Umgeher-Rhodes v State of Tasmania

[2024] TASCCA 14

[2024] TASCCA 14

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Umgeher-Rhodes v State of Tasmania [2024] TASCCA 14
PARTIES:	UMGEHER-RHODES, Kellie Maree
v
STATE OF TASMANIA
FILE NO:	2234/2023
DELIVERED ON:	23 December 2024
DELIVERED AT:	Hobart
HEARING DATE:	27 August 2024
JUDGMENT OF:	Wood J, Jago J, Martin AJ
CATCHWORDS:

Criminal law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Found guilty of one count of trafficking in a controlled substance involving conducting an organised drug business including importation and sale of significant quantity of methylamphetamine – Pleas of guilty to a second count of trafficking and summary offences – Second count involved commercial trafficking in methylamphetamine and committed 12 months later while on bail for first trafficking – Global sentence of 10 years’ imprisonment with non- parole period of 5 years – Sentence not manifestly excessive - Appeal allowed to limited extent of correcting sentence with respect to a summary offence which carries a maximum statutory penalty of a fine.

Criminal Law Aust Dig [3521]

Cases cited:
Cheung v The Queen [2001] HCA 67, 209 CLR 1
Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1
Director of Public Prosecutions v Kobelke [2020] TASCCA 110

R v Olbrich [1999] HCA 54, 199 CLR 270

REPRESENTATION:

Counsel:

Appellant:	G Barns SC
Respondent:	S Wilson

Solicitors:

Respondent:  Director of Public Prosecutions

Judgment Number:	[2024] TASCCA
Number of paragraphs:	45

Serial No 14/2024

File No CCA 2234/2023

KELLIE MAREE UMGEHER-RHODES v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL WOOD J JAGO J MARTIN AJ 23 December 2024
Orders of the Court:

1.    Appeal allowed with respect to summary offence of possess thing used for the administration of controlled drug and sentence for that offence set aside.

2.     Sentence in relation to two counts of trafficking and remaining summary offences affirmed.

Serial No 14/2024

File No CCA 2234/2023

KELLIE MAREE UMGEHER-RHODES v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J
23 December 2024

1   I agree with Martin AJ.

2   No 14/2024

File No CCA 2234/2023

KELLIE MAREE UMGEHER-RHODES v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
JAGO J
23 December 2024

2   I agree with the reasons and orders proposed by Martin AJ.

3   No 14/2024

File No CCA 2234/2023

KELLIE MAREE UMGEHER-RHODES v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL MARTIN AJ 23 December 2024
Introduction

3             The appellant was found guilty by a jury of trafficking in a controlled substance. Subsequently, she pleaded guilty to a second offence of trafficking committed 12 months after the first trafficking, and to three firearms offences, a breach of bail and an offence of possessing an item used for the administration of a controlled drug. Estcourt J imposed a single sentence of imprisonment for ten years and directed that the appellant not be eligible for release on parole until she had served five years of that sentence.

4             The appellant appeals against the sentence on two grounds. First, that the learned sentencing judge erred in making findings of fact as to the level of the appellant's involvement in the business of the first trafficking. Secondly, as a consequence of the error, the sentence imposed was manifestly excessive. The appellant did not maintain that, absent error, the sentence was manifestly excessive.

5   For the reasons that follow, I would dismiss the appeal.

Background

6             Together with a co-accused, Joshua James Barda, the appellant was tried before a jury on a charge that between about 21 June 2020 and 9 July 2020, the appellant trafficked in a controlled substance, namely methylamphetamine (indictment 1 November 2022 – 280/2022). The jury returned a verdict of guilty on 24 May 2023.

7             On 4 August 2023 the appellant pleaded guilty to trafficking in methylamphetamine between about 2 July 2021 and 22 September 2021 (indictment 24 July 2023 – 170/2023). On the same day, through counsel, the appellant entered pleas of guilty to the following charges on complaint:

i	1 count of possess a firearm when not the holder of a firearm licence of the appropriate category, contrary to s 9(1) of the Firearms Act 1996
ii	1 count of possess shortened firearm, contrary to s 116(b) of the Firearm Act 1996
iii	1 count of possess ammunition when not the holder of the appropriate firearm licence, contrary to s 105(3)(a) of the Firearms Act 1996
iv	1 count of breach of bail, contrary to s 9 of the Bail Act 1994
v	1 count of possess thing used for the administration of controlled drug, contrary to s 23 of the Misuse of Drugs Act 2001.

