[2017] QCA 293 COURT OF APPEAL GOTTERSON JA MORRISON JA HENRY J. CA No 153 of 2017 SC No 6 of 2017 THE QUEEN BRISBANE WEDNESDAY, 29 NOVEMBER 2017

Transcription

1 [2017] QCA 293 COURT OF APPEAL GOTTERSON JA MORRISON JA HENRY J CA No 153 of 2017 SC No 6 of 2017 THE QUEEN v BULL, Bradley Joseph Applicant BRISBANE WEDNESDAY, 29 NOVEMBER 2017 JUDGMENT MORRISON JA: Mr Bull pleaded guilty to seven counts of drug related offences, the most serious of which was trafficking in methylamphetamine and cannabis between 15 December 2014 and 17 December In addition, there were five counts of supplying methylamphetamine and one count of possession of various implements (an Apple ipad and two sets of scales) used in connection with the trafficking. On 16 June 2017, Mr Bull was sentenced to five years imprisonment on the trafficking count with a parole eligibility date fixed after serving 18 months, namely, 16 December On all other counts, he was convicted and not further punished.

2 2 Mr Bull seeks leave to appeal against his sentence on the basis that it is manifestly excessive; however, that argument is confined to the imposition of the parole eligibility date only, Mr Bull accepting that the imposition of five years imprisonment was within range. It is contended that the term of imprisonment should be suspended after serving 12 months in recognition of his substantial cooperation with the authorities and the administration of justice and his demonstrated rehabilitation. An agreed schedule of facts was tendered at the sentencing hearing. It revealed that on 16 December 2015, police searched Mr Bull s premises, during which he made comments to the effect that he knew the police were coming to conduct the raid and that they were two days late, and there is nothing here. He told police that there were items of interest in a breadbin. A search of the bin revealed: (i) (ii) (iii) (iv) (v) (vi) three notebooks containing tick sheets; over 300 clip sealed bags; two glass pipes; four brass pipes; two sets of digital scales (one containing traces of methylamphetamine and cannabis, and the other containing traces of methylamphetamine only); and one inoperable mobile phone. Police also located a cannabis plant and an Apple ipad. Mr Bull did not have an operable mobile telephone, and the evidence of his trafficking comes from messages on his ipad from two days prior to the search. It also stems from the analysis of a mobile telephone in the name of Mr Bull s associate, one Hubble, the tick sheets, scales and clipseal bags. The texts located on Hubble s mobile telephone showed drug activity since July Mr Bull admitted to police that he started the tick sheets a year ago a year or two. The Crown proceeded on the basis that the trafficking was for at least one year prior to the search, beginning nominally on 15 December The tick sheets identified that Mr Bull had at least 26 customers. He was owed at least $47,710. The tick sheets recorded drug supplies on credit to a total of 23 people for sums varying between

3 3 $600 and $11,400. Certain entries listed the price and quantities of drugs supplied: points for $100, half a gram $350, one gram $650 to $700, half an eight ball $1,100 and $1,800 for an eight ball. The tick sheets revealed Mr Bull liaised with Hubble to supply and source drugs. Between July and August 2015, the messages revealed a debate between Mr Bull and Hubble in relation to who owed what, though, in each case, it was a sum of about $2,000. The messages revealed that on some days over $4,000 worth of drugs was supplied. By December 2015, Mr Bull refused one customer any supply on tick, and other messages indicated that Mr Bull said he had people chasing those who had money. The supply counts were detailed in the schedule of facts on five occasions between 13 July 2015 and 13 December Messages between Mr Bull and Hubble included consideration of the price at which drugs could be obtained, the amounts that could be supplied, whether it would be in the form of powdered or crystal methylamphetamine, the quantities that might be supplied and whether there might be cannabis as well. During the execution of the search, Mr Bull told the police the following: (a) (b) (c) (d) (e) (f) he did not have a mobile phone this was later proved to be a lie; he did not deal in drugs or at least not in amphetamines this proved to be a lie; the police were two days late because he had been informed about the raids and was 15 steps ahead of police ; everything was for his personal use, and he weighed his own drugs with the scales this was shown to be a lie; the tick sheets related to people who owed him money from back when he was a fuckhead ; the large largest amount of cannabis sold was one-quarter of an ounce for $100; and

