R v Pearson

[1999] QCA 248

99.248

COURT OF APPEAL
McMURDO P
McPHERSON JA

PINCUS JA

CA No 51 of 1999
THE QUEEN
v.

MARK EDWIN CASTLE PEARSON	Applicant
BRISBANE ..DATE 06/07/99 060799 T37/JW5 M/T COA 146/99 THE PRESIDENT: Mr Justice McPherson will deliver his reasons first.
McPHERSON JA: This is an application for leave to appeal against sentence following conviction on the applicant's plea of guilty in the Supreme Court at Brisbane on 12 February 1999.

The offences of which he was convicted, and the sentences imposed in respect of them, were charged in two indictments. One was a Commonwealth indictment charging a single count of aggravated importation of methylene dioxy methylamphetamine or MDMA (which I understand is commonly known as ecstasy) and one count of possession of lysergide, or LSD. In respect of the importation charge, the penalty imposed was imprisonment for nine years with a recommendation for parole after four and a half years. In respect of the possession charge, the sentence was imprisonment for 12 months.

In addition to that, there was a State indictment charging one count of trafficking in a dangerous drug, for which the penalty imposed was six years imprisonment, as well as a series of other counts - 11 in all - of supplying a dangerous drug, for which the penalty imposed was 12 months imprisonment.

All these sentences were to be served concurrently, so that the effective penalty was one of imprisonment for nine years, with a four and a half year non-parole

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period, or recommendation for release on parole at that
juncture. The Court, in addition, imposed a pecuniary
penalty of $15,700 in favour of the State of Queensland.

In this Court it is only the nine year sentence for the offence of importing a prohibited drug that is the subject of appeal. The applicant is not appealing against the sentences imposed for any of the State offences.

The circumstances of the offences, all of which could
undoubtedly have contributed to the head or principal
sentence, can be summarised as follows. So far as the
State indictment was concerned, the relevant dates were
that the offences were committed between 11 July 1997
and 6 June 1998. The applicant's drug business on the
Gold Coast was detected in a police undercover operation
in 1997. A covert police operative purchased LSD from
the applicant on 11 occasions between 29 July 1997 and
11 February 1998. The first four sales took place
through an intermediary named Kerr. Thereafter the
sales were made direct to the agent. It was the
applicant who approached the agent to effect a sale in
respect of four of the transactions (counts 6, 7, 8 and
9). He showed a capacity to supply more than the CPO
had asked for (count 5), and also a capacity to have
access to reasonably large quantities at short notice.
It should be added however that, as is common in these
cases, there was some dispute about the genuineness of
these assertions, which it was suggested might simply
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have been an example of boasting in order to increase
the other dealer's confidence in his ability to supply.
In the end, however, a summary of the total of the
transactions is that there were sales of 3,174 trips, as
they were called, of LSD, with a calculated weight of
.0579 grams; that is to say, approximately 14 to 15
times the schedule 3 amount specified for that drug.
The total value, I think I have mentioned, was $15,700,
or at least that was the price, or the amount of money
that changed hands for the drugs supplied.

In the course of dealings between the applicant and the CPO the focus of conversation turned to the importation of ecstasy. The applicant said in August 1997 that he could import ecstasy, but he needed money "upfront" because he had been left without payment in the past and wanted security in the sum of $20,000. He later said he could import from England and that, after the first lot arrived, it would be a regular thing. He also claimed to have access to cocaine. He subsequently modified the amount required to $22,000. Later on, but still in August 1997, he said he needed to import 10,000 tablets to cover expenses and make money. There were further conversations in similar vein or negotiations of that kind lasting until about March 1998.

On 11 April 1998 the applicant arrived in Brisbane
Airport on a flight from England via Japan. As he was
being processed through customs, an alert customs
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officer noticed that he had a set of golf clubs with him
that were unusual in that there was neither a putter nor
woods and that they had new technology grips whereas the
clubs themselves were old.

