Court of Appeal (Qld)|2009-09-25|Before: McMurdo P, Muir JA and Cullinane J, Separate reasons, for judgment of each member of the Court, each concurring as to the orders, made
McMurdo P, Muir JA and Cullinane J, Separate reasons, for judgment of each member of the Court, each concurring as to the orders
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY
EXCESSIVE OR
INADEQUATE – where applicant charged with one count of trafficking, six
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLYEXCESSIVE ORINADEQUATE – where applicant charged with one count of trafficking, sixcounts of supplying a dangerous drug andone count of possessing a thing used inconnection with trafficking – where applicant pleaded guilty and wassentenced to ahead sentence of nine years imprisonment for the traffickingoffence and to other lesser sentences – where other members ofthe samedrug distribution network captured in the same undercover operation sentenced tohead sentences of eight years imprisonmentand six and a half years imprisonment– where applicant submitted there was little, if anything to distinguishthe conductof these members from his offending conduct – whether sentencemanifestly excessiveCRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– GROUNDS FOR INTERFERENCE – PARITY BETWEEN
CO-OFFENDERS –
where applicant charged with one count of trafficking and nine counts of
supplying a dangerous drug –
where applicant pleaded guilty and received a
head sentence of 11 years imprisonment for the trafficking offence and various
other
concurrent sentences – where 11 year term of imprisonment was
ordered to be served cumulatively upon remainder of earlier
terms of
imprisonment – whether lack of parity between applicant’s sentence
and that of his co-offender – whether
primary judge had sufficient regard
to the totality principle
Criminal Code 1899 (Qld), s 16
Penalties and Sentences
Act 1992 (Qld), s 156A, s 161B, Part 9A
Mill v The Queen (1988) 166 CLR 59
[1988] HCA 70,
cited
R v Bradforth [2003] QCA
183, considered
R v Burgess [1997] QCA
385, cited
R v Do [2000] QCA
135, considered
R v George [2001] QCA
135, considered
R v Kiripatea [1991] 2 Qd R 686
[1990] CCA 257,
cited
R v Klasan [2007] QCA
268, considered
R v Kovacs [2009] QCA
52, distinguished
Judgment (74 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where applicant charged with one count of trafficking, six counts of supplying a dangerous drug and one count of possessing a thing used in connection with trafficking - where applicant pleaded guilty and was sentenced to a head sentence of nine years imprisonment for the trafficking offence and to other lesser sentences - where other members of the same drug distribution network captured in the same undercover operation sentenced to head sentences of eight years imprisonment and six and a half years imprisonment - where applicant submitted there was little, if anything to distinguish the conduct of these members from his offending conduct - whether sentence manifestly excessive
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS - where applicant charged with one count of trafficking and nine counts of supplying a dangerous drug - where applicant pleaded guilty and received a head sentence of 11 years imprisonment for the trafficking offence and various other concurrent sentences - where 11 year term of imprisonment was ordered to be served cumulatively upon remainder of earlier terms of imprisonment - whether lack of parity between applicant's sentence and that of his co-offender - whether primary judge had sufficient regard to the totality principle
A Boe (sol) for the applicant in Appeal No 97 of 2009
[13]
C W Heaton for the applicant in Appeal No 108 of 2009
[14]
Boe Lawyers for the applicant in Appeal No 97 of 2009
[15]
Legal Aid Queensland for the applicant in Appeal No 108 of 2009
[16]
Director of Public Prosecutions (Queensland) for the respondent
[17]
[2] MUIR JA: The applicants, Ioan Runcan and Marcel Bobonica, were charged on the same indictment with six counts of supplying a dangerous drug (counts 3 to 8) and with one count each of trafficking in dangerous drugs (Runcan, count 1 and Bobonica, count 2). Runcan was also charged with three counts of supplying a dangerous drug (counts 9 - 11) and Bobonica was charged with possessing a thing used in connection with trafficking in dangerous drugs (count 12). Counts 1 and 2 concerned the drugs cocaine, 3,4 methylenedioxymethamphetamine ("MDMA") and methylamphetamine. The drug involved in counts 3, 4, 5, 6, 9 and 10 was cocaine. The drug alleged in count 7, 8 and 11 was MDMA.
[18]
[3] Both applicants pleaded guilty. Bobonica was sentenced to nine years imprisonment for the trafficking offence and to five years imprisonment for each of his supply offences. No further punishment was imposed for count 12 and all sentences were ordered to be served concurrently. Two hundred and twelve days pre-sentence custody was declared as time served.
