Trafficking in dangerous drugs and the application of the “extraordinary circumstances” principle

R v Nunn [2019] QCA 100 – Trafficking in dangerous drugs and the application of the “extraordinary circumstances” principle

In a decision by the Court of Appeal on 7 May 2019 and published on 28 May 2019, the Court again affirmed the “extraordinary circumstances” principle which is relevant when dealing with mature persons charged with trafficking in Schedule 1 dangerous drugs.

Traditionally, case law dictates that in circumstances where drug trafficking is large scale, the sentences which are imposed on mature offenders who have plead guilty range from 10 – 12 years imprisonment.

This recent decision indicates that the principle, is to be used only as a yardstick and not a starting point or limitation of the sentencing discretion which the Court is able to exercise.

 

The facts of the case

The applicant trafficking in methylamphetamine between 16 September 2015 and 25 February 2016 and committed other drug offences during that same period. The Supreme Court (the Court of first instance for cases of this nature) sentenced the applicant having regard to a 44 page set of facts, which included an extensive summary of the trafficking business.

The trafficking was conducted largely as a wholesale business, many of the applicant’s customers on supplied to their own customers. On the facts, it was evidence that the applicant controlled the business. The applicant and his co-defendant, supplied at least 2,319.85 grams of methylamphetamine. The drugs were distributed at the Sunshine Coast, Brisbane and Gladstone. A conservative estimate of the profits of their enterprise ranged from $308,622.00 and $454,253.00. The two defendants had unsourced incomes of $66,625.08 and $32,054.86 respectively.

 

The sentence

Her Honour summarised the circumstances of the applicant’s offending and his personal circumstances. Factors which Her Honour also considered where:-

• The applicant’s plea of guilty;
• The applicant’s business was intense, whole sale and successful and its geographical extent was considered an aggravating feature;
• The applicant’s good work history and the fact that he had done many courses in prison, which was to his credit;
• An apology letter of the applicant which articulated his remorse and apologised for the offending to the courts and to the community;

 

Her Honour also considered submissions that the drugs were taken for back pain. However, Her Honour noted that it was difficult to see a link between the applicant’s back pain and wholesale trafficking business. She also noted that the profits of the business were not consumed by drug addiction, but rather allowed the applicant to live comfortably. A letter was also provided to the court by a family member who outlined that the applicant had fallen in with “the wrong crowd”. Again, little weight was given to that material as it was at odds with the evidence before the Court that he was the boss of a drug business.

A sentence of 10 years imprisonment was imposed for carrying on a business in trafficking dangerous drugs. He was given shorter concurrent terms of imprisonment for seven additional drug related offences and one offence of failing to answer questions before the Crime and Corruption Commission.

When sentencing the applicant, Her Honour also had regard to the sentence imposed on the applicant’s co-accused being eight and a half years, with a parole eligibility date after one third of that sentence.

 

What is the “extraordinary circumstances principle?”

The submissions advanced on behalf of the applicant and by the Office of the Director of Public Prosecutions acknowledge the “extraordinary circumstances” principle which originated in the case of R v Feakes [2009] QCA 376:

 “My analysis of the comparable cases relied on by Feakes and the respondent in this application demonstrate that, absent extraordinary circumstances, in cases of trafficking in sch 1 drugs on a scale like the present offence, the sentence imposed on mature offenders who have pleaded guilty is ordinarily in the range of 10 to 12 years imprisonment. Younger offenders without a significant criminal history and with excellent rehabilitative prospects may be sentenced to a slightly lesser term of imprisonment in the range of eight to nine years;”

This analysis has been referred to in numerous decisions concerning similar offending. However, what is also clear in those subsequent decisions, is that this principle is to be used only as a yardstick, and the circumstances of the offence and the offender should be considered during the exercise of the sentencing discretion. Ultimately the principle provides a mechanism in which to examine the appropriateness of a sentence, rather than acting as a starting point prescribing the boundaries of the sentence.

 

The appeal

The application for leave to appeal the sentence imposed on the applicant was granted. The Court of Appeal after examining Her Honour’s sentencing remarks that Her Honour “… erred in that part of the reasoning in which her Honour started from a predetermined range of sentences with fixed boundaries for a generally described kind of offence and offender.”, on that basis that sentenced was not warranted at law pursuant to section 668E (3) of the Criminal Code 1899.

In those circumstance the Court of Appeal is then required to pass sentence and substitute that sentence with the sentence at first instance. Having regard to the comparable sentences before the Court, it was the Court’s view that the head sentence of 10 years was appropriate having regard to the nature and circumstances of the offence.

Simply put, the original sentence imposed was correct but the reasoning from which it was derived was not.

 

Have you been charged with a drug offence?

It is important for people charged with any drug offence in Queensland to ensure they seek experienced legal representation.

Cases involving the possession of dangerous drugs, supply of dangerous drugs, production of dangerous drugs or trafficking and importation of dangerous drugs are complex and the penalties are severe.

It is extremely important that clear, concise and accurate legal advice is provided from the earliest opportunity.

If you are charged with a criminal offence in Queensland, please do not hesitate to contact us on (07) 3221 4999 for a free 20 minute consultation. If you require urgent and immediate legal advice, please contact our 24/7 CRIMELINE on 0488 999 980