The applicant's comments about that matter aroused further suspicions, and investigation of what would be ordinarily the hollow parts of the clubs revealed a substantial quantity of ecstasy. There was an amount of 472.2 grams gross weight of powder from which 146.7 grams pure of ecstasy was recovered, that is to say nearly three times the trafficable quantity of MDMA under the Customs Act, which is specified as .5 of a gram. There were some intact pills, and by mathematical analysis it was established that the powder was the equivalent of 2,009 tablets. A calculation based on current prices is said to disclose that the ecstasy had a street value of between $70,000 and $100,000.

The applicant at first denied any knowledge of the
ecstasy. A raid on his residence that day uncovered a
further 14 LSD trips at his home, of which he
acknowledged ownership. He claimed he had been given 20
trips two years earlier as a payment for money owed. He
had given six of them to friends and was planning to
throw the others away. This may be a doubtfully
accurate explanation, given his trafficking in items
with the covert police operative. Nevertheless, it was
asserted on his behalf that his only customer was the
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CPO and that he had come into possession of a large
quantity of LSD as the result of a debt repayment some
years before. Having fallen on hard times, he then
succumbed to the temptation to sell it when the
opportunity presented itself in the form of the approach
by the CPO. It was also said that he undertook the
importation purely in the expectation that the CPO would
purchase the product imported.

There was material in the Crown brief which went some way to contradicting this assertion, but ultimately His Honour did not find it necessary to resolve the issue by any specific finding of fact, but considered he was able to sentence the applicant effectively without deciding that issue.

The personal circumstances of the applicant are that he was some 34 to 35 years old at the time of the offences, having been born in 1963. It is noteworthy that he had no prior criminal history of any kind. He appears to have had an excellent education, partly at a leading private school in Brisbane and partly at a public school in England, at which he achieved good academic results.

The grounds advanced in support of the application are
that the sentence is manifestly excessive and that his
Honour the sentencing judge did not have regard to the
applicant's early plea of guilty, or the mitigating
circumstances surrounding the events in relation to the
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undercover police operation, meaning that the applicant
asserted that he was in some way entrapped.
Factors tending to inflate the sentence are that, in
addition to the importation itself, he was guilty of
trafficking and that the course of the dealing in LSD
was protracted. As I have said, it took place between
July and June for a period of almost a year. The
purpose plainly was to profit in order to pay debts. He
was a dealer and he was not himself an addict.
It should also be added, of course, that he is subject
to an order for payment of the $15,700 penalty to the
State, that being, as I understand it, the amount of
money paid over in the course of these transactions by
the covert police operative.

A number of cases were cited to us both in the submissions of Mr Martin on behalf of the Crown on appeal, and by the applicant himself, who appeared in person before us. The three that I consider to be of most relevance in assisting to set the pattern or tariff of sentencing in this area are all decisions of single judges of this Court.

The first is a case of R v. Clough before Mr Justice
Byrne on 7 February 1997. It, like this, was a case in
which the prisoner had imported ecstasy but in an amount
of 438.8 grams representing some 4,500 tablets. It was
said to be worth something like $200,000 and the
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evidence suggests that the drug in that instance was of
higher grade or quality. Against that, the accused in
that case was himself a drug addict and owed money to
dealers, to repay which it was accepted he had engaged
in the act of importation from England to Australia.
He, however, had a prior criminal record, which was
described as "unsatisfactory". He was 36 years old; but
it should be noted that, on the evidence on which he was
sentenced, he was a courier only and not a dealer.

The sentence imposed, which followed upon a plea of guilty, was nine years imprisonment, with a non-parole period of four years.

There were two other cases not very long afterwards, which came before Justice White also in the Supreme Court at Brisbane. One was a matter of R v. Shepherd, which again involved importing ecstasy from England. In this instance, 457 grams pure, the equivalent of 3,700 tablets, as compared with the case now before us of 146.7 grams pure, which is the equivalent of some 2,000 tablets.

