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[2007] QCA 273
Court of Appeal (Qld)
2007-08-24
Williams and Keane JJA and Mullins J, Separate, reasons for judgment of each member of the Court, Williams and Keane JA, concurring as to the orders made
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Assurson [2007] QCA 273
PARTIES: R v ASSURSON, Hev (applicant/appellant)
FILE NO/S: CA No 72 of 2007 / SC No 561 of 2006
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: Supreme Court at Brisbane
DELIVERED ON: 24 August 2007
DELIVERED AT: Brisbane
HEARING DATE: 17 July 2007
JUDGES: Williams and Keane JJA and Mullins J / Separate reasons for judgment of each member of the Court, Williams and Keane JA concurring as to the orders made, Mullins J dissenting in part
ORDER: 1. Grant leave to appeal against sentence 2. Allow the appeal to the extent of: (a) deleting from the sentence imposed on the count of trafficking the serious violent offence declaration (b) fixing the applicant's parole eligibility date as 14 September 2012 3. Otherwise confirm the sentences imposed
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant pleaded guilty to various drug related offences, including trafficking – where sentence of nine years imprisonment imposed – where head sentence, if applicant had not pleaded but instead convicted by jury, would be 12 to 13 years imprisonment, with an automatic serious violent offence declaration attached, requiring 80 per cent of sentence to be served – where plea came at late stage – where serious violent offence declaration imposed by learned sentencing judge without request by either counsel, to achieve a "just and equitable sentence" – whether making of declaration was warranted – whether sentencing discretion miscarried / Corrective Services Act 2006 (Qld), s 184 / Penalties and Sentences Act 1992 (Qld), s 160C(5), s 161B(3) / Markarian v The Queen (2005) 79 ALJR 1048, cited / R v Elizalde [2006] QCA 330 ; CA No 158 of 2006, 1 September 2006, cited / R v McDougall & Collas [2006] QCA 365; CA Nos 83 & 94 of 2006, 22 September 2006, cited / R v O'Brien [2006] QCA 482 ; CA No 259 of 2006, 20 November 2006, cited / R v Saunders [2007] QCA 93 ; CA No 4 of 2007, 23 March 2007, applied / R v Taylor [2006] QCA 459 ; CA No 162 of 2006, 10 November 2006, cited
COUNSEL: A W Moynihan SC for the applicant/appellant / B G Campbell for the respondent
SOLICITORS: Legal Aid Queensland for the applicant/appellant / Director of Public Prosecutions (Queensland) for the respondent
WILLIAMS JA: The applicant seeks leave to appeal against a head sentence of nine years imprisonment with a declaration that he was convicted of a serious violent offence imposed after he pleaded guilty to trafficking in methylamphetamine, cocaine, and 3,4-methylenedioxymethamphetamine and other drug offences. The critical submission on behalf of the applicant was that the making of a serious violent offence declaration meant the sentence was manifestly excessive. Because of the declaration the applicant's parole eligibility date would be after he had served 7.2 years in custody.
In the course of conducting a covert operation an undercover police operative arranged to purchase an ounce of cocaine (27.360 grams; 5.171 grams pure) from a man named Taylor. The operative and Taylor travelled to Kangaroo Point where they met the applicant who gave the cocaine to Taylor, who in turn sold it to the police operative for $5,400. That constituted the count of supply to which the applicant pleaded guilty.
Thereafter investigating police placed a listening device in the unit in which the applicant resided. Subsequently a video recording device was also installed. The evidence establishing the trafficking count came almost solely from conversations recorded on those listening devices. The evidence established trafficking over a six week period between 26 November 2004 and 7 January 2005. The trafficking involved the applicant receiving an estimated $29,900. Over that six week period the applicant was able to source and wholesale significant quantities of cocaine, speed and ecstasy, primarily in tablet form. The applicant was heard considering expanding his business into producing amphetamines where the profit margin was potentially significantly greater.
The prosecution case was that the $29,900 represented profit and not gross receipts. In the conversations the applicant indicated he was still owed significant amounts for drugs he had supplied on credit; in a conversation on 14 December 2004 he indicated he was owed $15,000.
