R v PBP - [2024] QCA 210

[2024] QCA 210

COURT OF APPEAL

MULLINS P
BODDICE JA
BRADLEY J

CA No 66 of 2024
SC No 889 of 2023

THE KING

PBP Applicant

BRISBANE

THURSDAY, 7 NOVEMBER 2024

JUDGMENT

MULLINS P: I will ask Justice Boddice to deliver his reasons.
BODDICE JA: On 15 March 2024, the applicant pleaded guilty to two counts of trafficking in dangerous drugs, five counts of possessing a dangerous drugs in excess of 2 grams, two counts of unlawful supply of weapons, one count of receiving tainted property and three counts of possessing a dangerous drug.
On the same date, the applicant was sentenced to imprisonment for 10 years in respect of the second count of trafficking in dangerous drugs. He was sentenced to lesser, concurrent periods of imprisonment in respect of the other count of trafficking in dangerous drugs and the two counts of unlawful supply of weapons. The applicant was convicted and not further punished in respect of the remaining counts.
It was declared that the applicant’s conviction on the second count of trafficking in dangerous drugs, was a conviction of a serious violent offence. It was also declared that 848 days spent in pre-sentence custody be deemed time already served under the sentence.
The applicant seeks leave to appeal his sentence. Should leave be granted, two grounds are relied upon by the applicant.
First, that the sentencing judge erred in taking a global approach, reflecting the overall criminality of the applicant in the head sentence of 10 years, when the supply of weapon offences were not capable of being declared serious violent offences.
Second, the sentencing judge, whilst identifying that the applicant had been the victim of domestic abuse, appeared not to have taken that into account as a matter in mitigation, as required under s 9(10B) of the Penalties and Sentences Act 1992 (Qld) (the Act).
In my view, neither error is established and leave to appeal should be refused.
Background
The applicant was aged between 35 and 37 at the time of the commission of the offences. He was aged 40 at the time of sentence. He had a limited criminal history.
The applicant had a prejudicial childhood. He had an alcoholic and abusive father who visited extreme violence on the applicant’s mother, in his presence, including on one occasion stabbing the applicant’s mother. Police regularly attended the house. The father was jailed several times. He maintained a threatening influence, even on occasions of separation from the mother. He was violent towards the family pets.
The applicant became a father at the age of 18 years. He successfully completed an apprenticeship as a painter, before moving into the mining industry where he was a fly-in, fly-out worker for seven years.
The applicant had a past history of drug use, using cannabis whilst at school and into his early twenties. Thereafter, he was drug-free until introduced to methamphetamine in his early thirties. He developed a significant drug habit.
Sentencing remarks
The sentencing judge recorded that the applicant had entered timely pleas of guilty that had an objective utilitarian benefit, saving time, expense and cost. It was accepted that the guilty pleas were evidence of remorse and cooperation.
In the sentencing remarks, the sentencing judge recorded that the applicant had entered timely pleas of guilty, that had an objective utilitarian benefit saving time, expense and cost. It was accepted that the guilty pleas were evidence of remorse and cooperation.
The sentencing judge recorded that the applicant’s first trafficking count involved trafficking for over two years, supplying predominantly cocaine, but also methylamphetamine and steroids in a successful street level trafficking business. There was at least 34 occasions in which the applicant had supplied dangerous drugs, to an established customer base of at least 20 customers. A tick sheet on his phone indicated he had been paid in excess of $260,000 from those 20 customers. There was a degree of sophistication involved in his offending, including the use of encrypted communication applications and devices.
The sentencing judge recorded that when the applicant was intercepted by police, a search of his vehicle revealed a number of substances which formed the basis for the first two counts of possessing a dangerous drug in excess of 2 grams. There was a quantity of methylamphetamine weighing 12.642 grams and a quantity of pure cocaine weighing 20.72 grams. Those drugs formed part of the trafficking operation. The applicant was arrested and released on bail.
The applicant was arrested again, weeks later. A search of his vehicle revealed a large quantity of cash, as well as substances. The applicant was found to possess 5.326 grams of pure methylamphetamine and 3.242 grams of pure cocaine. Those substances represented two further counts of possession of dangerous drugs in excess of 2 grams. A search of the applicant’s home revealed possession of a glass vial containing 10 millilitres of a substance containing testosterone. That substance formed the first count of possessing a dangerous drug. The cash was proceeds from the drug trafficking business and the drugs were used in that trafficking business. The applicant was again released on bail.
When the applicant was arrested and searched almost two months later, he was found in possession of six tablets of alprazolam which formed the basis for the second count of possession of dangerous drugs.
The sentencing judge recorded that the second period of trafficking in dangerous drugs was committed months after his release on bail for all of those offences. The applicant trafficked for approximately three months, in methylamphetamine and cocaine at both a street and wholesale level, as well as couriering wholesale quantities of cannabis into Queensland by truck for an organised syndicate.
