleaded guilty to trafficking in it. She started in her business buying from a friend but later bought from the manufacturer and she declined to identify either. 

Her involvement in trafficking was, as it was accepted, mainly to satisfy her own habit, unlike this case, but she did, in fact, make a substantial profit from it.  In her favour in that case was the fact that she had, by the time of sentence, overcome her addiction.  She was sentenced to five years' imprisonment with a recommendation for eligibility for parole after serving 21 months of that term and the majority of this Court thought that sentence was rather high but not so high as to warrant interference by this Court.

Only one of the cases referred to by Mr Devereaux for the applicants not referred to in that case was, as I said, Liddicoat, which is CA No 357 of 1996, a decision of this Court on 24 October 1996.  It is very difficult to arrive at any satisfactory conclusion from the judgment of this Court in that case because it was, it seems, based on concessions.  It was accepted that the sentence imposed on Liddicoat for five years' imprisonment for trafficking was a correct one but that the learned sentencing Judge had omitted to include in the sentence a recommendation which it was conceded should have been made.

So although Mr Devereaux has taken us more specifically to the facts in that case, I can't find it of any assistance in reaching a satisfactory conclusion here.  In my view the decision of this Court in Whitehouse and the cases referred to by this Court in Whitehouse show that the sentences which were imposed here were not outside the range of a sound discretionary judgment.  They were not, in my view, manifestly excessive and I would therefore refuse the application in each case.

THOMAS JA:  I agree.

MOYNIHAN J:  So do I.

DAVIES JA:  The applications are refused.

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