The material indicated that on 14 December 2004 a sale of 200 tablets was made and the purchaser was asked if he knew anyone who wanted "imports" as the applicant wanted to move "1,000 at $16.00 each". In a further conversation on 15 December 2004 the applicant confirmed he had a source who had 1,700 tablets and offered them in lots of 250 at $17.00 each. There were similar conversations recorded on 16 December 2004, 17 December 2004, 21 December 2004, 23 December 2004, 24 December 2004, 25 December 2004, 26 December 2004, 28 December 2004, 29 December 2004, 31 December 2004, 1 January 2005, 5 January 2005, and 7 January 2005. It is not necessary to record in detail the terms of those conversations.
In the conversation on 17 December 2004 the applicant was proposing to source between 3,000 and 4,000 tablets for New Year's Eve. On that same occasion there were extensive discussions concerning pre-cursor chemicals in 25 litre quantities. A price of $260,000 was discussed.
"Counsel agreed that in the present case had there been a trial and a conviction a range of 12 to 13 years' imprisonment would have been appropriate and I agree in that view. It then becomes a question of how much reduction you are entitled to for your mitigating circumstances…
…
By the lateness of your plea you have forfeited a considerable amount, though not all, by no means all, of the benefit of pleading guilty. You are, as I have said, entitled to the benefit of that by a reduction, which I have accepted here as of the order of three years on a head sentence.
That result I reach in this way. If you were sentenced after a trial to the bottom of the range, say 12 years, you would be eligible for release after 9.6 years. Your counsel contended that the mitigating factors, including your plea of guilty, should be reflected in the present case by a sentence of nine years with eligibility for release after four and a half years…
That, however, would it seems to me represent far too much of mitigation. It would in effect mean an eligibility for release on parole at a point barely over half what would be the release point had you been found guilty after a trial. Your plea of guilty does not merit such a large reduction in your sentence, even when combined with the other factors to which I have referred.
It seems to me that the range on the facts of the present case … would be about eight and a half to 10 years' imprisonment with a declaration that the offence is a serious violent offence."
It was in the light of that reasoning that the head sentence referred to above was imposed. Lesser custodial sentences were imposed, to be served concurrently, with respect to the other charges to which the applicant pleaded guilty.
It will be immediately obvious that the sentencing judge did not give specific consideration to the circumstances of the trafficking charge in determining whether or not a declaration that it was a serious violent offence should be made. Rather, such a declaration was made in order to fix the parole eligibility date. In so acting the sentencing judge obviously believed that he was applying the reasoning of the majority in Markarian v The Queen (2005) 79 ALJR 1048 where the sentencing process was referred to as an integrated process directed to the determination of a just sentence. It was there said that in carrying out that exercise the sentencing court could take into account all relevant considerations. That approach was referred to by this Court in R v McDougall & Collas [2006] QCA 365 when considering circumstances in which a serious violent offence declaration could be made. But in the later case of R v Saunders [2007] QCA 93 this Court held and made it clear that in exercising the discretion under s 161B(3) of the Penalties and Sentences Act 1992 (Qld) the court must have regard to whether the circumstances of the offence are such that the making of the declaration is warranted, and must provide reasons for so holding. Saunders presented a fairly similar problem to that which now confronts this Court. The sentencing judge in that case had said:
"Since that I am satisfied that a notional starting point for the sentence is 10 years or perhaps slightly more for the criminality involved in this matter, which would carry an automatic serious violent offender declaration, it is an easier solution to impose an actual head sentence that is less than 10 years but with a serious violent offender declaration which is discretionary in that instance, to take into account the totality principle, the fact that you have spent time in custody that cannot be formally taken into account, the plea of guilty and the other matters in your favour … and the fact that you have committed a breach of suspended sentence."
"Once he concluded that the head sentence should be less than 10 years it followed that any sentence to be imposed would not attract an automatic declaration. A discretion under s 161B(3) thus has to be exercised upon due consideration of all material facts. His Honour did not appear to consider whether the relevant facts merited the making of the declaration. Rather, he applied s 161B(3) in order to achieve the term and parole release date which he regarded as appropriate."
