[2020] QCA 11

COURT OF APPEAL

FRASER JA
MORRISON JA
BODDICE J

CA No 340 of 2018
SC No 56 of 2018

THE QUEEN

v

WAINSCOTT, Anthony Peter	Applicant

BRISBANE

THURSDAY, 6 FEBRUARY 2020

JUDGMENT

BODDICE J:  On 8 October 2018, the applicant pleaded guilty to five indictable offences, being: one count of trafficking in dangerous drugs, one count of possessing a dangerous drug in excess of two grams, two counts of possessing a dangerous drug and one count of wilful damage.  The applicant also pleaded guilty to four summary charges, being: two charges of possession of a thing used in connection with the smoking of a dangerous drug, one charge of possession of a thing for use in connection with the smoking of a dangerous drug and one charge of possession of a dangerous drug.
On 20 November 2018, the applicant was sentenced to imprisonment for nine years on the trafficking charge, and concurrent, lesser terms of imprisonment in respect of each of the remaining indictable offences and each of the summary charges.  No parole eligibility date was set, with the result that the applicant was eligible for parole after serving 50 per cent of the period of imprisonment imposed in respect of the trafficking count.  The applicant seeks leave to appeal the sentence imposed with respect to the trafficking count.  The sole ground of appeal relied upon is that the sentence imposed was affected by specific error, namely, that the sentencing judge impermissibly had regard to the irrelevant considerations that the applicant could have had his bail revoked prior to sentence, so as to commence his term in custody at an earlier time.
The trafficking count related to the dangerous drug, methylamphetamine.  The applicant, by his plea of guilty, admitted that he had trafficked in that drug for about eight months, at a wholesale level, for significant profit.  The trafficking operation had a small customer base but was conducted in a fairly sophisticated way.  Great care was taken to avoid detection.  Surveillance evidence established that, during the course of the trafficking period, the applicant was, from time to time, owed tens of thousands of dollars by others, due to his ability to provide wholesale quantities on a “tick” basis.  A financial analysis revealed the applicant must have profited to an extent of over $85,000.  A package, intercepted by police during the course of the trafficking operation, was found to contain 198.6 grams of pure methylamphetamine, being the subject of the count of possession of a dangerous drug in excess of two grams.  The remaining indictable offences and the summary offences related to items found in the course of the execution of search warrants.
The sentencing judge found the applicant’s conduct particularly serious, as it involved operating at a wholesale level over a fairly lengthy period.  The sentencing judge rightly observed that, having regard to the serious aspects of that offending, and a consideration of relevant authority, a sentence of 10 years, even allowing for the applicant’s cooperation by reason of his pleas of guilty, would be appropriate.  Such a sentence would result in an automatic declaration that the applicant had been convicted of a serious violent offence, necessitating that he serve at least 80 per cent of that sentence.
The sentencing judge also observed that, whilst the trafficking operation did not have a great number of customers, it resulted in a great amount of methylamphetamine being introduced into the local community for the applicant’s own profit.  Whilst the applicant had, in a letter to the Court, spoken of his conduct as a highly regrettable decision, his conduct did not involve some momentary error, nor a singular decision.  His conduct involved sustained offending of a cynical, selfish and greedy kind over a prolonged period.  The sentencing judge referred to the well-known damage methylamphetamine does to users within the community, as well as bringing misery to their families.
In determining the appropriate sentence, the sentencing judge observed that the applicant had no material criminal history; however, the applicant had committed an offence of driving a vehicle with an illicit drug present in his blood on 3 July 2018, a factor said to be relevant to the issue of rehabilitation.  The sentencing judge accepted that the applicant had, himself, been a user of methylamphetamine, which had developed into a dependency.  As a consequence, the applicant commenced to sell drugs in order to support that habit.  It was in that context that the applicant’s conduct had developed into a business of trafficking.  The sentencing judge observed, however, that the volume of the trafficking went far beyond what was necessary to support the applicant’s drug habit.
The sentencing judge had regard to a number of mitigating factors.  The sentencing judge noted the applicant had the support of family and had a genuine desire to lead a law abiding and productive lifestyle.  Whilst it was asserted that the applicant had been drug free for about 18 months, the sentencing judge found that his recent conviction for drug driving suggested otherwise, even accepting the drug in question was not methylamphetamine.  The sentencing judge accepted, however, that the applicant had, in that two year period, been largely law-abiding, with no suggestion of further offending of a similar kind.  The sentencing judge accepted that reference had been made to the receipt of professional guidance, the accessing of a rehabilitation program and to psychological assistance, but observed that that was of limited weight, as these attempts at rehabilitation did not commence until after the listing of the applicant’s sentence.  There was also no psychological report provided from the psychologist.
The sentencing judge accepted that there had been a lengthy delay between charging and sentence, much of which was not the fault of the applicant, and that it was appropriate for the Court to take into account that delay.  The sentencing judge found that the applicant’s conduct would justify a sentence of 10 years’ imprisonment, but that the appropriate sentence was nine years as contended for by the applicant’s counsel, having regard to that inordinate delay, the applicant’s subsequent largely good character, his endeavours to progress his rehabilitation, even though the evidence of that rehabilitation was not compelling, and the claim to have been drug-free was undermined by the drug driving conviction.  There were, however, other aspects supportive of rehabilitation, such as:  employment, a new relationship, fatherhood and the care of his disabled brother.  The applicant submits that, although the sentence for the trafficking count was in accordance with a specific submission made by the applicant’s counsel, the sentence imposed had regard to irrelevant and impermissible considerations, namely, that the applicant had chosen to remain on bail, rather than enter custody in advance.
A consideration of the sentencing remarks does not support a conclusion that the sentencing judge had regard to such an irrelevant consideration.  The sentencing judge’s observation that the applicant could have surrendered his bail at an earlier time, and thereby commence his period in custody, was made in the context of a consideration of all of the surrounding circumstances, including the inordinate delay to sentence in the context of attempts by the applicant to re-establish himself in the community.  Those observations did not in any way constitute taking into account irrelevant or impermissible considerations.  They did not form the basis for a decision not to set an earlier parole eligibility date.  There is no basis to conclude the reference to it might have adversely affected the exercise of the sentencing discretion.
The reduction in the head sentence from 10 years, with the avoidance of an automatic declaration that the applicant had been convicted of a serious violent offence, to a sentence of nine years’ imprisonment, with no specific earlier parole eligibility date being set, represented a sound exercise of the sentencing discretion.  Such a sentence properly reflected not only the consequence of the inordinate delay and the benefit of the applicant’s cooperation by his pleas of guilty, it properly reflected the other mitigating factors, including the applicant’s attempts at rehabilitation and his lack of relevant criminal history.  I would order that the application for leave to appeal be refused.
FRASER JA:  I agree.
MORRISON JA:  I also agree.
FRASER JA:  The order of the Court is that the application is refused.  I thank counsel for their assistance.