In respect of this trafficking business, the applicant was delivering and supplying dangerous drugs on a nearly daily basis throughout the entire period. Communications referred to collecting and dropping off drugs and meeting at pre-arranged locations. The applicant collected money owed from debts and conducted dead drops by leaving drugs at pre-arranged locations to be collected by customers at a later time. The applicant also assisted persons in collecting debts owed to them, as a result of their own individual trafficking.
The sentencing judge recorded that during the second period of trafficking, the primary drug of sale was methylamphetamine. The applicant supplied it on at least 80 occasions to 18 different customers. The applicant had an established customer base of at least six customers to whom he supplied cocaine, methylamphetamine and cannabis on a regular basis. Some of those customers were end users. Predominantly they were persons who had their own street level operations. Accordingly, they were being supplied in larger quantities so they could then on-sell the drugs as part of their drug supply operations.
The applicant’s involvement in the cannabis couriering, revealed significant activity by that syndicate, bringing in wholesale quantities of cannabis into Queensland, from South Australia. Whilst the applicant did not have the lead role in that syndicate, he was one of the main participants. He had been provided with an encrypted phone to give directions and arrange the supply of cannabis to customers. The syndicate used a number of safe houses to conceal the drugs trafficked during that period. There were five identified runs into Queensland from South Australia. A search conducted by police towards the latter part of that trafficking period, found concealed in the trailer of a truck, 175 vacuum sealed bags containing cannabis, weighing a total of 78.32 kilograms with an estimated street value of $480,000. On that basis, it was estimated that the syndicate couriered approximately 400 kilograms of cannabis over the five separate occasions, with an estimated street value of $2.4 million.
The sentencing judge recorded that the unlawful supply of weapons count, related to acts preparatory to supplying a weapon to another person. On the first occasion the weapon was a revolver. On the second occasion, it was a handgun. At the time of the applicant’s arrest at the conclusion of the second trafficking period, he was found to be in possession of 12.04 grams of methylamphetamine, a 9 millimetre handgun with a magazine and a round in the barrel and five ammunition rounds. A search of his premises also located a quantity of stolen property, which represented the receiving tainted property count and some tablets, which represented the remaining count of possessing a dangerous drug.
The sentencing judge found that the applicant’s trafficking over two separate periods, involved protracted offending which continued despite police intervention and detection. The initial period of trafficking was at street level and the applicant was the principal trafficker. It involved multiple drugs and was carried out over an extended period of two years and three months, although there was a hiatus for approximately 12 months during that period. The applicant was motivated by financial reward.
The second period of trafficking contained aspects of street level trafficking, as well as wholesale trafficking. Whilst it was for a far shorter period and primarily involved trafficking in methylamphetamine, it was an intense period of trafficking involving daily activities. It also involved the expansion and an escalation of the applicant’s offending, including interstate cannabis trafficking, as part of an organised criminal activity at a high level. Again, the applicant was motivated by the prospect of financial reward.
The sentencing judge found that the unlawful supply offences, were also serious and concerning because of the obvious dangers that are posed by weapons being disseminated in the community. Whilst the applicant’s offending involved acts preparatory to supply and not actual supply, they were still serious offences.
By way of mitigation, the sentencing judge recorded that there was an explanation for the applicant’s offending in the report of a psychologist, who opined that the applicant had relapsed into drug use after an intense and highly distressing argument with his father and difficulties associated with scarcity of work during COVID-19. During that period, the applicant had limited income and time on his hands. He developed a drug habit after being introduced to methamphetamine at a party. The applicant began to supply others as a means of maintaining that habit. That supply of drugs increased and led to the trafficking enterprise. The psychologist also noted that the applicant was conscious of safety aspects of his interactions with others and looked for ways to protect himself through possession of weapons.
The sentencing judge accepted that at the time of the applicant’s involvement in the offences, he was a user of dangerous drugs, but did not proceed on the basis that the applicant’s sole or even primary motivation to continue with the trafficking, was to obtain funds for his own use. There was an obvious and significant commercial activity which motivated the applicant, having regard to the nature, scale and scope of the business and the profits identified in that business.
The sentencing judge recorded that whilst the applicant had a prior criminal history, it was, for present purposes, irrelevant. The applicant had also spent a significant period in pre-sentence custody, during which he had been a model prisoner and a role model to others. He had also abstained from drug use whilst in custody.
After recording relevant sentencing principles, the sentencing judge found that general deterrence and denunciation were to be given significant weight. The sentencing judge accepted there were personal circumstances which must be taken into account, including the applicant’s prejudicial childhood, during which he was subjected to and witnessed domestic violence perpetrated by his father. There was the fact that the applicant was himself a father, having three daughters. The applicant also had a strong family relationship with continued support and had a good past employment history with prospects of employment in the future.
