R v Pieplow

[2001] QCA 203

[2001] QCA 203

COURT OF APPEAL

McMURDO P
THOMAS JA
HELMAN J

CA No 37 of 2001

THE QUEEN

v.

PHILIP PIEPLOW  Applicant

BRISBANE

..DATE 29/05/2001

JUDGMENT

HELMAN J: On 31 January this year the applicant pleaded guilty to, and was convicted on, three counts of offences against the Drugs Misuse Act 1986. The first charge was that between 20 April 2000 and 26 May 2000 the applicant carried on the business of unlawfully trafficking in the dangerous drugs methylamphetamine and cannabis sativa; the
second charge that on 25 May 2000 he possessed a sum of money, $1,010, that he had obtained from trafficking in dangerous drugs knowing the money to have been obtained from the trafficking; and the third charge that on 25 May 2000 he unlawfully had possession of the dangerous drug heroin.
The first two offences were committed at New Farm and elsewhere in Queensland, and the third at New Farm.

Her Honour the learned sentencing judge sentenced the applicant to imprisonment for two and a half years on each count, to be served concurrently, and ordered that the terms of imprisonment be suspended after the applicant had served nine months.  Her Honour ordered that the operational period should be four years.  The applicant had served four days in pre-sentence custody which was declared to be time served under the sentences.  The applicant seeks leave to appeal against the sentences on the ground that they were in the circumstances manifestly excessive.  It is not suggested on behalf of the applicant that sentences of imprisonment should not have been imposed, but it is argued that the sentences imposed were excessive.

I shall now relate the facts which gave rise to the charging of the applicant. 

At approximately 3.30 p.m. on 25 May 2000, in response to information provided to them, detectives kept a man under surveillance in James Street, New Farm.  He was making a telephone call from a public telephone booth.  About fifteen minutes later a car drove up.  The applicant was its driver and sole occupant.  The first man approached the applicant and sat in the front passenger seat of the car.  Approximately one minute later the police officers approached the car, identified themselves, and asked the occupants to leave it. 

As the applicant opened the door of the car the police officers observed a piece of aluminium foil on the handle of the driver's door.  The police officers seized the foil, which the applicant said was heroin for his personal use, and searched the applicant.  The police officers found $460 in the applicant's wallet, and several clipseal bags containing white powder which the applicant identified as methylamphetamine.  The applicant then produced a $50 note and another clipseal bag containing white powder, also methylamphetamine, from a pocket in his trousers.  The police officers searched the car and found a quantity of green leafy matter, two clipseal bags in the glovebox and some in the ashtray, which the accused identified as cannabis.  The applicant told the police officers that he was in the process of selling a clipseal bag of methylamphetamine to the other man for $50.  He also said that the cash in his wallet was the proceeds of the sale of illegal drugs. 

An analysis showed that:  five clipseal bags contained methylamphetamine, the total quantity being 0.666 grams; the foil contained heroin, the quantity being 0.058 grams; and two clipseal bags contained, and some loose green leafy matter was, cannabis sativa, the total quantity of which was 14.9 grams.

The applicant was interviewed by the police officers on
25 May 2000.  He told them that over the previous five weeks he had used the car, which belonged to his mother, to drive to various places around Brisbane in order to buy and sell illegal drugs.  He said that he purchased methylamphetamine and cannabis sativa from two sources.  He then packaged the drugs into smaller quantities, and sold them.  The applicant would contact his regular suppliers once a week for his drug purchases and the transactions would occur usually at a certain store in Brunswick Street, New Farm.  The applicant would use some cannabis for himself and sell the rest of it. All of the amphetamine he purchased was for further sale.  The applicant said that he sold the cannabis to several people, mainly friends who would call him on his mobile telephone.  He purchased the cannabis in quantities of one or two ounces, then divided each ounce into four quarter- ounce bags which he sold for $100 each.  From that he made a few hundred dollars per week, as well as using a portion of the cannabis himself. The applicant said that he had purchased an ounce of green leafy matter on 24 May 2000 for $200 and had sold $150 worth of quarter-ounce bags - i.e. one and a half bags - on the morning of 25 May 2000.  The leftover green leafy matter was what had been located loose in the ashtray.  The applicant also purchased two grams of methylamphetamine from a regular supplier on 24 May 2000 for $400, which he then cut with fine ground sugar and repackaged into smaller clipseal bags for sale at the price of $100 each.  The applicant stated he had been selling to the other person intercepted by the police for approximately five weeks.  The applicant said that the man called him on his mobile telephone two or three times a week to meet him at James Street, New Farm in order to purchase a $50 bag of methylamphetamine each time.  This had occurred ten times in May 2000.  The applicant further said that this was the standard practice for other customers with amphetamine sales, that came to about $300 a week.