8             On 16 August 2023 the learned sentencing judge imposed a single sentence of imprisonment for ten years and ordered that the appellant not be eligible for parole until she has served five years of that sentence. Although there are two grounds of appeal asserting an error of fact by the sentencing judge and a manifestly excessive sentence, the appellant's submissions identified an underlying single issue, namely, the "findings of fact as to the level of the appellant's involvement in the business of drug trafficking during the relevant period". In essence, the appellant complains that the sentencing

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judge erred in finding, beyond reasonable doubt, that the appellant was "the drug trafficking business
owner or a senior associate during the period of the indictment".

9             At the heart of the case for the appellant is the contention that the finding of the sentencing judge was "not open on the evidence before the jury at the trial". The appellant argued that such a finding "could not be proved, based on the jury verdict, beyond reasonable doubt".

10          The relevant sections of the remarks of the sentencing judge concerning the factual basis of the first trafficking were as follows:

"As to the first of the trafficking charge the State asserts that it follows from the jury verdict that for the whole or a significant period of the indictment the defendant was conducting an organised drug business of a commercial and systematic kind involving the importation and sale of a significant quantity of methylamphetamine.

The State asserts that the jury's verdict is consistent with the activities of the defendant's drug trafficking business, including the following : (a) engaging another person to travel to Melbourne on 22 June 2020 to collect 990 grams of methylamphetamine intended for sale, from the defendant's drug supplier and to send it to the defendant via Australia Post; (b) engaging another person to act as courier to import 476.4 grams of methylamphetamine into Tasmania via the Spirit of Tasmania on 9 July 2020, which was intended for later sale, and travelling to Melbourne with that person between 5 and 9 July 2020 to purchase that amount of methylamphetamine and then assisting in packaging the drug prior to its importation.

Between 30 June and 1 July 2020, arranging for the purchase of an ounce of methylamphetamine from a local drug supplier and between 21 June 2020 and 9 July 2020 selling and/or directing others to sell methylamphetamine from her home in Goodwood, which she operated as a retail front for her customers.

I accept that submission. I am satisfied beyond reasonable doubt that whilst others were involved in the defendant's drug trafficking business, it was her business and was controlled by her or, at the very least, she was the senior partner in the business." (My emphasis.)

Appellant's submissions

11           In written submissions, the appellant relied heavily on evidence concerning the involvement of persons other than the appellant in the trafficking business which was the subject of the indictment before the jury. Specific reliance was placed upon evidence of the involvement of Ms Lisa Harwood, Mr Jason Dare, the co-accused Mr Joshua Barda and Mr Tobias Oddie-Jones. The written submissions summarised such evidence as follows:

"[15]	There were agreed facts that Harwood had pleaded guilty to trafficking, as had Oddie-Jones;
[16]	Jason Dare was apprehended at Hobart airport with Lisa Harwood.

Lisa Harwood

[17]          Ms Harwood was living with Ms Rhodes during the period of the trafficking at 9 McCartney Ave Goodwood. She was present when police executed a search warrant at those premises;

[18]          It is our submission that Ms Harwood had extensive involvement in the trafficking enterprise which included:

• Travelling to Melbourne on 20 June 2020 with a male to be supplied with 990 grams of methylamphetamine which she posted in three parcels from Melbourne by Express Post;

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• After Hardwood was apprehended on her return to Hobart airport on 22 June 2020, she received a phone call from Mr Barda and Barda attended the airport;

• Ms Harwood was living with the Appellant during the trafficking period and had access to the phone number registered in the Appellant's name, messages relied upon heavily by the prosecution to establish the guilt of the Appellant and her role;

• Ms Harwood also had access to the Appellant's bedroom where police found drugs and scales, and the phone from which messages to and from were sent and received and which was relied on by the prosecution as evidence of the Appellant's involvement.

Appellant's phone number and phone found at 9 McCartney Ave Goodwood

[19]          The Appellant's mobile service, 0488 702 799 which was subscribed in her name was intercepted by police between 21 June 2020 and 9 July 2020 and the messages to and from that service were tended during the trial, see P 67;

[20]          The prosecution relied on the messages from and to that number extensively in their submission that the Appellant was running the trafficking enterprise.

[21]          There was no evidence before the court that the Appellant was author of the text messages referred to, and relied upon by the prosecution and that she was the only person who used the phone. In addition there was no evidence that the mobile phone on which the messages were found was in fact her phone. The police made an assumption that it was her phone because it was found in her bedroom;

[22]          The exhibit P67, sets out the messages. In our submission they show that others used the Appellant's phone and that the Appellant was a cog in the wheel of the trafficking but not the proprietor or equal partner.

[23]          In particular we refer to and rely on, among others, messages: 15, 32, 97, 199, 337 and 338, 363 and 364, 370, 494.

[24]          The jury had the opportunity to read the messages. There is nothing in the messages which suggest the role of the Appellant was the principal or a partner in the business.

