R v Witherspoon

[2003] QCA 58

SUPREME COURT OF QUEENSLAND

CITATION:	R v Witherspoon [2003] QCA 58
PARTIES:	R v WITHERSPOON,Graham (applicant)
FILE NO/S:	CA No 366 of 2002 SC No 132 of 2002 SC No 459 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	19 February 2003
DELIVERED AT:	Brisbane
HEARING DATE:	19 February 2003
JUDGES:	McMurdo P, Mackenzie and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application for leave to appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AN INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OTHER OFFENCES – where the offences involved aggravated possession and supply of amphetamine, and possession of other dangerous drugs and property used on connection with drug offences – whether the sentence was manifestly excessive
COUNSEL:	The appellant appeared on his own behalf R G Martin for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondents

MACKENZIE J:  The applicant pleaded guilty to a large number of drug offences, the most serious of which was trafficking in amphetamines.  The other indictable offences consisted of two charges of supplying and two charges of aggravated possession of amphetamine-type drugs, eight of possession of dangerous drugs, consisting of heroin, cocaine, lysergide, THC, morphine and MDMA, and five counts of possession of property derived from or used in connection with drug offences.

There were also a number of summary offences, including possession of dangerous drugs, possession of restricted drugs, supplying a dangerous drug, four counts of possession of items such as scales and spoons used in connection with drugs, two of possession of drug-related money and possession of a weapon, a telescopic baton.  He pleaded guilty to all of those offences as well.

Conviction for the offences just mentioned placed him in breach of a two year suspended sentence order for stealing as a servant and fraud.

The period of trafficking extended over about 11 months.  The applicant came to the notice of police on several occasions during a covert operation and, although his premises and vehicle were searched on more than one occasion and property seized, he was not deterred, at least until very late, from continuing his activities.

The smorgasbord of drugs found was mainly in small quantities, but there were 9.7 grams of methylamphetamine and 2.2 grams of heroin.  The total amount of cash found in the applicant's possession during the various searches of his premises during the operation was over $75,000.  He admitted selling drugs but said that it was basically to a group of friends, although that account of events was doubted because of the amount of money involved.

The applicant was sentenced to seven years and nine months imprisonment with a recommendation for post prison community-based release after three years.  The seven years and nine months was calculated by reducing what otherwise would have been eight years' imprisonment to take into account a period spent in custody which may not otherwise have been taken into account.

The applicant was said to have commenced abuse of marijuana and alcohol at the age of 13 and progressed to amphetamines and LSD at 17 and heroin at 18. A comprehensive psychologist's report referred to a dysfunctional upbringing with feelings of isolation and rejection which led him to commence taking drugs to be part of the "in crowd".  However, it is apparent, that his family remains supportive of him according to references tendered at sentencing.

In her careful sentencing remarks the sentencing Judge referred to the aspects of the applicant's personality and to the fact that he had made significant efforts to rehabilitate himself. She noted the positive remarks from the psychologist as to his potential.  She took into account the plea of guilty with the consequence of saving the Court time and money.  She formed the view that because of the money found, and the valuable assets at his house and elsewhere, that the enterprise was commercial.
The Crown Prosecutor below submitted that the range was eight to 10 years and in this Court it was maintained that the sentence was appropriate.  Counsel for the applicant below submitted that the range was six to eight years with reasons being advanced why it should be t the lower end of that range.  The reasons were largely related to the matters that I have already mentioned.

The applicant had two previous appearances for drug offences, but only in the Magistrates Court.  His only other convictions were for the offences of stealing as a servant and fraud.  The suspended sentences, which became in breach by the present convictions, were ordered to be served concurrently with the sentences imposed for the drug offences.

The applicant, who appeared in person, asked for a lowering of his sentence and for a suspension rather than a parole recommendation.  It was pointed out to him that suspension was not an available sentencing option if the sentence remained above five years. 

Over the lunch adjournment, the schedule of sentencing produced by the Crown Prosecutor has been examined in some detail.  While there is some variability in sentencing levels due to the facts of particular cases, it is apparent from that exercise that the sentence of seven years and nine months' imprisonment cannot be held to be manifestly excessive for an offence of trafficking in the context in which it was committed.  A recommendation for early release after three years, in my view, adequately reflected the factors in the applicant's favour.  In my opinion the application for leave to appeal against sentence should be dismissed.

THE PRESIDENT:  I agree.  The sentence imposed of seven years and nine months was a global sentence, not only for these offences involving the trafficking and other drug offences, but also for the breach of the suspended sentence of two years' imprisonment which was activated. 

In those circumstances, it is plain that the sentence was not manifestly excessive and that the recommendation for parole adequately reflected the mitigating circumstances here.  It is commendable that the applicant has made good efforts at rehabilitation, but I would refuse the application for leave to appeal against sentence.

PHILIPPIDES J:  I also agree.

THE PRESIDENT:  That is the order of the Court.

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