4 4 (g) he denied supplying methylamphetamine and attempted to persuade police that a particular reference in the tick sheets was to cannabis and not methylamphetamine. Following his arrest, Mr Bull was issued with a notice to appear, and he subsequently pleaded guilty to the summary offences in the Magistrates Court. It was the case that on 5 August 2015, Mr Bull was convicted of driving offences and given immediate parole. That had the consequence that for a three-month period his trafficking was committed whilst he was on parole. The supply counts all related to methylamphetamine in quantities of an eight ball, half an ounce, quarter of an ounce and half an eight ball. Mr Bull s admissions extended the date of possible trafficking from that which was evident by the tick sheets, by about seven months, spanning the period from 15 December 2014 to mid-july 2015 (when the messages on Hubble s phone commenced). Counsel appearing for Mr Bull told the learned sentencing Judge that Mr Bull was under the influence of drugs at the time which is why he said what he did to the police at the time of the search. Personal Circumstances Mr Bull was about 22 to 23 years of age at the time of offending and 25 at sentencing. His Counsel told the learned sentencing judge that he had been educated to grade 10 and thereafter took up employment as a machinery operator at the Stanwell Power Station and a mine at Coppabella. While he was working at Coppabella, he was introduced to amphetamines during a period when he and his partner had separated and he became depressed. He has since reconciled with his partner who was expecting their second child. Their first child was then six years old. He had relocated to Mackay with his partner, removing him from the community where he lived and the users that he knew. It was his intention to re-enter the workforce once the criminal

5 5 proceedings had concluded. In that respect, the learned sentencing judge was provided with several references which can be summarised below. A letter from the clinical nurse from the Alcohol and Other Drugs Service revealed that Mr Bull had attended the an appointment in August 2016 and had been provided a motivational session including a cost benefit analysis. It was felt that Mr Bull did not require any further appointments at that stage. A reference from the Aboriginal and Torres Strait Islander Community Health Service was provided, revealing that Mr Bull had been in contact with them for several months prior to November He was to be a speaker at a community forum about the effects of the drug ice but did not feel confident that he could do so because it was too early in his rehabilitation. He had been in regular contact with them and had their continuing support in terms of not reoffending. A reference from the Mental Illness Fellowship of North Queensland was provided. This listed a number of steps which it was said that Mr Bull had made by way of a serious commitment to address his addiction including moving to Mackay, suspending his Facebook account, not having a mobile phone, reuniting with his partner, engaging in several episodes of counselling and in various ways with the community and his family. The conclusion was offered that Mr Bull was genuine in his efforts to stop using methylamphetamine and to commit to being an ex-user. It noted that he had the strong support of his extended family and partner and that his chances of rehabilitation looked very positive. Criminal and Traffic History Mr Bull s criminal history included wilful charges of wilful damage of police property and contraventions of domestic violence orders in 2014 and In 2015, there were drug offences

6 6 for possession of dangerous drugs and possession of utensils. In 2016, he was convicted of producing dangerous drugs and given a suspended sentence. Importantly, the criminal history reveals that Mr Bull was subject to a two-year probation order from 22 January That means he was not only on parole but also probation when a significant part of the trafficking occurred. Mr Bull s traffic history was not inconsequential. There were a series of traffic offences from as early as when he obtained his licence in 2009 including speeding offences, one at speeds more than 30 kilometres an hour above the speed limit, unlicensed driving and disqualified driving. It was an offence of disqualified driving for which he was given parole on 5 August Approach of the sentencing judge The learned sentencing judge noted Mr Bull s youth and the fact that he had engaged in trafficking in methylamphetamine and cannabis over a 12-month period. The sentencing remarks reveal the following matters were taken into account: (a) (b) (c) (d) (e) the fact that an unguarded comment made by Mr Bull during the search, enabled the police to demonstrate or prove that the trafficking period was longer than the tick sheets or communications would have indicated; the customer base was about 26, with sales of at least $47,710; that was identified from the tick sheets alone, but did not necessarily indicate the totality of sales; that he had lied to police and was not cooperative with the administration of justice at the outset; the sales evident from the tick sheets suggested that he was selling small quantities of drugs to people who were end users; however, there were records suggesting sales in larger quantities, and discussions on the Facebook messages that suggests acts preparatory to larger sales or supplies; his personal circumstances, including his education and his relationship with his partner, and the use of drugs leading to the point where he became involved in trafficking; 1 Appeal Book 42.