The same error was made by the sentencing judge in the present case.
It follows that the sentencing discretion miscarried and it is necessary for this Court to re-exercise it.
As already pointed out it was conceded before the sentencing judge that the appropriate range after a trial was 12 to 13 years imprisonment. In those circumstances it was not seriously challenged in this Court that after this applicant's plea of guilty a head sentence of nine years imprisonment was clearly within range. A sentence of nine years imprisonment after the plea was clearly within range. It is a sentence which has appropriate relativity with the sentences imposed in Taylor [2006] QCA 459, Elizalde [2006] QCA 330, O'Brien [2006] QCA 482 and Saunders. In so concluding this Court has taken into account the fact that the trafficking was over a short period of time and the hard evidence was that only a relatively small amount of profit was made from the trafficking. Clearly the applicant had ambitions to become a bigger dealer and if his ambitions had materialised he could have made a much greater profit. But as his business was cut short by his arrest he should not be punished for what might have been achieved if his trafficking had continued for an extended period. That sentence should commence on 14 March 2007, the date of the original sentence.
Before the sentencing judge neither counsel for the prosecution nor counsel for the applicant addressed the question of the making of a serious violent offence declaration. The prosecution did not ask for it, and did not specifically refer the court to any circumstances which would warrant the court making such a declaration. Because the prosecution did not ask for it there was no response on that topic from counsel for the applicant.
In oral submissions in this Court reference was made by counsel for the respondent to the level of trafficking and the use of and threat of the use of violence in order to obtain payment for drugs supplied as justifying the making of such a declaration in this particular case. But as the matter was not addressed at first instance it would not be appropriate for this Court to rely on considerations such as that in order to justify the making of a serious violent offence declaration. As it was not asked for at first instance the applicant has been deprived of the opportunity of placing material before the court on that issue. The reference to violence in the conversations is not without significance but that matter should have been investigated further if the prosecution wanted to rely on it as a matter warranting the making of a declaration. For those reasons this Court ought not at this stage make such a declaration.
If no further order was made the applicant would be eligible for parole after serving half the sentence, that is after serving four and a half years: s 184(2) of the (Qld). As the sentencing judge pointed out that represents too big a reduction for mitigation based on a relatively late plea of guilty. This Court in pointed out that a sentencing court could, for good reason, exercise the power conferred by legislation postponing eligibility for parole beyond the half-way point; that is now provided for by s 160C(5) of the and s 184(3) of the . That was the approach adopted by this Court in . The "good reason" for postponing the parole eligibility date in this case is established by the extent of trafficking, the fact that more than one Schedule 1 drug was involved, the fact that the applicant was prepared to resort to violence to recover payment for drugs supplied, and the fact that he re-offended whilst on bail.
(i) Grant leave to appeal against sentence;
(ii) allow the appeal to the extent of:
(a) deleting from the sentence imposed on the count of trafficking the serious violent offence declaration;
(b) fixing the applicant's parole eligibility date as 14 September 2012;
(iii) otherwise confirm the sentences imposed.
KEANE JA: I agree with the reasons of Williams JA and with the orders proposed by his Honour.
In my respectful opinion, Williams JA was correct in concluding that the learned sentencing judge erred in using the "blunt instrument" of a serious violent offence declaration under s 161B(3) of the Penalties and Sentences Act 1992 (Qld) to fix the applicant's parole eligibility date. That was contrary to this Court's decision in R v Saunders.1
As this Court observed in R v McDougall & Collas,2 eligibility for parole may be postponed under s 160C(5) of the Penalties and Sentences Act and s 184(3) of the Corrective Services Act 2006 (Qld). These provisions, which may be invoked where there is good reason to do so, enable the imposition of a sentence more appropriate to the specific circumstances of the particular case than the automatic imposition of a requirement that 80 per cent of the sentence be served in actual custody where a serious violent offence declaration is made.
In this case, it falls to this Court to re-sentence the applicant afresh. In this regard, I agree with the sentence proposed by Williams JA.
