R v Lee

[2024] QCA 36

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lee [2024] QCA 36

PARTIES:

R
v
LEE, Mark Andrew
(applicant)

FILE NO/S:

CA No 204 of 2023
DC No 22 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 4 October 2023 (Allen KC DCJ)

DELIVERED ON:

19 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2024

JUDGES:

Morrison JA and Fraser AJA and Burns J

ORDER:

Application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 16 counts of supplying a dangerous drug – where the applicant was sentenced to an effective head term of 18 months imprisonment – where the applicant’s release on parole was fixed after he serves six months – where it was submitted that the sentencing judge erred by failing to state in open court that the applicant’s pleas of guilty were taken into account in determining the sentence to be imposed as required by s 13(3) of the Penalties and Sentences Act 1992 (Qld) – where it was submitted that the sentencing judge did not take into account the principle in s 9(2)(a)(i) of the Penalties and Sentences Act 1992 (Qld) that a sentence of imprisonment should only be imposed as a last resort – where it was submitted that the sentencing judge did not take into account the principle in s 9(2)(a)(ii) of the Penalties and Sentences Act 1992 (Qld) that a sentence allowing the offender to remain in the community is preferable – where it was submitted that resultingly there were errors in the exercise of the sentencing discretion – whether the sentencing judge erred in the exercise of the sentencing discretion – whether, otherwise, the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 13(3)

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
R v Anable[2005] QCA 208, cited
R v Clanfield[2022] QCA 147, cited
R v Dwyer[2008] QCA 117, followed
R v Jamieson[2016] QCA 11, cited
R v Kleimeyer[2018] QCA 9, cited
R v Neto[2016] QCA 217, cited
R v Safi[2015] QCA 13, followed
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited

COUNSEL:

C R Smith for the applicant
J T Aylward for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. MORRISON JA:  I agree with Burns J.

2. FRASER AJA:  I agree with Burns J.

3. BURNS J:  This is an application for leave to appeal against a sentence imposed in the District Court at Brisbane on 4 October 2023. After pleading guilty to 16 counts of supplying a dangerous drug, the applicant was sentenced to an effective head term of 18 months imprisonment with release on parole fixed after he has served six months.

4. Three grounds of appeal are proposed. First, that the learned sentencing judge erred by failing to state in open court that the applicant’s pleas of guilty were taken into account in determining the sentence to be imposed as required by s 13(3) of the Penalties and Sentences Act 1992 (Qld) (Ground 1). Second, that his Honour failed to have regard to the principles enshrined in s 9(2)(a) of the Act that a sentence of imprisonment should only be imposed as a last resort and that allowing the offender to stay in the community is preferable (Ground 2). Third, that requiring the applicant to serve six months in actual custody made the sentence manifestly excessive (Ground 3).

5. The offending in question took place over a two-and-a-half-month period beginning in early March 2021. During that time, the applicant offered to supply or supplied dangerous drugs to three different people on 16 separate occasions. In the case of counts 1 and 3, the applicant offered to supply cannabis to another man. Count 2 concerned the supply of a small quantity of methylamphetamine to an unknown person. The balance of the counts consisted of offers to supply methylamphetamine (counts 6, 7 and 12) or actual supplies of methylamphetamine (counts 5, 8-11 and 13-16) in street-level quantities to a woman. On two of those occasions, the applicant did so in the knowledge that the woman intended to on-supply the drugs. She was described in an agreed statement of facts as an associate of the applicant and the sentencing judge found the arrangement between the two to have been commercial in nature. His Honour sentenced the applicant to imprisonment for six months on counts 1 and 3 and to concurrent terms of 18 months for each of the remaining counts with parole release on 4 April 2024.

6. The applicant was aged 35 and 36 at the time of the offences and was 38 years old at the time of sentence. He had a largely irrelevant criminal history consisting of one prior conviction for an assault committed when he was 18. Otherwise, he had a good work record and was said to have been a recreational drug user who made no profit from the dealings which constituted the offences and had abstained since his arrest. The applicant spent no time in presentence custody. His plea of guilty was regarded as timely.