[19]
[4] Runcan was sentenced: to 11 years imprisonment for the trafficking offence; to five years imprisonment for each of the supply offences in counts 3 to 8 and 10; to seven years imprisonment for the supply charged in count 9 and to three years for the supply charged in count 11. All sentences were ordered to be served concurrently. The eleven year term of imprisonment was ordered to be served cumulatively upon the remainder of earlier terms of imprisonment imposed on Runcan for drug offences in respect of which his full-time release date was 26 May 2012.
[20]
[5] The only ground of appeal relied on by Bobonica is that the sentence imposed for count 2 was manifestly excessive, having regard to the sentences imposed on other offenders in the same drug distribution network captured by police officers in the same undercover operation ("Operation Sabre"). Runcan's appeal also relies on an allegation of lack of parity: that between his sentence and that imposed on Bobonica. The other ground relied on is that the sentencing judge gave insufficient consideration to the totality principle.
[21]
[6] The following facts emerged from a schedule of agreed facts placed before the sentencing judge. In the course of an undercover police operation in respect of Romanian cocaine networks within south-east Queensland, the police employed surveillance in various forms in respect of Runcan, Bobonica and others, including a person named Rusnac. Although Runcan had numerous drug associates, his primary sources of drugs were Bobonica and one Ioan Boca. When the undercover operative placed an order for drugs with Runcan, he would generally call Bobonica who, in turn, would contact Rusnac in order to obtain the required drugs.
[22]
[7] Runcan and Bobonica jointly supplied to a police operative six ounces of cocaine (117.418 grams of pure cocaine), a sample of two ecstasy tablets and a bulk lot of one thousand ecstasy tablets (containing 100.681 grams of MDMA). Runcan attempted to arrange through Boca a supply of a 200 gram brick of cocaine to the police operative who rejected it on a pretext. After Runcan and Bobonica had a falling out in August 2006, Runcan met with Rusnac to obtain a further ounce of cocaine and a sample of ecstasy pills which he supplied to the police operative.
[23]
[8] The activities engaged in by the applicants were commercial undertakings for gain. Neither was a drug user or drug addict. They were eager to expand their drug business. "There [was] constant talk of potential suppliers, prices, mixing and cutting ratios, level of profits, numbers of clients" as well as discussion of ways to effectively conduct the business clandestinely. The discussions revealed preparedness on the part of the applicants to sell drugs in any quantities they could in order to generate profits. It was established that Bobonica's offending conduct occurred over a period of about four months and Runcan's over about six and a half months.
[24]
[9] Runcan was overheard telling associates in August 2006 that he was regularly earning $8,000 a week from his dealings and that he was unwilling to do street level dealings any more. The learned crown prosecutor informed the sentencing judge that in Bobonica's mind he and Runcan were equal partners and that Bobonica was "endeavouring to be involved in trafficking commercial quantities of wholesale drugs on the same level [as Runcan], although Mr Runcan [was] ultimately more aggressive and more successful at doing that." She conceded that Bobonica's criminality was less than that of Runcan's.
[25]
[10] There was a substantial difference in the applicants' antecedents. Runcan was 55 to 56 years of age at the time of his offending conduct. He had been sentenced for drug offences in August 1993 to 10 years imprisonment with a recommendation for release on parole after serving three and a half years. After his release on parole in November 1995 he committed further drug offences, including trafficking. Those offences led to his August 1999 conviction. He was released on parole on 7 April 2005 and the subject offending commenced a year later. He had earlier re-offended within a year of his release from prison.
[26]
[11] Bobonica was born in December 1961. He was sentenced in Victoria in August 1991 to a six months term of imprisonment for trafficking in heroin. His only relevant conviction in this state was in January 1993 for the supply of dangerous drugs and for possession of a dangerous drug for which he was sentenced to two years imprisonment with a recommendation for parole after serving nine months.
[27]
[12] Counsel for Bobonica argued that the sentence imposed on Runcan was not comparable with the sentence imposed on Bobonica because of Runcan's more significant criminal history and the greater duration and extent of Runcan's trafficking. The sentences selected to support Bobonica's lack of parity argument were those imposed on Alexandru Alexa and Rusnac, both offenders convicted as a result of Operation Sabre.