[25]          Given that Lisa Harwood lived in the house it is quite possible that she used the phone to communicate.

Appellant's house – 9 McCartney Ave Goodwood

[26]          Police executed a search warrant at Ms Rhodes's and Ms Harwood's address on 24 June 2020.

[27]          On police arriving Ms Harwood was seen coming from the toilet; Later two snap lock bags containing drugs were found;

[28]          Drugs and scales were found in the Appellant's bedroom;

[29]          The prosecution did not lead any evidence which suggested that the Appellant had exclusive use of the bedroom.

Trip to Melbourne

[30]          In relation to the Appellant's trip to Melbourne she was involved in the organisation but it is clear there were others involved in it. The Appellant's trip to Melbourne in early July 2020 with Mr Oddie-Jones included Mr Barda working with her to pay for hotels and the cars that were bought;

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No Hierarchy

[31]       Importantly there was no evidence that demonstrated any hierarchy in the trafficking business. The evidence certainly showed, and obviously the jury was satisfied beyond reasonable doubt, of the Appellant's involvement in trafficking but there was no evidence before the court which pointed to the Appellant having anymore extensive involvement than others such as Harwood and Barda." (Transcript references omitted.)

Respondent's submissions

12          The respondent's written submissions summarised the evidence from which the respondent contended the findings of fact were open to the sentencing judge:

"7 The evidence led by the State from which the learned sentencing judge could be satisfied beyond a reasonable doubt that the Appellant was the owner or senior partner of the drug trafficking business was as follows:

(a)	She was the intended recipient of the three parcels containing 990 grams of methylamphetamine imported into the State because they sent to the Appellant's mother and sister's address by Ms Harwood;
(b)	The Appellant tracked the delivery of one of those parcels after it was sent from Melbourne via her online Australia Post account;
(c)	She paid for hire cars, accommodation and travel;
(d)	Police located $28,220 cash at her home in Goodwood which she admitted belonged to her [forfeited as proceeds of crime];
(e)	She travelled to Melbourne with a male to purchase 476 grams of methylamphetamine, which was concealed in a vehicle and imported into the State [driven by Oddie-Jones];
(f)	Whilst in Melbourne, the Appellant purchased a Mercedes Benz for $51,000 and spent $5,620 at Louis Vuitton [vehicle and purchase from Louis Vuitton forfeited].
(g)	She arranged and/or financed the purchase of the Commodore station wagon which was used to conceal the methylamphetamine referred to in para (e) above;
(h)	Assisted Mr Oddie-Jones package the methylamphetamine prior to its concealment [the appellant's DNA was located on packages in one or two PVC pipes used to conceal the drug].

8         In addition, lawfully intercepted messages (Exhibit P67) relating to a mobile service subscribed in the Appellant's name when considered as a whole, revealed that the Appellant regularly utilised the service in running her drug trafficking business. In particular Exhibit P67 showed:

(i)      That she arranged for the purchase of an ounce of methylamphetamine from a local drug supplier and delivery of it to her home between 30 June and 1st July 2020; and

(ii)      The sale of, making arrangements to sell and/or directing other persons to sell methylamphetamine from her home between the entire 3 week period of the indictment.

9         The Appellant contends that the evidence led at the trial established that other persons' involvement in the drug trafficking business was equal to that of the

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Appellant. In particular, it is submitted that Lisa Harwood's involvement was extensive.

10       In response, the Respondents submits as follows:

(a)	Whilst Ms Harwood travelled to Melbourne and arranged for 990 grams of methylamphetamine to be posted to Tasmania, that was where her involvement in the drug business ended;
(b)	Whilst Ms Harwood was living with the Appellant at the Macartney Avenue property at the time police executed a search warrant on 24th June 2020, the evidence also established that Ms Harwood was arrested on that day. There was no evidence led at the trial that Ms Harwood returned to the property and lived with the Appellant for the duration of the indictment period;
(c)	There was no evidence that the mobile phone located by police at the Appellant's home in Goodwood was the phone from which the intercepted text messages were sent and received. The evidence merely established that there was an Apple iPhone found in the main bedroom;
(d)	The messages contained in Exhibit P67 referred to by the Appellant in paragraph 23 of their submissions, do not support their assertions that others used the mobile phone and that the Appellant was merely a cog in the wheel of the trafficking business.

11       The Appellants counsel at the sentencing hearing accepted that the Appellant's involvement in the business was not on equal footing with Lisa Harwood, because she had pleaded guilty in relation to the first importation only and not to being involved in selling methylamphetamine or the second importation.