7. As to Ground 1, s 13(3) of the Act requires the judge when imposing sentence to state in open court that it took account of the guilty plea in determining the sentence imposed. Here it is true that the judge below did not do that, although his Honour did recite that the applicant pleaded guilty. However, a failure to comply with s 13(3) does not of itself justify interference with a sentence if it is evident that the guilty plea was in fact taken into account: R v Safi [2015] QCA 13, [16]. Properly considered, that is clearly what occurred in the court below. Relying on R v Jamieson [2016] QCA 11, R v Kleimeyer [2018] QCA 9 and R v Clanfield [2022] QCA 147, the Crown submitted that a head sentence of between 18 months and two-and-a-half years should be imposed with parole release at “one-third or less to acknowledge the plea of guilty”. Counsel for the applicant (who was not the same counsel who appeared in this Court) did not refer to any comparable decisions but submitted that a head sentence of 18 months was appropriate with immediate release on parole. After setting the head sentence in accordance with that submission but then fixing release at the one-third mark, the sentencing judge plainly reduced the custodial portion of the sentence to reflect the applicant’s guilty plea. Indeed, aside from the guilty plea and an absence of relevant history, there was little else in the way of mitigation to justify such a course.

8. Ground 2 has even less merit. Section 9(2)(a) of the Act requires a sentencing court to “have regard to the principles that: (i) a sentence of imprisonment should only be imposed as a last resort; and (ii), a sentence that allows the offender to stay in the community is preferable”. As to s 9(2)(a)(i), it was not submitted below that a sentence other than one of imprisonment should be imposed, and nor was any such submission advanced on behalf of the applicant in this Court. Given the seriousness of the offending, involving as it did multiple supplies by a mature man of a Schedule 1 drug pursuant to an arrangement that was found to have a commercial flavour, that is hardly surprising. As to s 9(2)(a)(ii), the whole focus of the competing submissions in the court below was whether the applicant should be allowed to stay in the community. Moreover, it is apparent from the sentencing remarks that the judge not only had regard to the principle set out in s 9(2)(a)(ii), but the prospect that the applicant might be allowed to remain in the community through immediate release on parole was expressly considered by his Honour before rejecting it for the reason that such a sentence would not provide an effective deterrent. His Honour continued:

   “Such a sentence would be wholly inadequate to meet the purposes of sentencing to punish in a way that is just in all the circumstances, to deter you and others from committing the same or similar offences, and to make it clear that the community denounces such conduct”.

9. To succeed on the last proposed ground, the applicant is required to show that the sentence was unreasonable or plainly unjust such that it might be inferred that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: R v Neto [2016] QCA 217, [28].

10. It will already be appreciated that no complaint was made on behalf of the applicant about the head sentence imposed below. Rather, it was submitted that the sentence was manifestly excessive because of the requirement that six months be served in actual custody before release on parole. Of course, accepting as I do that the applicant’s guilty plea and other factors in mitigation were taken into account by the sentencing judge by reducing the custodial portion of the sentence, the applicant’s argument is really to the effect that this reduction was so inadequate as to render the sentence manifestly excessive.

11. In an attempt to make good that argument, the applicant’s counsel set out at the hearing to compare the facts of this case with the facts in one or more of the comparable decisions relied on in the court below as well as R v Anable [2005] QCA 208, but there is scarcely ever any profit in doing so. As Keane JA observed in R v Dwyer [2008] QCA 117:

    “An approach which seeks to grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process”: at [37]. See also Pearce v The Queen (1998) 194 CLR 610, [46]; Markarian v The Queen (2005) 228 CLR 357, [27], [65]-[66].

12. To the point, it is not enough for the applicant to establish that the sentence imposed was even markedly different from sentences imposed in other cases: Wong v The Queen (2001) 207 CLR 584, [54]; Hili v The Queen (2010) 242 CLR 520, [58]. Intervention will only be warranted where the difference is such that it can be concluded there must have been some misapplication of principle, resulting in a sentence that is unreasonable or plainly unjust. That conclusion cannot be reached here. The sentence, structured in the way that it was, was within the range open in the exercise of a sound sentencing discretion.

13. There being no substance in any of the proposed grounds of appeal, I would refuse the application for leave to appeal.