The applicant admitted he had approximately $500 in a Commonwealth Bank account from the proceeds of selling illegal drugs in addition to the $510 the police officers had found in his possession on 25 May 2000.  The applicant said the foil of powder was heroin given to him by the supplier of the amphetamine, and he intended to consume that himself.  The heroin was not for sale, and that was why he kept it separate and not in any packaging for sale.  He said he was not injecting drugs and smoked the cannabis and the heroin.

While the police officers were carrying out their inquiries at the police station, the applicant's mobile telephone rang approximately ten times.  When answered the callers gave only a first name and asked for "Phil".  The callers said they were after various weights of "pot", such as "quarter weight", a common term used for a quarter-ounce.  The callers mentioned places where they could meet "Phil" so that they could buy the drugs.  The applicant was subsequently arrested and charged at the Brisbane watch-house.

The applicant had a criminal history before he was brought before her Honour. On 8 March 1993 he was convicted of receiving stolen property in the Brisbane Magistrates Court and was ordered to undergo probation for twelve months, to perform community service for forty hours, and to make restitution of $100. On 20 July 1999 and 5 August 1999, he was before the Beenleigh Magistrates Court on charges concerning dangerous drugs. On the first occasion it was on a charge of possessing cannabis sativa. No conviction was recorded and he was fined $300. There was also on that occasion another charge against him, brought under the Weapons Act 1990, for which no conviction was recorded but he was fined $150. On 5 August 1999 he was again before the Court, this time on a charge of possessing cannabis sativa and on a charge of possessing a pipe contrary to the Drugs Misuse Act. On 26 May 2000, he was dealt with in the Brisbane Magistrates Court for breach of a bail undertaking. He was convicted and fined $200 on that occasion.

The applicant was born on 9 August 1976 in Germany of an Australian mother and a German father.  His father was killed in a motor vehicle accident in 1977.  His mother, who did not remarry, raised him in Australia, supporting him as well as she could from her earnings.  She sent him to a boarding school in Queensland where he progressed quite well, but could not continue beyond Grade 11 because of the
failure of his mother's business.  After that misfortune, the applicant became unsettled, his academic results were poor, and he began to smoke marijuana.  His mother did not discourage him in that, although she did not urge him to do so.  She smoked marijuana with him on occasions.

The charges of offences concerning dangerous drugs for which the applicant was sentenced in 1999 arose from police raids on the home of an uncle with whom the applicant was then staying. The uncle was also charged.  The drug in question was, as I have related, cannabis sativa.

The applicant had difficulty finding employment after he left school, but worked at various times as a dishwasher, bartender, labourer, cleaner, and installer of car stereos.  He first tried cannabis when he was in his last year at school.  He later became dependent on it and began using methylamphetamine.  He did not use intravenous drugs, and heroin made him ill. 

There was before her Honour a report dated 30 January 2001 by Dr Ian Curtis, consultant psychiatrist.  In paragraphs 14.3 to 14.5 of the report, Dr Curtis recorded certain conclusions he had reached about the applicant:

"14.3Here was a man whose migrant mother had smoked cannabis with him as a sole parent.  Pieplow himself

was subject to early parental loss and the lack of a balancing male parental role model developmentally.

14.4In more recent years he had clearly been under the influence, not only of the mother's dyssocial personal abuse of cannabis, but through exposure to his maternal uncle's proven involvement with cannabis matters.

14.5In these circumstances, Pieplow may have potentially good character attributes for socialisation and rehabilitation.  Pieplow has, according to his history, tried to continue to work within general society and, in that sense, to pay his own way.  His crime may have involved cheating in relatively minor illicit drug sales over a recent period of time prior to his early phase apprehension by police."

Another assessment of the applicant's relationship with his family was put before her Honour in a letter dated
29 January 2001 signed by Mrs Kerryn Lindsay.  Mrs Lindsay recorded that she was thirty-eight years old, that she had met the applicant in 1987 when she was introduced to his mother Janice, that the applicant had always been "an open and honest person with a good sense of humour", and that his mother provided a stable home life and reared him to be "a fine young man with good values".  He and his mother had "always had very open communications with each other".

Mrs Lindsay continued: 

"While Janice has done is (sic) tough raising a son as a widower (sic), she and Phillip have always had a very close relationship, fully supported by their close extended family.  This whole family is sick with worry regarding Phillip's court case. 