12       It was clearly open on the evidence for the learned sentencing judge to be satisfied beyond a reasonable doubt that the trafficking business was the Appellant's, or at the very least, she was the senior partner in that business, from the evidence led at the trial. None of the sentencing judge's findings were inconsistent with that.

13       There was no error in the learned sentencing judge's determination of the facts." (Appeal book and transcript references omitted.)

Ground 2
Factual basis for sentence

14       Both of the trafficking crimes related to the Appellant conducting a large scale organised drug business involving the importation and sale of methylamphetamine, of a commercial and systematic kind for the whole, or a significant period of the indictments. Whilst other persons were involved in the Appellant's drug trafficking businesses, their operation were controlled and directed by her.

Indictment 280/2022

15       The activities of the Appellant's drug trafficking business which operated between 21 June 2020 and 9 July 2020 included the following:

(a) Engaging another person to travel to Melbourne on 22 June 2020 to collect 990 grams of methylamphetamine, intended for sale, from the Appellant's drug supplier and arrange for it to be imported into Tasmania via Australia Post;

8   No 14/2024

(b)	Engaging another person to act as a courier to import 476.4 grams of methylamphetamine into Tasmania via the Spirit of Tasmania on 9 July 2020, which was intended for later sale;
(c)	Travelling with that person referred to in (b), to Melbourne between 5 and 9 July 2020 to purchase the methylamphetamine and packaging the drug prior to its importation;
(d)	Between 30 June and 1 July 2020 arranging for the purchase of an ounce of methylamphetamine from a local drug supplier; and
(e)	Between 21 June 2020 and 9 July 2020, selling and/or directing other persons to sell methylamphetamine from her home which she operated as a retail front for her customers.

16       Police seized $28,220 cash from the Appellant's home when a search warrant was executed on 24 June 2020 and $850 was found in her handbag when she came off the Spirit of Tasmania on 9 July 2020.

17       The Appellant purchased a Mercedes Benz sedan for $51,000 and Louis Vuitton items valued at $5,620 whilst she was in Melbourne in July 2020.

18       If all of the 1,466.4 grams of methylamphetamine imported into Tasmania was sold as points/0.1 grams for $150 per point, there was 14,664 points valued at $2,199,600.

19       If that same quantity of methylamphetamine was sold in ounce quantities/28 grams for $28,000 per ounce, there was 52.38 ounces valued at $1,466,399.

20 The evidence led on the trial revealed that the street price of methylamphetamine increased substantially during 2020 as COVID affected the supply of the drug."

Jury verdict

13           The jury having returned only the general verdict of guilty to the charge contained in the indictment, it is unknown whether the jury reached any agreement as to the precise factual basis of the offending. It was the task of the sentencing judge to make findings of fact his Honour found were proven beyond reasonable doubt and consistent with the verdict of the jury. In this context it is appropriate to note the basis upon which the case was presented to the jury.

14          Early in her opening remarks to the jury, having provided the jury with a copy of the indictment, counsel for the Crown plainly stated the basis of the Crown's case against the appellant:

"So, ladies and gentlemen, it is the State's case that Kellie Rhodes was in charge of a business in trafficking methylamphetamine which operated on a continuous and regular basis for the three- week period in the indictment, or for a significant portion of that time.

Furthermore, it is also the State's case that Joshua Barda assisted Ms Rhodes in her drug business by actively participating in and providing his assistance to Ms Rhodes which enabled the drug business to be carried on.

So it is the State's case that Ms Rhodes and Mr Barda were, in that three-week period, or a significant portion of that three-week period, engaged in the business of trafficking in methylamphetamine. They were involved in sourcing and obtaining methylamphetamine from drug suppliers, importing the drug in to Tasmania from Victoria for later sale, and selling the drugs to various customers. Now , that indictment is yours, please feel free to write on it and make notes as you wish, but

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you can put it away for the moment and no doubt you'll have to refer to again when it
comes to time to deliver your verdict."

15           Counsel for the Crown then outlined the evidence the Crown expected to lead, including evidence as to the involvement of other persons in the trafficking enterprise. The involvement of others was presented as assisting the appellant. After identifying such evidence, counsel again specified the Crown case that the appellant was operating "her drug business":

"It is the State's case that Ms Rhodes operated her drug business from her home at 9 Macartney Avenue in Goodwood and also delivered quantities of methylamphetamine to her customers herself or engaged others to do this on her behalf."

16           In closing submissions, counsel for the Crown urged the jury to be satisfied that the appellant was "operating a business of trafficking in methylamphetamine on a continuous and a regular basis for the three week period covered in the indictment, or for a significant portion of that period." Counsel put to the jury that the co-accused, Mr Barda, assisted Ms Rhodes "in her drug trafficking business". The tenor of the address continued to urge that the drug trafficking enterprise was the appellant's drug business in which others, including Ms Harwood, assisted the appellant. At the conclusion of her remarks, counsel put to the jury that the appellant "was operating a well organised and profitable drug business", and that Mr Barda was actively involved in "Ms Rhodes' drug business" and "assisted Ms Rhodes greatly at selling and delivering quantities of methylamphetamine for her business".

