R v McGlone

Case [2019] QCA 124

SUPREME COURT OF QUEENSLAND

CITATION:

R v McGlone [2019] QCA 124

PARTIES:

R
v
McGLONE, Ross
(applicant)

FILE NO/S:

CA No 88 of 2018
DC No 2370 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 12 April 2018 (Devereaux SC DCJ)

DELIVERED ON:

21 June 2019

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2019

JUDGES:

Fraser and Morrison JJA and Boddice J

ORDER:

Leave to appeal be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant was sentenced for one count of trafficking in Schedule 2 drugs – where the trafficking involved the commercial sale of synthetic cannabis as “tea” through retail premises – where the applicant was the manager of the business – where the applicant assisted the owner of the business by purchasing the machine used to package the drugs – where the applicant was involved in the placing of orders, the cutting of the dangerous drug with legal tea, its packaging, sorting and delivery and generally managing the business – where the applicant asserted that he received no financial gain from the trafficking business – where the owner of the business was sentenced to an effective head sentence of six years imprisonment, with a parole eligibility date set after serving 18 months – where other employees, who were sentenced on the basis that they received no financial gain in the trafficking business, received sentences of to two years imprisonment, fully suspended for an operational period of between two and three years – whether the sentencing judge erred by failing to give adequate weight to the absence of financial gain to the applicant from the offending – whether the sentencing judge erred by failing to apply the “parity principle” or the principle of equal justice to co-offenders

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where customers warned the applicant of the harmful effects of the “tea” – where the applicant and other employees wore masks to protect themselves from the harmful effects while packaging the “tea” – where two people died after using the drug, and others were admitted to hospital – where a sentence of five years imprisonment, suspended after serving 15 months for an operational period of five years was imposed – whether the sentence was manifestly excessive

R v Harris[2018] QCA 7, cited
R v Leathers (2014) 147 A Crim R 137; [2014] QCA 327, cited

the COUNSEL:

The applicant appeared on his own behalf
J A Geary for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I agree with the reasons for judgment of Boddice J and the order proposed by his Honour.

  2. MORRISON JA:  I have read the reasons of Boddice J…

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Details
AGLC
R v McGlone [2019] QCA 124
Case
[2019] QCA 124
Decision Date

CaseChat Overview and Summary

The case of R v McGlone involves an appeal against sentence by the applicant, who was convicted of trafficking in Schedule 2 drugs. The applicant was the operations manager for a business that commercially sold synthetic cannabis packaged as "tea" through five retail stores. He was involved in the purchasing of the packaging machine, placing orders, the mixing, packaging, sorting, and delivery of the drugs, and generally managing the business. The applicant claimed that he did not receive any financial gain from the trafficking business. The applicant's co-offender, the owner of the business, received an effective head sentence of six years imprisonment, while other employees received sentences of two years imprisonment, fully suspended for an operational period of between two and three years.

The primary legal issues in the case were whether the sentencing judge erred by failing to give adequate weight to the absence of financial gain to the applicant from the offending, whether the sentencing judge failed to apply the "parity principle" or the principle of equal justice to co-offenders, and whether the sentence was manifestly excessive. The court considered the overall criminality of the applicant, the role he played in the trafficking business, the harmful effects of the synthetic drugs, and the sentences imposed on co-offenders.

The court concluded that the sentencing judge did not fail to give adequate weight to the absence of financial gain to the applicant from the offending, and that the sentence imposed on the applicant did not offend the principles of parity or equal justice between co-offenders. The court also found that the sentence imposed was neither unreasonable nor plainly unjust, and was not manifestly excessive. The court ordered that leave to appeal be refused.

Orders

Orders of the court

Leave to appeal be refused.