[28]
[13] Alexa pleaded guilty to trafficking in heroin over a period of about four and a half months. He also pleaded guilty to one count of supplying cocaine. He had no relevant prior criminal history. The supply concerned an unsuccessful attempt to supply between half a kilo and one kilo of the drug. During the trafficking period, Alexa travelled to Melbourne on four occasions to buy heroin in quantities of up to four ounces, which he resold in 3.5 gram lots. He made such sales two to three times a day to dealers, grossing about a thousand dollars for every such quantity sold. Police executing a search warrant located $46,480 in cash in his house. The guilty plea was made at an early date. After taking into account the early plea, the sentencing judge sentenced him to eight years imprisonment with a parole eligibility date set at the expiration of one-third of the sentence. A concurrent term of five years imprisonment was imposed for the other offence.
[29]
[14] Rusnac was convicted on a plea of guilty of one count of trafficking in cocaine and MDMA over an approximate four month period. He was 51 years old at the time of the offence and had no criminal history. He suffered from hypertension, high cholesterol, chronic sinus disease, reactive depression, anxiety and migraines and was on a disability pension. He provided customers with two ounces of cocaine on three occasions and in a fourth transaction he supplied one ounce of cocaine and two ecstasy tablets. On another occasion he provided a sample of cocaine. In total, his dealings involved 194 grams of material containing 132 grams of pure cocaine.
[30]
[15] The amount paid by a covert police operative to acquire the material was $56,000. The offender himself obtained very little profit, realising $500 for each delivery. His role was described as that of acting, at wholesale level, as the conduit between the purchaser and the supplier. There was evidence that he had voluntarily terminated his involvement in drug dealing. His plea was described as timely but not overly early. He was sentenced on 15 December 2008 to six years and six months imprisonment and a parole eligibility date of 14 December 2010 was fixed.
[31]
[16] It is argued on behalf of Bobonica that there is little, if anything, to distinguish the conduct of the offenders Rusnac and Alexa from his offending conduct. In that regard it is submitted that Bobonica was directly involved in almost the same conduct as Rusnac and in relation to similar quantities: 194 grams of material containing 132 grams of pure cocaine in Rusnac's case, as opposed to 166.54 grams of material containing 117.418 grams of pure cocaine in the applicant's case. It is said of Alexa that he was trafficking for slightly longer than Bobonica, that a large sum of money was located in his house, that his customers were themselves traffickers and that he had also made arrangements to supply between a half to one kilogram of cocaine to a police operative.
[32]
Counsel for the respondent's submissions in relation to Bobonica
[33]
[17] Counsel for the respondent submitted, accurately, that one point of distinction between Bobonica on the one hand and Rusnac and Alexa on the other, is that Bobonica had a criminal history which included two convictions for serious drug offences, one of which attracted a two year term of imprisonment. Neither Alexa nor Rusnac had any relevant prior criminal history. The evidence shows that Bobonica was engaged in a more sophisticated commercial enterprise than either Rusnac or Alexa and that Bobonica was endeavouring to get involved in wholesale commercial trafficking on a larger scale. It was argued also that the evidence showed that Bobonica was involved, not only in procuring the drugs for Runcan, but in personally providing them to the undercover police officer on four occasions.
[34]
[18] Rusnac's ill health was a relevant consideration, as was his role as carer for a drug addicted son and his remorse. Also relevant was the very modest profits realised by him. The primary judge also took into account the undisputed claim that Rusnac had "voluntarily desisted from further involvement" in drug supplying well before his apprehension. Alexa's offending occurred when he was persuaded by a Romanian friend involved in the drug trade to become his agent during the friend's absence. His involvement was limited in duration and there is no evidence that he was attempting to develop a trafficking business. There are thus significant points of distinction between the conduct of Bobonica on the one hand and Rusnac and Alexa on the other.
[35]
[19] Counsel for the respondent submitted that even if Alexa's sentence was unduly light when compared with that of Bobonica, Bobonica does not have a justifiable sense of grievance because his sentence was comparable with the sentences imposed in R v Kovacs[1] and R v Arjoc. The convictions of the offenders in those cases were also a by-product of Operation Sabre.
[36]
[20] In Kovacs, the applicant, who was 44 at the time of the offences, was convicted after a trial of supplying a brick of high level purity cocaine weighing approximately 210 grams to his co-offender, Arjoc, which Arjoc passed on to others for the purposes of supply to a covert police operative. The price of the brick was to be $56,000 but the police operative rejected it and it was returned to Arjoc, who, in turn, gave it back to the offender. He also pleaded guilty to one count of unlawful possession of heroin and also to a count of unlawful possession of cannabis. He was sentenced to six years imprisonment for supplying the cocaine and to concurrent three year terms for the other offences. The application for leave to appeal against sentence on the most serious count was refused. The offender, who had been a heroin addict, suffered from a major depressive disorder and had two previous convictions for serious drug offences.