17           Counsel for the appellant adopted the same approach in her address to the jury. She drew a clear distinction between proof of involvement in the business of trafficking specified in the indictment, as opposed to involvement in an individual transaction. During her address counsel placed considerable emphasis on the activities of Ms Harwood and Mr Oddie-Jones.

18           The address to the jury by counsel for the appellant plainly urged that even if the appellant had been involved in an individual drug transaction, the Crown had failed to prove that the appellant was involved in the trafficking in which other persons were engaged. Similarly, the trial judge was careful to identify the same distinction between involvement in the business of the trafficking and individual importations, offences which were available as alternatives should the jury find the appellant not guilty of trafficking. His Honour explained to the jury that it would have been open to charge the appellant with three individual occasions of trafficking, including selling to various people, but such a course had not been chosen by the Crown:

"But that's not what the Crown chose to do in this case. The Crown made a decision, this wasn't one of those cases where there was just an instance of trafficking here and an instance of trafficking there. Crown decided when it drew up the charge on the indictment that the accused were running a business, they were running a business of trafficking in a controlled substance. So, what does that involve? In 3.4, I've said:

'It amounts to trafficking if over a period of time, a person engages in the business of selling a controlled substance, and in such a case, to traffic means to carry on a business or a trade.'

As Ms Wilson said to you in her opening, the State is not required to prove a specific offence on a specific date, but it must prove beyond reasonable doubt the carrying on of the business over a period of time involving the trafficking in a controlled substance."

19           Later in his remarks to the jury, the trial judge identified the Crown case that the appellant "was operating a business, this business of trafficking, and it – was doing so on a continuous and regular basis for the three week period covered in the indictment, or at least for a significant portion of that period." His Honour reminded the jury of the Crown case that Ms Harwood, in travelling to Melbourne and sending parcels back, "was acting on behalf" of the appellant and that Mr Barda's "job" was to help the appellant track the parcels.

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20           Subsequently the trial judge described the question for the jury as to whether the jury was satisfied that the appellant, during a significant period of time within the period charged in the indictment, was "involved in the carrying on of a business of trafficking in methylamphetamine". Later, in response to a question by the jury which appeared to expose a concern as to how an importation could be excluded from the concept of trafficking, his Honour repeated his earlier remarks concerning the choice of the Crown not to charge individual acts of trafficking, but to bring an indictment "alleging trafficking by running a business, which is more serious." The response to the jury question continued:

"So, if the State fail to convince you, if you're not satisfied beyond reasonable doubt that the accused were involved in running a business, that is a continuous for a period, and a systematic commercial operation, if you're not satisfied as to that, then they are not guilty of the trafficking charge as brought.

So, if your concern is, how could you import but not be trafficking, well it's the way the State brought the charge. There's not parts to the charge. There's not, you know, guilty of the first Melbourne trip, guilty of the Melbourne-Devonport trip, guilty of the selling. Either you're satisfied beyond reasonable doubt that they were involved in running a business, a continuous commercial systematic operation, or they're not guilty of the charge as brought – and the only other charge, the only other law that they breached is importing a controlled substance into Tasmania, which is a lesser – which is a lesser charge."

Principles

21           The principles to be applied are not in doubt[1]. First, the sentencing judge was required to sentence on a factual basis consistent with the verdicts of the jury. In this context, the jury was satisfied that the appellant engaged in the business of trafficking during the relevant period of the indictment, as opposed to engaging in three or less individual acts of drug importation which could, in each instance, have amounted to an occasion of trafficking. The jury was satisfied that the appellant was engaged in trafficking on a continuous basis over the relevant period.

[1]              Cheung v The Queen [2001] HCA 67, 209 CLR 1; R v Olbrich [1999] HCA 54, 199 CLR 270.

22           Also in this context it is appropriate to bear in mind the Crown case that it was the appellant's business in which others assisted her, but it was not necessary for the jury to reach a decision as to who was the owner or operator of the business.

23           Secondly, a finding that the appellant was the owner or operator of the business was a finding adverse to the appellant and could only be made, and used as a basis for sentencing, if the evidence satisfied the sentencing judge of that fact beyond reasonable doubt.

24          Thirdly, before such a finding could be made, the evidence had to be capable of supporting such a finding beyond reasonable doubt.