Background

Background to the litigation

The grounds of appeal, should leave be granted, are:1.The sentencing judge erred by failing to give adequate weight to the absence of financial gain to the applicant from the offending;2.The sentencing judge erred by failing to apply the “parity principle” or the principle of equal justice to co-offenders;3.The sentence was manifestly excessive.Background The applicant was born on 4 January 1980. He was aged 34 to 35 years at the time of the offending and 38 at the date of sentence. He had a limited criminal history. It was accepted at sentence that that criminal history was largely irrelevant to the sentence. The trafficking period was a little over three months, between 3 October 2014 and 15 January 2015. The dangerous drug was synthetic cannabis. It was sold through five retail stores. The five retail stores were located in various parts of regional Queensland. Those stores were owned by the applicant’s co-offender, David Andre Jules Piccinato. The applicant was employed in the retail business. His position was as operations manager.Offence The applicant’s plea of guilty was entered on the basis of an agreed statement of facts. Those facts were summarised in the judgment of this court in an application for leave to appeal by Piccinato. It is convenient to repeat that summary with relevant adaptation:(a)The synthetic drugs were packaged and distributed in the retail stores under the guise of being “tea”. The “tea” was sold under various names. Discounts were given to customers who purchased in bulk. It was not accessible to customers unless there was a specific request.(b)Piccinato paid for the ingredients which arrived in 1 kg sealed bags. The ingredients consisted of green leafy material sprayed with synthetic chemicals. The “tea” was packaged at the applicant’s residence using a packaging machine purchased by Piccinato and the applicant.(c)The applicant and another employee wore masks, gloves and goggles whilst packaging the synthetic drug. Exposure to the product had caused the employee to have headaches and a bad skin rash. The applicant and the employee undertook packaging of products approximately twice per week. Between 5,000 and 8,000 bags would be packaged at a time.(d)Customers were told the “tea” would not show up in drug tests. It was a popular product with customers employed in the mining industry. The Mackay store had the most sales, selling between 50 and 300 packets per day. The least sales occurred at the Bundaberg store. It sold between 1 and 50 packets on most days.(e)At one point, Piccinato and the applicant assisted another dealer in New South Wales with packaging of synthetic cannabis through use of their machine.(f)During the trafficking period, Piccinato and the applicant became aware that the product was dangerous to consumers and had to be recalled from sale. They made the decision to repackage the product and attempted to water it down with legal tea. At no stage did they organise any medical or chemical testing of that product.(g)Complaints were made by customers to store employees about the strength of the drugs and of adverse reactions caused by the product. Customers reported being unable to walk or talk for several hours, vomiting extensively and of falling unconscious. One customer warned the products were too dangerous to sell.(h)Employees who advised of these complaints were told the products were legal and that it must be teas from other competitors that were causing adverse reactions. Employees who expressed concerns about selling the “tea” were told they would lose their jobs unless they sold it.(i)Police investigations confirmed customers had had adverse reactions from the product including dizziness, vomiting, rashes, loss of taste, bleeding in the stomach and seizures. A total of 32 people presenting to the Mackay Hospital Emergency Department between 1 December 2014 and 20 January 2015 alone in connection with having smoked the product.(j)One regular customer was located deceased at his home on 13 January 2015. The cause of death was recorded as the toxic effects of synthetic cannabinoids. That customer had been admitted to hospital in November 2014 and placed in an induced coma due to issues with his kidneys as a result of smoking the product.(k)Another customer was admitted to Mackay Hospital on 13 January 2015 after smoking the product. He was brain dead. On 14 January 2015, his life support was turned off. That customer obtained the product from the Mackay store on 13 January 2015. Again, the cause of death was the toxic effects of synthetic cannabinoids.(l)Forensic testing of bags of product located at the address of each of those deceased men determined that the bags were packaged from the packaging machine located in the applicant’s house.(m)Subsequent to those deaths, search warrants were executed at the retail stores and the applicant’s residence house. Various items were found at the applicant’s residence, including a large quantity of product. Subsequent to the execution of those search warrants, Piccinato and the applicant attempted to contact staff to ensure they did not say anything incriminating about the synthetic drugs. Piccinato and the applicant discussed getting rid of evidence on computers at Piccinato’s address.(n)During the sale of the product Piccinato and the applicant also took steps to avoid detection. A safe house in Rockhampton was used to stock reserves so that excess product was not kept in any store. The drugs were sold from under the counter and stored in locked cabinets in the back storerooms so that they were not visible to customers. Staff were told not to sell the products to people who asked for “synthetic drugs”. They were only to sell to known customers. When police had executed search warrants on other retail outlets in the area, staff were asked to remove the stock from the store and send it to a warehouse at Toowoomba.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

A consideration of the applicant’s overall criminality, amply supports a conclusion that the sentence imposed on the applicant fell within a sound exercise of the sentencing discretion, notwithstanding the significant mitigating factors in his favour. The imposition of that sentence did not involve a misapplication of principle, or an error in the exercise of the sentencing discretion.Conclusion The sentencing judge did not fail to give adequate weight to the fact that the applicant was a salaried employee. The sentence imposed on the applicant did not offend the principles of parity, or of equal justice between co-offenders. The sentence imposed was neither unreasonable nor plainly unjust. It was not manifestly excessive.Order I would order that leave to appeal be refused.

Ratio Decidendi

Legal Principle Established

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