The sentence on this occasion was also nine years
imprisonment with a non-parole period of three years and
three months. The accused in that case was 26 years
old. He had some previous conviction or convictions in
the United Kingdom. He was a drug addict and, I
suppose, the fact, which was emphasised in the
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sentencing reasons, which helped him to some extent was
that he claimed that serious threats of death or
personal injury to himself and his family had been made
by the suppliers of drugs to persuade him to carry out
the courier importation into Australia.

The third case, R v. Lowndes, also heard by Justice White but on the following day, which was 19 June 1997, was another instance of importation of ecstasy, in this instance of 723 grams, equal to some 7,896 tablets, having a street value it was said of somewhere between $390,000 to perhaps as much as $900,000.

The accused in that instance was a heroin addict with a
criminal record described as consisting mainly of street
offences and driving offences. Again, he was a courier
only,
and the sentence imposed in his case was imprisonment
for 10 years with a non-parole period of three and a

half years.

What must be noticed in respect of each of those cases
is the differences between them and the matter now
before us. They tend to suggest that a sentence of
about nine or perhaps 10 years is a common penalty for a
single act of substantial importation of this particular
drug ecstasy. They all are sentences imposed after
guilty pleas, and to that extent resemble the present
case. A complaint made against his Honour's sentencing
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of the applicant before us now is that he gave
insufficient weight to the applicant's early plea of
guilty. His Honour recognised the significance of the
guilty plea but observed that it was an instance where
the applicant was discovered and apprehended in
circumstances that probably made it difficult for him to
do anything other than plead guilty.

It is true that in each of the cases from 1997 the amount of ecstasy imported was greater, and in one instance substantially larger, than that imported by the applicant. It should be noticed, however, that in all those cases the persons charged were couriers and not dealers, and that they were not also engaged in trafficking in another drug, as was the applicant here.

In at least two of those cases, the offender was younger and was under threat of physical violence because of debts they had incurred to dealers through their addiction. The parole conditions were slightly more favourable to them than to the applicant here; but it can fairly be said that the applicant's claim for favourable consideration for parole was diminished by his being a dealer in drugs.

In his favour again, there is the fact that he has no
previous convictions; but, against that, his education
and upbringing gave him better opportunities than those
considered in the three cases mentioned. The applicant
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is in my experience unusual in that he seems to have had
advantages in life which offenders of this sort seldom
possess. He is a panel beater by trade, and has
advantages that many others have not enjoyed.

All matters considered, I am in no real doubt that the head sentence was fixed at about the appropriate level.

Indeed, it could have been a little higher in view of

the fact that the applicant was engaging in trafficking
in another drug as well as having carried out this by no

means insubstantial importation of a schedule drug.

There might perhaps be a question whether the
recommendation for parole is perhaps a little
ungenerous; but the factors I have already referred to,
including the drug trading and the duration of it, taken
in conjunction with the substantial importation make
this a case where, even with the plea of guilty, it is
difficult to see how this Court could properly
interfere with the sentence imposed below.

With only that possible qualification, which is not such as to induce me to intervene, I consider that the application for leave to appeal against sentence should be refused.

THE PRESIDENT: I agree. Although a slightly earlier
recommendation for release on parole could have been
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given to take into account the applicant's early plea of
guilty and lack of prior convictions, it cannot be said
that the effective sentence on all these counts of nine
years' imprisonment with a non-parole period of four
years and six months is manifestly excessive.

I agree with what has been said by Mr Justice McPherson and I agree that the application for leave to appeal should be refused.

PINCUS JA: In my opinion, the head sentence is at a proper level. I share a degree of reservation about the recommendation in respect of parole but, in the circumstances which have been explained by Mr Justice McPherson, I agree with His Honour that the application should be dismissed.

THE PRESIDENT: The order is the application for leave to appeal is dismissed.

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