Evidence capable of supporting finding

25           Underlying the appellant's case on appeal were two fundamental contentions. First, that the evidence was incapable of supporting a distinction between the role of the appellant and the involvement of Ms Harwood. Secondly, that the evidence was incapable of supporting a conclusion that it was the appellant who engaged in the majority of the SMS exchanges evidenced in exhibit P 67, rather than Ms Harwood or another co-offender. I reject both contentions.

26           Although Ms Harwood lived for a period at the home of the appellant, there was no evidence to suggest that she was involved in any illegal activity after her arrest on 22 June 2020 following the first importation from Melbourne. There was no evidence as to whether she resided with the appellant

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following her arrest. Significantly, nothing in the evidence suggested that Ms Harwood organised the importation, gave directions to anyone or paid for any expenses associated with the importation. There was no evidence that Ms Harwood profited from any of her activities.

27           Counsel for the appellant urged it was open on the evidence to find that Ms Harwood and others used the appellant's mobile phone. Assuming use by Ms Harwood and others cannot be excluded, the possibility that others used the appellant's mobile phone does not detract from the probative value of the evidence in the case against the appellant.

28          A mobile telephone was found by the police on the bed in the appellant's bedroom of her home, but there was no evidence that it was the mobile that operated through a number ending 799. However, a mobile service subscribed in the appellant's name operated through a number ending 799. Of the 526 SMS messages involving 799 identified in exhibit P 67, counsel for the appellant could point to two messages only, the contents of which suggested that the appellant was not the author. By way of contrast, there are numerous messages containing reference to the appellant's Christian name which clearly demonstrate that the appellant was the author of the SMS exchanges. Viewed in its entirety, P 67 provided strong evidence that the appellant was using the mobile service in her name ending 799 in the operation of the business of trafficking in methylamphetamine, and that she was the author of the vast majority of the SMS messages emanating from 799.

29           In this context I note numerous messages in the period 5-7 July 2020 clearly demonstrating that the appellant was using the mobile telephone 799 while in Melbourne. A number of the exchanges relate to the availability of a Mercedes Benz motor vehicle which the appellant sought to view, indicating on 7 July 2020 that she was "over from Hobart and heading back tonight".

30           None of the SMS exchanges suggest that any person was giving directions to the appellant. It is readily apparent that the appellant determined what happened in the business of trafficking and that she utilised her mobile telephone in a directive fashion.

31           Mention was made during submissions of the fact that Ms Harwood pleaded guilty to trafficking in respect of the first importation from Melbourne. However, as the sentencing judge observed during submissions, Ms Harwood pleaded guilty on the basis of a limited set of facts and there was no question of parity involved. Ms Harwood's plea was not of any assistance to the sentencing judge in determining the role played in the first trafficking by the appellant.

32           The assessment of the probative value of the SMS exchanges found in exhibit P 67 as a piece of circumstantial evidence, and consideration of the competing submissions concerning P 67, are to be considered in the context of the totality of the evidence. The totality of the evidence strongly supports the conclusions from P 67 to which I have referred. The summary of the evidence provided in the respondent's written submissions and set out in [10] of these reasons conclusively demonstrates that not only was the finding of the sentencing judge open to his Honour, it was the obvious and appropriate conclusion. In comparison with other persons shown to be involved in the trafficking, including Ms Harwood, the appellant's activities possessed the hallmarks of a person in control of the business of trafficking and who benefited from it. No error has been demonstrated.

33           Although counsel for the appellant in oral submissions specifically stated that in the absence of error the appellant was not contending that the sentence was manifestly excessive, for reasons which will become apparent it is appropriate to deal with the questions of penalty and the significance, or otherwise, of the classification of the appellant's criminal activity in the first trafficking.

Ground 2 – Manifestly excessive

34           As to the sentence of imprisonment for ten years, the sentencing judge was imposing sentence for a number of offences, but particularly for two periods of significant commercial trafficking in

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methylamphetamine. His Honour was imposing sentence, correctly, on the basis that the trafficking business conducted in the two relevant periods was the business of the appellant and was controlled by her or, at the very least, the appellant was the senior partner in the business.

35   The relevant facts were summarised by the sentencing judge:

"As to the first of the trafficking charge the State asserts that it follows from the jury verdict that for the whole or a significant period of the indictment the defendant was conducting an organised drug business of a commercial and systematic kind involving the importation and sale of a significant quantity of methylamphetamine.

The State asserts that the jury's verdict is consistent with the activities of the defendant's drug trafficking business, including the following: (a) engaging another person to travel to Melbourne on 22 June 2020 to collect 990 grams of methylamphetamine intended for sale, from the defendant's drug supplier and to send it to the defendant via Australia Post; (b) engaging another person to act as courier to import 476.4 grams of methylamphetamine into Tasmania via the Spirit of Tasmania on 9 July 2020, which was intended for later sale, and travelling to Melbourne with that person between 5 and 9 July 2020 to purchase that amount of methylamphetamine and then assisting in packaging the drug prior to its importation.

