The King v Bradley, Jason Patrick

[2023] QCA 143

[2023] QCA 143

COURT OF APPEAL

BOND JA
DALTON JA
FLANAGAN JA

CA No 101 of 2022
SC No 832 of 2020
SC No 1199 of 2020
SC No 1663 of 2021

THE KING

v

BRADLEY, Jason Patrick  Applicant

BRISBANE

THURSDAY, 20 JULY 2023

JUDGMENT

BOND JA:  The applicant is a 44 year old recidivist drug offender and heroin addict who seeks leave to appeal in respect of sentences imposed for drug-related offending on 10 December 2021.  He was 41 at the time of commission of the offending and 43 at the time of sentencing.  He has a long criminal history of drug-related offending commencing in Victoria at age 17 and in Queensland at age 26.  Before identifying the nature of the index offending and the sentences which were imposed, it is necessary to mention two aspects of his lengthy criminal history.

First, he was sentenced on 18 July 2014 in the Supreme Court by Justice Mullins for a number of drug offences including two counts of supply of schedule 1 drugs.  He had spent about 18 months in pre-sentence custody that could not be declared.  Her Honour sentenced him to two and a half years’ imprisonment with a parole release date fixed seven days after the sentence.  Her Honour concluded that the otherwise appropriate notional head sentence was one of four years’ imprisonment.

Second, he was sentenced on 12 December 2018 in the Supreme Court by Justice Douglas for the offence of trafficking in dangerous drugs between 27 September 2016 and 14 November 2016, and for a number of other drug offences.  Those offences were committed whilst subject to parole for the offences sentenced by Justice Mullins.  He was sentenced to five years’ imprisonment suspended after 687 days presentence custody - which was the time he had already served - for an operational period of five years.  He was further sentenced to probation for three years.

On 26 November 2021, he was convicted on his own plea of guilty to three counts on an indictment as follows: (a) count 1, trafficking in dangerous drugs, namely heroin and morphine; (b) count 2, contravene an order about information necessary to access information electronically; (c) count 3, possessing a dangerous drug, namely heroin.  He was sentenced on 10 December 2021 by Justice Freeburn.  It was accepted that his guilty plea should be regarded as a timely plea.

An agreed statement of facts revealed that the trafficking the subject of count 1 occurred during a period of about seven weeks between 20 October 2019 and 13 December 2019.  The fact that the applicant had acted as a middleman to facilitate the supply of drugs between an unknown supplier and two individuals had been detected as a result of telephone intercepts conducted on mobile phones of the two individuals.  The applicant had supplied at least 120 grams of heroin and 100 morphine tablets in wholesale quantities.  He had received at least $32,000 for the drugs, although most of the profit would have been retained by the unknown supplier.  It was accepted that the applicant had engaged in the conduct to make a profit.  The amount of the profit could not be calculated.  Count 2 concerned the applicant’s failure to provide to police the access code to his mobile phone when they executed a search warrant on 12 December 2019.  Count 3 concerned the possession of a calculated amount of .538 grams of heroin contained within 2.182 grams of substance.  The applicant had disclosed that possession to police after the search.

The index offending occurred less than a year after the sentence imposed by Justice Douglas and during the operation period of the suspended sentence imposed by his Honour and the period of probation to which his Honour had made the applicant subject.  Given the potential activation of the sentence imposed by Justice Douglas and the periods of imprisonment which the applicant had already served, the question of totality was an important issue for the sentencing judge.

Before the sentencing judge, the Crown submitted that if the sentencing judge was dealing only with the three counts before him, the index offending would warrant a head sentence of between six and seven years.  The Crown submitted that the balance of the suspended sentence yet to be served, namely a period of three years and six weeks, had to be activated in its entirety and served cumulatively upon any sentence imposed in respect of the index offending.  Without moderation, that would suggest a total effective head sentence of between a little over nine and a little over 10 years.  However, the Crown accepted that the sentence imposed for the index offending should be moderated for totality considerations and to reflect the defendant’s plea of guilty.  It suggested moderating the head sentence for the index offending down to five years.  The effect of those submissions was to submit for a total effective head sentence of just over eight years.  The Crown submitted that a parole eligibility date could be set at one-third of that total head sentence.

Before the sentencing judge, counsel for the applicant accepted the proposition that the balance of the suspended sentence should be activated and that it would have to be cumulative to the sentence imposed by the sentencing judge for the index offending.  Counsel submitted that if count 1 was to be sentenced separately, it would attract a sentence of between five and six years.  Counsel submitted, however, that the head sentence needed to be ameliorated both for totality considerations and because realistically the applicant’s prospects of getting parole were low.  Counsel submitted the starting point for the trafficking offence was five years and that should be reduced to three to four years with parole eligibility at the 50 per cent mark.  The effect of those submissions was to suggest a total effective head sentence of a little over six and a half years with parole eligibility left at the 50 per cent mark.

The applicant was sentenced to three and a half years’ imprisonment on count 1, 12 months’ imprisonment on count 3, and convicted and not further punished on count 2. The applicant was found to have breached the sentencing orders imposed by Justice Douglas. The sentencing judge activated the whole of the remaining sentence which Justice Douglas had imposed, calculated as previously mentioned at three years and six weeks as at the date of the sentence, to be served cumulatively with the three and a half years imposed on count 1. For breach of the probation order, a conviction was recorded and the applicant was not further punished. Pre-sentence custody of 729 days was declared as time served under the sentence. The sentencing judge made no order as to parole eligibility date with the consequence that, pursuant to the operation of s 184(2) of the Corrective Services Act 2006 (Qld), the applicant would become eligible for parole after one half of the head sentence imposed.

Although the applicant’s oral submissions before this Court ranged somewhat broader than his appeal ground, the applicant sought leave to appeal on the sole ground that the sentence imposed was manifestly excessive.  Before this Court, he specifically accepted that the effective length of the head sentence was “very fair”.  His criticism was as to the structure of the sentence.  He submitted that a parole eligibility date should have been set at a third of the head sentence as a reflection of his timely plea.

The applicant’s submissions must be rejected.  The sentencing judge gave the applicant the benefit of a very substantial discount to the head sentence which was otherwise called for by the applicant’s offending.  The extent of the discount must be regarded as a reflection of the submissions that the head sentence should be ameliorated for totality considerations and as a reflection of the applicant’s guilty plea.  Contrary to the applicant’s submissions before this Court, there is no basis for considering that the judge failed to take into account all other considerations relevant to sentencing which were placed before the sentencing Court.  There is no basis whatever to contend that his Honour’s decision not to set a parole eligibility date earlier than that which would apply by virtue of statute made the sentence manifestly excessive.  The application for leave to appeal against sentence must be refused.

DALTON JA:  I agree.

FLANAGAN JA:  I agree.