Phillip possesses the potential to develop into a fully matured, well-adjusted man.  He has been raised in a home surrounded by people with good morals and values.  He has a very supportive mum, and close family and friends behind him."

In sentencing the applicant, her Honour referred to aspects of the case relevant to penalty:  the applicant's "relatively minor" criminal history, his prospect of employment, his family's support, his "relative youth", and the fact that he had some history of drug addiction.  Her Honour took into account his pleas of guilty and his "full and extensive" disclosure of his wrongdoing to the police leading to his being dealt with for offences which would not otherwise have been revealed.  Her Honour added that she was particularly mindful of "the great extent of cooperation" the applicant gave the investigating police officers.

An examination of previous cases of trafficking in amphetamines reveals, not surprisingly, that sentences of imprisonment have been considered to be appropriate.  A table of such cases placed before us by the Crown showed sentences that have varied in length from imprisonment for three years to imprisonment for fifteen years, depending on the age and circumstances of the offender.  Somewhat more lenient sentences had been imposed in three cases mentioned to her Honour, but none was lower than imprisonment for
eighteen months. 

In this case, the applicant was a young man with some criminal history which included drug offences which had been dealt with leniently.  Her Honour's sentence was at the lower end of the scale, reflecting the mitigating factors I have referred to.  The head sentence was, I think, lenient - and justifiably so - principally because of the applicant's youth and his cooperation with the investigating police officers.  It was rendered more so by the order that it be suspended after nine months.  Unless some specific error could be demonstrated, I should not be persuaded that there is any reason to interfere with the sentence.

On behalf of the applicant, it was argued that there were three such errors.  It was said that her Honour failed:  to consider, or adequately consider, the applicant's prospects of rehabilitation; to consider, or accurately to consider, the applicant's family situation; and to give weight, or adequately to give weight, to the significance of the applicant's cooperation.

While it is true, as has been pointed out on behalf of the applicant, that her Honour did not refer explicitly to the rehabilitation of the applicant in her sentencing remarks, it cannot be overlooked that the structure of the sentence, itself with suspension after a brief period of actual custody, is clearly designed to encourage the applicant's rehabilitation.  He is old enough, and, it appears, mature enough, to understand that and to take advantage of the opportunity given to him by her Honour's leniency.

The applicant's family and his cooperation were explicitly referred to by her Honour.  As to the former, some criticism was levelled on behalf of the applicant at this statement made by her Honour in the course of her sentencing remarks:  "I also note that the references refer to your family situation and that you have a supportive family situation."  It was submitted that:  "Whilst it is true that references were tendered which spoke well of the Applicant's mother, the opinions expressed in those references do not survive even a cursory glance of the report prepared by Dr Curtis.  The Applicant's own mother has admitted to the role that she undoubtedly played in creating the Applicant's cannabis dependency.  It is impossible," so the argument continues, "unless giving voice to some sense of bitter irony, to describe the applicant's family situation as 'supportive'."

Bearing in mind the contents of Mrs Lindsay's letter, I am unable to accept the conclusion contended for on behalf of the applicant.  Clearly, an assessment of the attitude of the applicant's family is a matter for judgment and no doubt there were some obvious deficiencies in the applicant's mother's behaviour and guidance to the applicant.  But looking at the whole history, I conclude that her Honour's conclusion was one clearly open to her, and indeed an accurate overall assessment of his family situation.  There can be no doubt that her Honour gave great weight to the applicant's cooperation with the investigating police officers in arriving at her sentences, and so I conclude that none of the allegations of error has been demonstrated to have merit.

In the result, in my view, the application should be refused.

THE PRESIDENT:  I agree.

THOMAS JA:  I agree.  I am not satisfied that her Honour overlooked the desirability of rehabilitation or that the sentence necessarily operates against it.  As Mr Justice Helman has observed, the structure of the sentence suggests that it was sufficiently in view.

The sentence is quite moderate for a person who is spreading methylamphetamine through the community.  The danger of such use is now being increasingly recognised by judges.  The danger is not only to those who take it but to citizens who suffer from the criminal aggressions that it releases.  Awareness of this is bound to induce sentencing judges to increase sentences for trafficking in methylamphetamine.  Earlier cases will not necessarily remain an appropriate benchmark.

But for the special personal circumstances of this offender and his unusually candid disclosures to the police, a substantially higher sentence would have been warranted. 

I agree that the application should be refused.

THE PRESIDENT:  The order is the application for leave to appeal against sentence is refused. 
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