In my respectful opinion, this is a case in which there is good reason to postpone the parole eligibility date which would otherwise apply to the applicant until 14 September 2012. Although, as Mullins J observes, the evidence of the use of personal violence by the applicant in the course of his business was meagre, that evidence did come from the applicant's own mouth and was uncontradicted. The applicant's offending thus stands in a worse light than that of a trafficker in dangerous drugs for whom personal violence is not one of the ordinary exigencies of business. Further, the circumstance that the applicant was found to be in possession of dangerous drugs while on bail in relation to the offences of present concern is a matter of aggravation which is suggestive of a need for a sentence reflecting the special importance in this case of personal deterrence. There are, therefore, good reasons for postponing the parole eligibility date which would otherwise have applied to the applicant.
[30] MULLINS J: I agree with Williams JA that the learned sentencing judge was in error in failing to consider whether the circumstances of the offence of trafficking committed by the applicant was such as to warrant the imposition of a serious violent offence declaration: R v McDougall & Collas [2006] QCA 365 at paragraph [19] and R v Saunders [2007] QCA 93 at paragraph [21]. I also agree with the reasons of Williams JA for concluding that it is not appropriate in this matter for the Court on appeal to make the serious violent offence declaration.
[31] The prosecutor who appeared before the sentencing judge submitted that the sentence for trafficking should be in the vicinity of nine years' imprisonment with no earlier date for eligibility for parole than that which would apply under the Corrective Services Act 2006 (Qld). Defence counsel before the sentencing judge joined in this submission. Counsel who appeared on the sentence were not those who appeared on the application in this Court.
[32] The sentencing judge was in no way bound to accept the joint submission as to the appropriate sentence for trafficking for the applicant, but as Williams JA points out in his reasons (at paragraph [19]), a head sentence of nine years' imprisonment was within range. Where I differ from Williams JA, however, is on whether the date for eligibility for parole should be postponed.
[33] Under s160C(5) of the Penalties and Sentences Act 1992 (Qld) the sentencing judge had a discretion as to whether or not to fix the date the applicant would be eligible for parole. In the absence of the fixing of an earlier or later parole eligibility date, the applicant’s parole eligibility date in accordance with s 184 of the Corrective Services Act 2006 would be the day after he had served half of the period of imprisonment to which he had been sentenced.
[34] The judgment of the Court in McDougall & Collas at paragraph [21] sets out the types of considerations that may result in postponing the date of eligibility for parole:
"The considerations which may lead a sentencing judge to conclude that there is good reason to postpone the date of eligibility for parole will usually be concerned with circumstances which aggravate the offence in a way which suggests that the protection of the public or adequate punishment requires a longer period in actual custody before eligibility for parole than would otherwise be required by the Act having regard to the term of imprisonment imposed. In that way, the exercise of the discretion will usually reflect an appreciation by the sentencing judge that the offence is a more than usually serious, or violent, example of the offence in question and, so, outside 'the norm' for that type of offence." (footnotes omitted)
[35] On the facts of this matter which are set out in full in the reasons of Williams JA, I am not persuaded that the applicant's offence of trafficking is outside "the norm" for that type of offence. I accept that an inference can be drawn that the applicant's trafficking must have commenced prior to the period of six weeks in respect of which the prosecution had evidence against the applicant of actual trafficking from the conversations recorded by listening devices. The aggravating aspects of the applicant's trafficking are the variety of drugs with which he was involved, the ease with which he appeared to be able to source wholesale quantities of those drugs and the frequency of transactions during the period of actual trafficking. Although the applicant appeared intent on graduating to more serious offending, that was not done before he was arrested. The evidence of violence used by the applicant is very limited. There is one telephone call in which the applicant is speaking to an associate about a debtor whom he was going to "hit" if he did not turn up with the amount owed and made a threat to get the president of a motorcycle gang involved. There is a second telephone call in which the applicant boasts of taking an associate who owed someone else $1,000 to a back street and that he "assaulted" him. There are no details of the assault and no other evidence was before the court of the nature of any such assault. The telephone calls show that the applicant was, at least, prepared to talk in terms of using violence.