7 7 (f) (g) (h) (i) (j) (k) the criminal history and traffic history, and the fact that three months of the trafficking occurred while he was on parole; the learned sentencing judge observed that it had been submitted to him that that was a serious aggravating feature of your conduct ; 2 that since Mr Bull s arrest he had taken steps to gain assistance with a view to rehabilitating himself, and that his partner was trying to influence him to be responsible and stay away from drugs; he had moved himself to Mackay as part of that effort, and the references spoke of his attempts to rehabilitate, and his recent behaviour and character which was suggestive of remorse; the guilty plea was indicated at an early stage, notwithstanding your dissembling and lies to police at the time of your arrest, which does not speak well for you ; the seriousness of the offending and the seriousness of the conduct at the time of his arrest, and the fact that the trafficking was when he was on parole; the need for personal and general deterrence, particularly in the circumstances of young people trafficking in drugs such as methylamphetamine; and the fact that it was common ground that a head sentence of five years was appropriate. In relation to setting a parole eligibility date, the learned sentencing Judge said the following: Submissions The focus of submissions was with respect to what term should be served by you by way of imprisonment and whether your sentence might be suspended or be the subject of a parole eligibility date. Because of your relative youth, the circumstances that you have had a history of using drugs in the past, not overlooking the efforts you have made at rehabilitation but taking into account also that there was prior offending and also offending when on parole, I favour the imposition of a parole eligibility date. It will provide you with the assistance of some supervision and guidance when you are released from prison and also provide the community with some confidence that you are being supervised. In the view I take, you should be eligible for parole after you have served 18 months of your sentence which is considerably less than the one-third well, somewhat less than the one-third. And that is to take account of your recent cooperation with the administration of justice. For Mr Bull, it was submitted that the Crown prosecutor led the learned sentencing judge into error by not properly characterising the level of Mr Bull s substantial cooperation, and inadequate 2 The learned sentencing judge did not advert to the fact that Mr Bull also was in breach of his probation order for six months of the trafficking. In that sense Mr Bull was treated generously.

8 8 recognition was given to the rehabilitation undertaken by Mr Bull. It was said that significant steps had been taken by way of rehabilitation which included: (i) (ii) (iii) (iv) (v) removing himself from the community and relocating to Mackay; engaging with the Aboriginal and Torres Strait Islander Community Health Service; undertaking counselling and performing community work in conjunction with the Mental Illness Fellowship North Queensland; the development of insight into his foolish behaviour, with the assistance of his family; ceasing the use of any dangerous drugs; and (vi) maintaining a good employment history. 3 It was contended that the Crown prosecutor s submission failed to properly direct the learned sentencing judge to the extent of cooperation provided by Mr Bull and how that should be reflected in the sentence. It was contended that the reference to the admissions made at the time and his cooperation otherwise diminished its effect. It was said that led the learned sentencing judge into error. For the respondent, it was submitted the Mr Bull s assistance in the administration of justice required recognition but not such that it attracted special leniency. His trafficking activities were well captured in the tick sheets and the data from the ipad as well as the presence of the cannabis plant and the drug related items. The admissions produced a lengthier period of trafficking but did not extend to detailing the nature of it beyond other evidence which has been seized. It was submitted that there was adequate recognition of the rehabilitation and specific reference made to the references which had been tendered. Discussion In my view, the contentions advanced on behalf of Bull should not be accepted. It is true that he made a form of admission at the time of his arrest and that the admission permitted an extension 3 Applicant s outline, paragraph 12.

9 9 of the trafficking period with which he was charged; however, that was only limited. The admission was of the tick sheets that started: A year ago. A year or two. The Crown extended the period of trafficking back one year prior to the search. However, that was only six months more than was revealed by the tick sheets and the messages on the ipad. Given what was said, could have taken the period even further, the selection of the time period was somewhat generous. Further, the judge characterised this as an unguarded comment. I agree with that view which tells against the submission made before this Court that it was a full and frank admission. As well, the learned sentencing judge referred to the value of the sales only by reference to the $47,710 revealed in the tick sheets and did not extrapolate the sale figure over the extra six-month period. In that respect also, Mr Bull was treated somewhat generously. Further, the admission was accompanied by a series of lies told to police which did not exhibit cooperation with the administration of justice. Mr Bull lied about having a mobile phone, dealing in amphetamines, supplying methylamphetamine and the significance of some of the entries in the communications about the supply of drugs. In my view, that characterises the level of cooperation in the way submitted by the Crown, namely, that whilst it called for recognition, it did not constitute the level that would attract special leniency. 4 Further, whilst the evidence of rehabilitation was to Mr Bull s credit, several things can be said about it. First, there was no evidence that he had actually ceased to use dangerous drugs. Certainly, it is true to say that the references from the Aboriginal and Torres Strait Islander Community Health Service and Mental Illness Fellowship North Queensland, each of which was based on self-reporting, suggested that he was making genuine and concerted efforts to do so. However, there were no drug tests or other forms of empirical evidence which would support the view that he had actually ceased to use drugs. Secondly, his Honour took into account the steps 4 See AB v The Queen (1999) 198 CLR 111.