[37]
[21] The offender in Arjoc was sentenced to a term of imprisonment of five years suspended after two years with an operational period of five years for each of the two counts of supply of cocaine. He pleaded guilty, was 51 at the time of the offences and had a solid work history, owning his own business as a concreter. He had three prior convictions for serious drug offences.
[38]
[22] One of Arjoc's offences arose out of the circumstances discussed above in relation to Kovacs. The other offence concerned the supply of 28 grams (1 ounce) of cocaine to Ioan Boca, who sold it for $7,700. In Kovacs and Arjoc, the most serious offence was the one concerning the aborted supply. The sentences of six years in Kovacs and five years in Arjoc may be thought to provide some support for the respondent's contention. The comparable sentences later discussed in relation to Runcan also support the sentence. I accept the submissions by the respondent's counsel that there are significant differences between the circumstances of Bobonica's offending and those of Rusnac and Alexa. One significant difference in Alexa's case, not yet mentioned, is that his trafficking was constituted only by the acts of supply in the supply counts on the indictment. In Bobonica's case the agreed schedule of facts show an extensive involvement by Bobonica in the marketing of drugs apart from the circumstances of the supplies charged. The differences are such that the parity principle has not been offended.
[39]
[23] It was argued on behalf of Runcan that Bobonica's involvement in trafficking was comparable with that of Runcan and that the two and a half extra months during which Runcan was involved in trafficking, together with other relevant factors, was insufficient to justify the disparity between his sentence and Bobonica's. There is no merit in this submission. The period of Runcan's involvement was more than half as long again as that of Bobonica. It was accepted at first instance that Bobonica's criminality was less than that of Runcan. Runcan was the "more aggressive and more successful" of the two. He admitted regularly earning $8,000 a week from his dealings. Runcan was also involved in more supply transactions, including the failed supply of the brick of 200 grams of cocaine for $56,000. His criminal history was far worse than that of Bobonica and he had been convicted for the second time of trafficking whilst on parole for such an offence. His plea of guilty was late.
[40]
[24] The contentions remaining for consideration are whether Runcan's trafficking sentence was manifestly excessive and whether it offended the totality principle. It was submitted by counsel for the respondent that the trafficking sentence was supported by R v George;[2] R v Do;[3] R v Bradforth[4] and R v Klasan.[5] The offender in George was sentenced to 14 years imprisonment for trafficking in heroin and cocaine. He was 49 when the offences were committed and had served short terms of imprisonment for drug offences committed in New South Wales. There were four supplies of heroin and cocaine totalling 251.36 grams of powder containing 178.511 grams of pure heroin and 131.196 grams of powder containing 84.530 grams of cocaine. The total sale price seems to have been about $63,500.
[41]
[25] The 22 year old applicant in Do was engaged in the trafficking of heroin over a four month period by means of an extensive commercial operation involving regular supply. In the trafficking period, the offender sold about 25 grams of pure heroin for about $20,000 to an undercover police officer. When arrested, he had in his possession 77 grams of rock heroin containing 63 grams of pure heroin. Shortly after his arrest, when on bail, he provided 3.3 grams of heroin to facilitate a supply to another. The applicant pleaded guilty and his sentence of 12 years imprisonment was not disturbed on appeal.
[42]
[26] In Bradforth, the 26 year old applicant with no prior drug related convictions, was convicted on a plea of guilty of one count of trafficking in cocaine, methylamphetamine and MDMA over a period of about 12 months, one count of having in his possession vehicles and other things used in connection with the crime of trafficking and one count of possession of drugs including cocaine, methylamphetamine and MDMA. The drugs found in his possession were; 1,386 tablets of MDMA (62.086 grams pure), 63.398 grams of cocaine and 7.379 grams of methylamphetamine. The tablets had a street value of about $48,000. On appeal, sentences of 12 years imprisonment imposed for each offence were set aside and terms of imprisonment of ten years, one year and nine years were substituted. The ten year sentence took into account the fact that the applicant had been on remand for nine months prior to being sentenced.
[43]
[27] Although there were commercial aspects of the offender's trafficking activities, there was "scant evidence of substantial profitability or the trappings of wealth" and his conduct was motivated in part by the desire to feed a drug addiction.
[44]
[28] In the reasons in Bradforth, reference was made to R v George, in which a sentence of 14 years imprisonment for trafficking in heroin and cocaine, imposed after taking into account an early plea of guilty was upheld. The 51 year old offender in George had previous, but relatively minor, convictions for drug offences. In the four transactions specified in the indictment he had supplied 178.511 grams of heroin and 84.530 grams of cocaine for a price of $63,500.