[36] The offence that the applicant committed whilst on bail of possession of methylamphetamine was in respect of 26 grams of that drug of 7.5 per cent purity that the respondent on the application before this Court properly conceded was consistent with being held for personal use rather than wholesale use.
[37] The sentencing considerations that were relevant in Saunders that resulted in the postponement of the date of eligibility for parole are distinguishable from this matter. Saunders was 40 years old when sentenced in December 2006 for trafficking in MDMA and methylamphetamine between 8 October 2003 and 31 March 2004 and for a number of other drug offences committed during the same period. He had been convicted in July 2001 of possession of cannabis sativa for which he was sentenced to 15 months’ imprisonment suspended after four months for an operational period of two years. In August 2006 he was sentenced in the District Court to imprisonment of three years and four months on counts of assault occasioning bodily harm and robbery with actual violence committed in May 2002. He was also sentenced in November 2006 to imprisonment of four years and six months concurrent with existing terms of imprisonment for conspiring to import pseudoephedrine. A parole eligibility date was set at 17 August 2009. The sentencing judge for the trafficking and other drug offences had to deal with the activation of the suspended sentence that had been imposed in July 2001. The prosecutor had submitted that the balance of the suspended sentence should be served cumulatively with the other sentences and a parole eligibility date of 17 July 2013 fixed. In selecting the sentence of eight years, the sentencing judge took into account the totality principle, the time that Saunders had spent in custody that could not formally be taken into account and the breach of the suspended sentence.
[38] On appeal in Saunders, the Court set aside the serious violent offence declaration, but reimposed a concurrent sentence of eight years’ imprisonment for trafficking and fixed the date of eligibility for parole as 25 March 2013 which was the parole release date that would have applied automatically from the making of a serious violent offence declaration. The reasons expressed for doing so (at paragraphs [23] and [24] of Saunders) were that the postponement of the date of eligibility for parole took into account the consequences of a concurrent sentence being imposed, what the eligibility for parole date for Saunders was prior to the imposition of that sentence for trafficking and the overall criminality of the offending conduct.
[39] I would therefore grant the application for leave to appeal and delete the declaration that the applicant was convicted of a serious violent offence, but otherwise affirm the sentences imposed by the sentencing judge on 14 March 2007.
R
Assurson
(2005) 79 ALJR 1048
In the light of all that the sentencing judge was clearly justified in concluding that the applicant was involved in substantial trafficking over a period of five to six weeks. The largest transaction discussed, though not carried into effect, involved a potential profit of $200,000 with the possibility of netting $1,000,000. On the evidence accepted by the sentencing judge the applicant was a producer as well as a dealer, and clearly lived off the proceeds of drug dealing. The evidence was that he was a reasonably substantial user of drugs.
Of particular significance is the fact that in a conversation on 24 December 2004 the applicant referred to someone owing him $10,000 and stated he was prepared to assault that person in order to recover the money. Then in a conversation of 1 January 2005 the applicant told the person to whom he was speaking that he had assaulted the man named Taylor because he owed an associate $1,000.
The applicant was arrested in mid-January 2005 and whilst on bail the police located in the premises at which he was then residing a bag containing 26.299 grams of methylamphetamine of which 1.966 grams was pure.
The applicant pleaded guilty to the count of trafficking, a count of supplying cocaine, a count of producing methylamphetamine, a count of possessing a hydraulic press used in the supply of methylamphetamine, and possession of methylamphetamine. However that plea was only entered at a relatively late stage.
The applicant had a relatively minor criminal history. He was convicted in New South Wales and fined and placed on 18 months supervision for possessing a restricted substance on 2 June 2004.
The applicant was aged 23 at the time of the offences and 26 when sentenced.
Relevantly in his sentencing remarks the judge said:
In the circumstances this Court should fix the parole eligibility date as 14 September 2012, that is after the applicant has served five and a half years in custody. If the sentence is so constructed the applicant has received a significant reduction for the mitigating factor of his plea, but the effective sentence reflects the seriousness of the crimes he has committed.
In the circumstances the following orders should be made: