R v Broad & Prior [2010] QCA 53

SUPREME COURT OF QUEENSLAND

CITATION: R v Broad & Prior [2010] QCA 53

PARTIES: R v BROAD, Barry Raymond (applicant) R v PRIOR, Shane (applicant)

FILE NO/S: CA No 247 of 2009 / CA No 239 of 2009 / SC No 495 of 2009 / SC No 817 of 2009 / SC No 496 of 2009

DIVISION: Court of Appeal

PROCEEDING: Sentence Applications

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 19 March 2010

DELIVERED AT: Brisbane

HEARING DATE: 19 February 2010

JUDGES: Muir JA and Fraser JA and Chesterman JA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: 1.Applicant Broad’s application is dismissed; / 2.Applicant Prior is granted leave to appeal; / 3.Applicant Prior’s appeal is allowed; / 4.A sentence of four years’ imprisonment with a parole eligibility date set after 10 months be substituted for applicant Prior’s sentence.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF TRIAL JUDGE – where applicants were part of an organised crime network trafficking commercial quantities of cannabis from South Australia to Queensland – where the primary judge was not given what he regarded as adequate information about applicant Broad’s involvement in the trafficking – where the primary judge demanded further information from counsel in that regard – whether the primary judge erred in pursuing material the prosecution had chosen not to adduce – whether the primary judge erred in refusing to exercise the jurisdiction of the court to sentence the applicants – whether the primary judge erred in sentencing applicant Broad on the basis of an inference his Honour drew from the agreed facts / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant Broad pleaded guilty and was sentenced to seven years’ imprisonment for trafficking in cannabis sativa – where the person at the centre of the syndicate was sentenced to six and a half years’ imprisonment – where applicant Broad had a substantial criminal history – where applicant Broad did not cooperate with investigating authorities – whether sentence manifestly excessive / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant Prior pleaded guilty and was sentenced to four and a half years’ imprisonment for trafficking in cannabis sativa – where applicant Prior had a relatively limited role in the trafficking network – where applicant Prior had no relevant prior convictions – where applicant Prior had cooperated with investigators – whether sentence manifestly excessive / Drugs Misuse Act 1986 (Qld) / Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, applied / GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22, cited / R v Brienza [2010] QCA 15, cited / R v Willoughby [2009] QCA 105, applied / Richardson v The Queen (1974) 131 CLR 116; [1974] HCA 19, cited / The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38, cited

COUNSEL: In Matter 247 of 2009: / P L J Callaghan SC, with A M Hoare, for the applicant / G J Cummings for the respondent / In Matter 239 of 2009: / B H P Mumford for the applicant / G J Cummings for the respondent

SOLICITORS: In Matter 247 of 2009: / Robertson O'Gorman for the applicant / Director of Public Prosecutions (Queensland) for the respondent / In Matter 239 of 2009: / Bell Miller for the applicant / Director of Public Prosecutions (Queensland) for the respondent

1. MUIR JA: I agree with the reasons of Chesterman JA and with his proposed orders.

2. FRASER JA: I agree with the reasons for judgment of Chesterman JA and the orders proposed by his Honour.

3. CHESTERMAN JA: On 18 September 2009 the applicant Broad pleaded guilty to trafficking in cannabis sativa between 9 June 2007 and 1 November 2007 and possessing property, namely $11,700, on 31 October 2007, which was reasonably suspected of being the proceeds of an offence against the Drugs Misuse Act 1986 (Qld).

4. On 23 September 2009 he was sentenced to seven years’ imprisonment, with a parole eligibility date set at 22 December 2011, on the trafficking charge. He was convicted but not further punished on the charge of possessing the money.

5. On 23 September 2009 the applicant Prior pleaded guilty to trafficking in cannabis sativa also between 9 June 2007 and 1 November 2007; possessing cannabis in an amount greater than 500 grams; possessing cannabis; one summary charge of possessing property, namely $110,000, reasonably suspected of being the proceeds of an offence against the Drugs Misuse Act, and a second summary charge of possessing a water pipe and scales, all on 31 October 2007.

6. He was sentenced on 23 September 2009 to four and a half years’ imprisonment with a parole eligibility date being set at 22 October 2010 on the trafficking charge. On the charges of possessing cannabis he was convicted but not further punished. On the summary charge he was sentenced to three months’ imprisonment to be served concurrently with the longer term.

7. Both Broad and Prior seek leave to appeal against their sentences. Prior’s application was brought upon the ground that the sentence was manifestly excessive. Broad’s grounds were that:

“(1)The learned sentencing judge erred in proceeding on the basis that a judge:

(a)has the power to pursue material which the prosecution has chosen not to adduce; and

(b)is entitled to refuse to deal with a sentence if the state of the materials is not to his liking.