Between 30 June and 1 July 2020, arranging for the purchase of an ounce of methylamphetamine from a local drug supplier and between 21 June 2020 and 9 July 2020 selling and/or directing others to sell methylamphetamine from her home in Goodwood, which she operated as a retail front for her customers.

I accept that submission. I am satisfied beyond reasonable doubt that whilst others were involved in the defendant's drug trafficking business, it was her business and was controlled by her or, at the very least, she was the senior partner in the business.

As to the second count of trafficking, the defendant was again operating her drug business from her home in Goodwood, which operated as a retail front for her customers. She was responsible for sourcing large quantities of methylamphetamine from drug suppliers within Tasmania and selling various quantities to a large number of drug customers.

The defendant received text messages and phone calls almost every day of the three- month period from her customers, requesting methylamphetamine, or from persons – sorry – requesting – from her customers requesting methylamphetamine or from persons who could supply her with that drug for sale. An examination of the defendant's mobile phone seized during a police search indicated that the defendant was using encrypted messaging to organise the sale of drugs.

The defendant relied on and was assisted in her business by two main associates, Lisa Harwood and Joshua Barda, who received instructions and direction from the defendant about the operation of the drug business and were involved in the delivery and sale of methylamphetamine. In some instances, Ms Harwood and Mr Barda used the defendant's mobile phone to make and receive calls from drug customers or suppliers at the defendant's direction.

On 22 September 2021 police executed a search warrant at the defendant's Goodwood house and an ice pipe was located in the main bedroom – that's count 6 on complaint 7429/2021. Also located was a .410 Mossberg bolt-action repeating sawn-off shotgun, one .22 round, and five .410-gauge shotgun cartridges as well an empty .22 magazine and a .22-calibre Sterling self-loading sawn-off rifle. 90 rounds of 22 ammunition and two 12-gauge cartridge and six 410-gauge cartridges. The firearms were classified as a pistol and the defendant was not, and had never been, the holder of a firearms licence rather, and they are counts 2, 3 and 4 on complaint number 7429 /2021.

Count 5 on that complaint was an occasion when the defendant was intercepted by police with a thousand dollars in fifty-dollar notes in her pocket and falsely identified herself as Natasha Carr and told police that she was on her way to hospital. I accept

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the State's submission that the matters for which the defendant has been found guilty at trial and to which she had pleaded guilty represent very serious instances of trafficking. The objective seriousness of the offending for both matters is high, particularly having regard to the systematic commercial and continuous nature of the trafficking business during the periods of the indictments.

Despite their combined duration being relatively short, the scale of the drug – that's 15 weeks in total, the scale of the drug business was significant operating almost every day in that period. And the operation of both businesses was aimed at the generation of large profits, giving the quantities of methylamphetamine purchased wholesale and the significant number of retail customers the defendant serviced.

The State is unable to accurately quantify the weight of methylamphetamine that was sold by the defendant or the income that was received by the drug business. However, had all of the methylamphetamine imported by the accused on 24 June 2020 and 9 July 2020 been sold, the street value would have been between one million four hundred and sixty-six thousand three hundred and ninety- nine dollars and two million one hundred and ninety-nine thousand six hundred dollars, depending on how it was sold.

In addition, the calculable income from the defendant's 2021 business was between one hundred and seventy-four thousand four hundred and twenty-eight dollars and three hundred and five thousand two hundred and fifty dollars. The value of the methylamphetamine involved is clearly significant. It could have generated an income in the vicinity of two point five million.

Most of the defendant's drug customers paid her, Mr Barda and Ms Harwood in cash for the methylamphetamine. However, some of her customers paid by electronic transfer to the defendant's Westpac Bank account. Between 5 July 2021 and 21 September 2021, she received thirty-one thousand four hundred and forty dollars from her drug customers.

Also between 2 July 2021 and 6 September 2021, Mr Barda and Ms Harwood deposited three thousand one hundred and ten dollars into the Westpac Bank account. The total of the account was therefore thirty- four thousand five hundred and fifty dollars."

36           In respect of the second trafficking the appellant accepted the Crown facts that she was "operating an organised business of trafficking in methylamphetamine" and was operating "her business" from her home. However, the sentencing judge reached his findings as to the first trafficking through his assessment of the trial evidence without reference to the facts of the second trafficking.