10 10 towards rehabilitation and, in my respectful view, properly characterised them as being attempts at rehabilitation rather than success in that regard to the point of complete rehabilitation. Thirdly, the rehabilitation efforts have to be tempered against the seriousness of the type of offending, namely, trafficking in a schedule 1 drug and, specifically, methylamphetamine. The learned sentencing judge was, in my respectful view, quite right to emphasis the aspect of general deterrence and denunciation, particularly, in respect of this particular dangerous drug. It is well recognised that primacy is usually given to general deterrence in sentencing in trafficking cases. 5 References to R v Challacombe; 6 R v Saggers 7 and R v McAway 8 demonstrates that the parole eligibility date at 18 months cannot be said to be manifestly excessive. Challacombe involved a youthful offender trafficking in MDMA and methylamphetamine over a period of about five months. The sales were at a relatively low level and the business turnover was between $24,000 and $30,000. The offender came from a good family, had a good work history and a positive work reference. He was a drug user, though not a drug addict. He had made efforts to rehabilitate himself. The sentence of five years imprisonment with parole eligibility after 18 months was not disturbed on appeal. Saggers involved a 25 year old offender with 25 customers; trafficking in methylamphetamine over a three and a-half year period at a level between wholesale and retail. The trafficking operation was, therefore, on a larger scale than in Mr Bull s case. There were distinguishing mitigating features as the offender, in that case, was in an abusive relationship, had suffered sexual assault while drugged and had lost her baby. Her drug use commenced as a result. She was diagnosed with PTSD and secondary protracted bereavement. At the time of sentencing, she had re-established contact with her parents and had good references which showed she was well 5 See, for example, R v Tilley; Ex parte Attorney-General [1999] QCA 424; R v Willoughby [2009] QCA 105 at [48]. 6 [2009] QCA [2016] QCA [2008] QCA 401.

11 11 on her way to rehabilitation. She received a sentence of five years imprisonment, suspended after 12 months. Taking into account the eight months pre-sentence custody which could not be declared, the term of imprisonment was, effectively, five years and eight months, suspended after 20 months. McAway involved a 19 to 20 year old offender trafficking in ecstasy for a period of six months. She was above the level of a street dealer, but well down the chain of supply. The turnover of drugs of the trafficking operation was about $18,000 for a profit of $9,000. The trafficking count turned solely on her admissions. She had no prior convictions and cooperated with the authorities, giving the names of others in the drug trade and pleading guilty at an early stage. She had good prospects of rehabilitation. The sentence of five years imprisonment with parole eligibility at 18 months was said to be at the top of the appropriate sentencing range in that case, but not manifestly excessive. However, in McAway, unlike Mr Bull, the offending was not while on parole and probation and it was for a lesser period than is the case here. As was said in Barbaro v The Queen: 9 Sentencing an offender is not, and cannot be undertaken as, some exercise in addition or subtraction. A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and conflicting features. The sentence cannot, and should not, be broken down into some set of component parts. As the plurality said in Wong v The Queen, [S]o long a sentencing judge must, or may, take account of all the circumstances of the offence and the offender, to single out some of those considerations and attribute special numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform. Further, as was said by Keane JA in Challacombe: 10 On the applicant s behalf reference was made to a number of cases where arguably more serious offending had attracted a penalty similar to that imposed on the applicant. It is beside the point to refer to cases which suggest that a more lenient approach was taken in other cases where the 9 (2014) 253 CLR 58 at [34]. 10 [2009] QCA 31 at [13].

12 12 material facts were different. To approach the matter in this way is to fail to recognise two important points: first, that the question for this Court was whether the sentence was outside the range of proper sentences which might have been imposed on the appellant; and secondly, that the cases to which the applicant refers involved factual differences leading to sentences which reflect those differences within a broad sentencing discretion. Even though Mr Bull s application was focused only on the parole eligibility date, it is the whole of the sentence which calls for comparative consideration. The imposition of a parole eligibility date is but part of the overall sentence imposed, and the exercise of discretion involved in setting it is affected by considerations touching the overall sentence. For Mr Bull to succeed, it is necessary, not merely to show some disparity with sentences in like cases, but that the sentence is so marked as to compel the conclusion that there must have been a misapplication of principle. 11 The comparable cases do not establish that to be so. I am unpersuaded that it can be demonstrated that the imposition of 18 months for the parole eligibility date was, in Mr Bull s case, manifestly excessive. I would refuse the application. GOTTERSON JA: I agree. HENRY J: I also agree. GOTTERSON JA: The order of the Court is that the application of leave to appeal against sentence is refused. Adjourn the Court. 11 Wong v The Queen (2001) 207 CLR 584 at 605, [58].