[45]
[29] Having regard to the applicant's trafficking whilst on parole, for the second time, personal deterrence was also of significance.
[46]
[30] In Klasan the offender, with no prior criminal history, who was 35 - 36 years of age at the time of offending, was sentenced on a plea of guilty to 11 years imprisonment for trafficking in cocaine and ecstasy. He dealt at a wholesale level in two lots of ecstasy tablets, one of about 500 to 600 and the other consisting of between 1,000 to 3,000 tablets. He attempted, unsuccessfully, to secure a supply of 60 ounces of cocaine from a large cache of the substance in Cooktown. On another occasion a five kilogram parcel of cocaine was intercepted before it reached him. His application for leave to appeal against sentence was refused.
[47]
[31] Having regard to Runcan's prior criminal history and the circumstances of his offending, a sentence of up to 14 years imprisonment was within the range of the sentencing discretion, absent considerations relevant to the application of the totality principle.
[48]
[32] In his submissions concerning the alleged breach of the totality principle, counsel for the applicant referred to the following statement[6] referred to with approval in the joint reasons in Mill v The Queen:[7]
[49]
"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."
[50]
[33] Because of the application of section 156A of the Penalties and Sentences Act 1992 (Qld) ("the Act"), the sentence imposed by the sentencing judge for trafficking was required to be cumulative upon the existing term of imprisonment. The totality principle, however, was a matter which the primary judge was required to take into account in determining the appropriate sentence for the trafficking offence.[8]
[51]
[34] It seems to me that the critical question is whether the sentencing judge made sufficient overall allowance for the plea of guilty, the applicant's age and the duration of the term of actual imprisonment he would be required to serve. The plea of guilty was described as "timely" but the prosecution case was particularly strong. The applicant's full time release date, if he does not get parole, was submitted by his counsel to be 20 February 2024. On my calculation, disregarding the possibility that six and a half months spent on parole while the offending conduct occurred may be added to his sentence, the full time release date will be 26 May 2023. On the basis that he will be required to serve 80 per cent of his combined sentences, he will be eligible for parole after serving approximately 11 years and three months and will then be just over 70.
[52]
[35] In imposing the sentence the sentencing judge was acutely conscious of the relevant principles and of the need to avoid a "crushing" sentence. She was particularly concerned, however, about the applicant's "calculating ... unrelenting, very determined conduct" which demonstrated a clear requirement for personal deterrence and the need for strong general deterrence. Plainly, these were highly pertinent considerations.[9]
[53]
[36] The fact that the applicant, on his present sentence, may not emerge from prison until he is over 70 years of age is a function of: his re-offending at the age of 56 while on parole in respect of a previous trafficking sentence; the operation of s 156A of the Act and the operation of the serious violent offence provisions of Part 9A of the Act.
[54]
[37] In my respectful opinion, notwithstanding the sentencing judge's careful reasoned approach, insufficient allowance was made for the crushing effect of the sentence and the early plea of guilty. Having regard to the advanced age of the applicant when released, the need for personal deterrence will be somewhat diminished and the requirement of strong general deterrence would be adequately served by a sentence of nine years, assuming that it is accompanied by a serious violent offender declaration under Part 9A. Such a declaration is warranted having regard to the applicant's remorseless and recalcitrant purveying of substances which are extremely injurious not only to individuals but to the fabric of society.
[55]
[38] Mr Boe, who appeared for Bobonica, submitted that the imposition of separate penalties for each of the supply offences constituted additional punishment for the same act or omission.[10] As the trafficking offences were constituted at least in part by the supplies the subject of the supply counts, it was inappropriate to impose separate sentences in respect of the convictions on the supply counts. It is not to the point that the trafficking offences were supported by other conduct.
[56]
(a) the application for leave to appeal be allowed;
[57]
(b) the appeal be allowed but only to the extent that the sentences imposed for counts 3 to 8 inclusive be set aside and that no further punishment be imposed.
[58]
[40] I would order in Appeal No 108 of 2009 that:
[59]
(a) the application for leave to appeal be allowed;
[60]
(b) the appeal be allowed but only to the extent that -
[61]
(i) a sentence of nine years imprisonment be substituted for the sentence of 11 years imposed at first instance;
[62]
(ii) the sentences imposed for counts 3 to 11 inclusive be set aside and that no further punishment be imposed.