37   As to matters personal to the appellant, the sentencing judge provided the following summary:

"The defendant is now 40 years of age. She had an unremarkable upbringing, and married at age 18. Initially she describes the marriage as having been good. She and her husband purchased a house together and she was employed. They had three children together. They are now aged 20, 16, and 14. As the relationship progressed, however, it became marred by family violence. The most significant event that the defendant describes is when both of her front teeth were knocked out by her husband. She also describes various levels of abuse, apart from actual physical violence, including being ostracised from her family and friends.

Eventually she was able to leave the relationship. At that point in time her husband took all of her savings and left her with very little support. She was trying to deal with the breakup of her relationship as well as the trauma associated with it, and she started to associate with a group of former associates. Unfortunately, they were people who used drugs , and the defendant accepted drugs offered to her by them.

Thus, from the age of 30, the defendant was using methylamphetamine on a regular basis, and inevitably developed an addiction. She lived something of a double life,

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and she hid this, and she continued to raise her family. The defendant describes being dragged further and further into a culture of drug use, meeting people of the worst kind, and becoming more and more entrenched in the drug scene to the point where she owed money for drugs, and was led into funding her own habit and paying her debts by selling methylamphetamine.

In terms of the defendant's future, she has been employed in the prison kitchen while she has been in custody, and has found the work rewarding. She still maintains a close relationship with her children, despite her incarceration. After release from custody, she states that she wants to leave her former life behind, and in this regard, since she been in custody, she has been able to break her addiction."

38           The sentencing judge correctly observed that apart from the appellant's pleas of guilty to the second period of trafficking and the other incidental offences, there was "little" that could be said in mitigation. The appellant had previously offended against the drug laws and breached suspended sentences. In addition, the second trafficking offence was committed while the appellant was on bail for the first trafficking offence. His Honour correctly observed that both personal deterrence and general deterrence were important factors, particularly bearing in mind that methylamphetamine is an insidious drug which destroys the lives of those who use it. His Honour, again correctly, noted that a trafficker either chooses to ignore the prospect of harm, or puts their own interests and profiteering ahead of that harm, and that such conduct "demands denunciation and a heavy penalty to deter others."

39           The principles governing appeals against sentence on the basis of a complaint that the sentence is manifestly excessive are well settled and do not need repeating[2]. In essence, in the absence of error, it is for the appellant to demonstrate that the sentence was unreasonable or plainly unjust.

[2]              Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1.

40           The appellant engaged in two periods of significant trafficking in an insidious drug for commercial profit. She was in control of both operations and benefited from the profits. She did not cease her criminal activity voluntarily. Rather, having being apprehended for the first period of criminal activity, the appellant chose to repeat that criminal conduct 12 months later while on bail for the first trafficking. As recent authorities have demonstrated, while there is no discernible range of sentences for crimes of drug trafficking, those who control operations and benefit through profits commit crimes at the higher end of the scale of seriousness, and such crimes attract severe penalties.[3]

[3]              Director of Public Prosecutions v Kobelke [2020] TASCCA 110.

41          The sentencing judge imposed a sentence which appropriately reflected the gravity of the appellant's total criminal conduct.

42           During the hearing of the appeal, counsel for the appellant contended that, for the purpose of sentencing, the classification of the appellant as "the" senior partner in the business was significantly different from a finding that she was "a" senior partner in the business. The discussion concerning this issue proceeded on the basis that the sentencing judge, correctly, was not excluding the existence of other trafficking operations which were providing the methylamphetamine to the appellant. His Honour was concerned with the operation of trafficking conducted by the appellant.

43           As discussed, the sentencing judge sentenced on the basis that the appellant was controlling the first trafficking business or, at the least, she was "the" senior partner in the business. In my view, the distinction between the appellant being "the" senior partner, and being "a" senior partner for sentencing purposes in this case is of no consequence. The appellant was engaged in operating a business of trafficking pursuant to which the first trafficking offence occurred. It matters not if another person or persons were also operating the business on an equal footing with the appellant. Even if they were, in my view a single sentence of imprisonment for ten years would not be a

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manifestly excessive sentence, particularly as the second trafficking offence was committed while the
appellant was on bail for the first trafficking.

44           It would be a sentence well within the proper range of the sentencing discretion available to the sentencing judge. Even if the factual distinction was established in favour of the appellant, I would not interfere with the sentence.

45           For these reasons, subject to one minor correction, I would dismiss the appeal. Included in the offences for which Estcourt J imposed a single sentence of imprisonment was an offence relating to possession of a thing used for administration of a controlled drug (s 23 Misuse of Drugs Act) which attracts a fine only. It is appropriate, therefore, to allow the appeal for the limited purpose of setting aside the sentence as it applies to that offence, but leaving the remainder of the sentencing order in place. No additional penalty should be imposed for such offence.