R v Watts

[2004] QCA 36

SUPREME COURT OF QUEENSLAND

CITATION:

R v Watts [2004] QCA 36

PARTIES:

R
v
WATTS, Leon Joseph
(applicant/appellant)

FILE NO/S:

CA No 390 of 2003
SC No 15 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Toowoomba

DELIVERED EX TEMPORE ON:

19 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

19 February 2004

JUDGES:

McPherson and Davies JJA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Leave to appeal granted
2. Appeal allowed
3. Sentence of three years substituted in lieu of the sentence of three and a half years imposed in the trial division

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OTHER OFFENCES – where early plea of guilty – where allowance of one eighth of sentence for mitigating factors – whether adequate allowance – whether sentence manifestly excessive

Cameron v R (2002) 209 CLR 339

COUNSEL:

A W Moynihan for the applicant
R G Martin for the respondent

SOLICITORS:

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

MACKENZIE J:  This is an application for leave to appeal against a sentence of three and a half years imposed for five counts of supplying methylamphetamine.  On four occasions the applicant supplied the drug to a covert police operative.  Three of the amounts supplied were sold as half ounce packages.  One, the introductory transaction involved less.
On the fifth occasion money had been handed to the applicant for the purchase of a further quantity of the drug but the transaction was interrupted by police intervention.  Sums amounting to $11,150 were paid to the applicant although the last payment of $2,400 was recovered during the police intervention.

On each occasion the covert police officer contacted the applicant, they met, the applicant then went somewhere to get the drug, returned with it and gave it to the operative.  At the time of the transactions the applicant believed that the operative was a person who would sell the drug to others.  He was sentenced on the basis that the transactions were commercial in nature.  At the time of the offences the applicant was 29 or 30 years of age.  He had a criminal history which the learned sentencing Judge described as not serious but certainly substantial.  All offences were dealt with in the Magistrates Court. 
There were four drug offences; no conviction was recorded in the first three and a fine was imposed for the last which was dealt with in September 2002.

There were also two weapons offences for one of which and for receiving dealt with on the same day, the applicant was placed on probation.  The probation was later breached apparently in a trivial way since the Magistrate admonished and discharged the applicant.  The present offences were, however, committed not long after the period of probation completed.  It was therefore not inaccurate, and certainly not put in issue by the applicant's counsel, that it was, to describe the criminal history in the way the learned sentencing Judge did.

The applicant was an amphetamine user at the time of the present offences. The reason given for his involvement with the covert police operative was that he was under pressure to repay a debt incurred by buying drugs on credit.  The learned sentencing Judge was told that he had only received $600 for his own use from the transactions.  There was also evidence of harassment and threats in SMS messages sent by someone after the applicant's arrest apparently because the sender believed that the applicant had informed on him.

The learned sentencing Judge sentenced the applicant to three and a half years' imprisonment on the basis that a sentence of four years was the appropriate level of sentences for these offences but reduced the sentence to the level actually imposed to allow for factors in the applicant's favour including his cooperation with the authorities and his early plea of guilty.  It was conceded by the Crown Prosecutor below that the plea was a timely plea and that there had been a full hand-up committal without cross-examination.

Counsel for the applicant conceded before us that the notional sentence of four years was within the proper range although, he submitted, at the top of it. He also conceded that the methodology of reducing the notional sentence to reflect matters of mitigation was consistent with the well-established principle. However, he submitted that a reduction of only six months made inadequate allowance for mitigating factors especially the early plea of guilty. He submitted, in reliance on Cameron v. R (2002) 209 CLR 339 that willingness to facilitate the course of justice by pleading guilty at the earliest opportunity is deserving of real and appreciable discount.

As the majority judgment of Gaudron, Gummow and Callinan JJ points out, the rationale of the principle under which an offender may be entitled to a reduced sentence for a plea of guilty requires that in the individual case consideration be given to the extent to which the plea is indicative of remorse, acceptance of responsibility and the willingness to facilitate the course of justice.  In performing this exercise the question whether the plea of guilty was entered at the first reasonable opportunity is significant. 

It was conceded by the applicant's counsel that there is no fixed formula for determining the level of discount.  However, in the present case, reduction of the notional term of imprisonment by six months represents a reduction of one-eighth to reflect matters required to be taken into account in the applicant's favour.

A starting point of four years for offences of the level of seriousness of these offences was at the higher end of the scale even though the drug is now a schedule 1 drug. 

Allowance of only one-eighth of the sentence for matters in the applicant's favour in my view renders the overall sentence manifestly excessive given the need to recognise adequately the elements in this case of the early plea and the cooperation with justice.

A greater allowance was necessary.  In my view, the contention of the applicant's counsel that a sentence of three years would be appropriate is well founded.  I would therefore grant leave to appeal, allow the appeal and substitute a sentence of three years in lieu of the sentence of three and a half years imposed in the trial division.

McPHERSON JA:  I agree.

DAVIES JA:  I would also agree.

McPHERSON JA:  The application and appeal are allowed to the extent of reducing the sentence from three and a half to three years imprisonment.