The sentencing judge specifically had regard to the contents of a letter provided by the applicant, noting that the applicant had acknowledged that he had let himself and his family down and that he wanted to continue to abstain from drug use and to work hard in the future. The sentencing judge recorded that the applicant had used his time in custody productively.
As to the contents of the psychologist’s report, the sentencing judge observed that the psychologist did not identify any current mental health condition or disorder, although the applicant had had symptoms consistent with a post-traumatic stress disorder, with origins of his being exposed to childhood abuse and domestic violence. The psychologist also recorded that the applicant had good insight into the triggers for his drug use and accompanying drug addiction. In the psychologist’s opinion, there were solid predictors for success in reintegration into society upon release, with good prospects of successful rehabilitation and a likelihood of re-offending significantly reduced in the future.
After referring to comparable authorities and the submissions of the Crown and defence, the sentencing judge found:
“… I do not consider that a sentence of nine to nine and a-half years for the count 8 offence would be within the proper sentencing discretion, to impose a sentence that would not only punish you in a way that is just and to an extent appropriate in all the circumstances, but also to uphold general deterrence and denunciation. Your criminality was extensive here. There was the aggravating features that I have referred to and it involved wholesale trafficking, not only in the cannabis, but also wholesale trafficking in respect of the schedule 1 drug methylamphetamine in the second period.
Ultimately, I will impose the following sentences. For the sentence – for the offence of trafficking, count 8 on the indictment, that is the most serious offence, I will impose a penalty of which I intend will reflect the global criminality involved and the totality of your conduct. I impose a sentence of 10 years imprisonment. In respect of the trafficking, count 1 on the indictment, a sentence of six years imprisonment. For counts 2, 3, 4, 5 and 6 and 11, 12 and 13, you are convicted and not further punished. In respect of the unlawful supply of weapons charges, counts 9 and 10, for each of those I impose a sentence of 18 months imprisonment. All of those sentences of imprisonment are to be served concurrently, that is, at the same time. And I do make the mandatory declaration that you are convicted of a serious violent offence in respect of count 8 trafficking offence.”[1]
[1]AB 47/8–28.
After concluding those remarks, the sentencing judge also imposed a sentence of conviction and not further punish in respect of count 7.
Consideration
Ground 1
Turning to the grounds of appeal. In respect of ground 1, the applicant submits that the sentencing judge erred in taking a global approach, reflecting the overall criminality of the applicant in the head sentence of 10 years on count 8, as the supply of weapons offences were not capable of being declared serious violent offences. It is submitted that this error was highlighted in an exchange between the sentencing judge and counsel for the prosecution in the course of the sentencing submissions, where his Honour had said, “if I was to impose a global penalty, that includes the weapons offence to arrive at 10 years”.
Care must be taken in having regard to exchanges that occur in the course of sentencing submissions. Such exchanges merely reflect an interchange between the judge and counsel. They should not be used as a means of interpreting the sentencing remarks. This is particularly so in the present case.
The exchange relied upon occurred in circumstances when the Crown was submitting that a sentence of 10 years’ imprisonment, was a sentence to reflect the global criminality “across all counts on the indictment”. The sentencing judge was querying whether the imposition of that global penalty included the weapons offences, to which the Crown responded, “That is the Crown’s submission, your Honour. It’s not suggested that any cumulative term would be imposed. Your Honour could fix terms for the supply of weapons that run concurrently with the global.”
Having regard to the context of the exchange during submissions, there is no basis for this Court to conclude that a sentence of less than 10 years’ imprisonment would have been imposed, absent taking into account the two supply of weapons counts.
This conclusion is also supported by the sentencing judge’s express reference in the sentencing remarks, to the fact that a sentence of nine to nine and a-half years imprisonment for the second count of trafficking would not be within the proper sentencing discretion.
Ground 2
As to ground 2, the applicant submits there was a second specific error, in that whilst the sentencing judge identified that the applicant had been a victim of domestic violence, the sentencing judge appeared not to take that into account as a matter of mitigation, as required under s 9(10B) of the Act.
A consideration of the sentencing remarks does not support that submission. The sentencing judge specifically took into account, in considering the applicant’s personal circumstances, that the applicant had been the victim of domestic abuse. Further, the sentencing judge accepted that the applicant had fallen back into drug use after an argument with his father.
Against that background, there is no basis to conclude that there was a failure to treat the fact that the applicant had been a victim of domestic violence, as a mitigating factor. It was but one factor taken into account in the instructive synthesis in arriving at a just sentence.
Order
I would order that the application for leave to appeal be refused.
MULLINS P: I agree.
BRADLEY J: I agree.
MULLINS P: The order of the court is application for leave to appeal refused.