(2)The learned sentencing judge erred when he sentenced the applicant upon a basis which was without foundation.

(3)The sentence was manifestly excessive.”

8. The applicants were part of an organised crime network trafficking commercial quantities of cannabis which was grown in South Australia and transported for sale into Queensland in motor vehicles especially modified to conceal the drugs. A helpful outline of the facts appeared in the written submissions of Prior’s counsel. It is in these terms (which I have slightly adapted):

“Between 13 June and 17 October 2007, six deliveries of large quantities of cannabis from South Australia to Queensland were identified. Steve Janusaitis was the head of the operation. He was the centre of the trafficking syndicate. He received orders from Queensland distributors and determined the quantities to be delivered. He would instruct Paul Collis on how the quantities for the Queensland targets would be distributed amongst each buyer. Telephone interceptions and other evidence suggested the delivery between 122 pounds and 222 pounds of cannabis from Janusaitis between 10 July 2007 and 1st November 2007. Paul Collis was responsible for the receipt and packaging of the cannabis in South Australia. He would take instructions from Janusaitis as to the quantities of cannabis to be delivered to Barry Broad and Skevos Tsounias. He would also contact Mark Lemmens and make arrangements for Lemmens to collect the packaged cannabis from Collis for delivery to Queensland. Collis was paid approximately $100 per pound for his role in the syndicate.

Lemmens was employed as the courier of the cannabis from South Australia to Queensland on behalf of Janusaitis and Collis. He would transfer the cannabis in a sealed compartment of a fuel tank in his vehicle. He would meet the Queensland distributors and deliver the cannabis in quantities previously instructed to. He received about $100 to $120 per pound.

Tsounias ordered and took receipt of cannabis from Janusaitis. When Lemmens arrived in Queensland, he would assist Lemmens in dismantling the false compartment in the fuel tank and removing the cannabis.

Broad sourced commercial quantities of cannabis from Janusaitis in South Australia. Broad engaged the services of Shane Prior to collect the cannabis and hand over payment.

Shane Prior was engaged by Broad to collect cannabis from Lemmens on his arrival to Queensland.

In essence, Prior kept the cannabis for a short time and Board collected it for later distribution. Prior was paid a small amount of money to collect and deliver cannabis.

On the day of interception, 31 October 2007, the Police apprehended Lemmens and Prior at the Musketeer Sports Club at 4.20 pm. Lemmens’ vehicle was searched. Cannabis and $17,500 cash was found. Prior’s vehicle was searched and a package containing $110,000 cash wrapped in plastic was seized.

Broad had given the package to Prior to be given in turn to Lemmens in exchange for the 30 pounds of cannabis found in Lemmens’ vehicle.

On 31 October 2007, a Search Warrant was executed on Broad’s residence and $11,700 was found concealed in a wall cavity above the refrigerator in the kitchen.

Broad had also been followed to the addresses of Kristen Mason and Luke Faisel.

Their premises were searched. Cannabis was found in both.

Mr. Prior took part in a full Record of Interview with police on 31 October 2007 and made full admissions concerning his involvement.”

9. It is convenient to deal separately with the applications.

Broad

10. Broad’s first ground of complaint against his sentence concerns the manner in which the sentencing judge determined, as a question of fact, his role in the trafficking network and his Honour’s finding that Broad’s involvement was more than that of an intermediary for others in the distribution of the cannabis once it had been delivered to Queensland.

11. To understand the argument it is necessary to say something about the course of the proceedings before the primary judge. On 18 September 2009 Broad was arraigned and pleaded guilty. The prosecutor tendered an agreed schedule of facts, part of which recited that “the overall personal gain to … Broad was … $100 a pound”. The prosecution added, “that being … said, it might be said that … Broad was onselling those commercial quantities to someone else for financial benefit for himself.” The primary Judge suggested that “the police must have some information of what he did with the drugs”, but the prosecutor said she had no instructions on the point. His Honour then said he was “not prepared to deal” with the sentence and asked what order the prosecutor wanted him to make. She suggested an adjournment “for further enquiries to be made”.

12. During this interchange the primary judge said, a little colourfully, that he was “not going to be treated like a mushroom”, from which I presume his Honour meant that he would not allow himself to be kept uninformed and supplied with what the Macquarie Australian Dictionary of Slang politely defines as nonsense or rubbish.

13. The primary judge intimated that he would adjourn the sentence until later that day so that the police investigator could give evidence about what inquiries had been made about what Broad did with the drugs he received from Janusaitis. His Honour said:

“I do not have enough information about the scale and nature of the operation or what happened to the drugs”,

and

“… the police apparently haven’t seen fit to give the DPP adequate information to enable me to properly sentence … .”

14. The matter was adjourned. An hour or two later his Honour was informed that an adjournment of a few days would enable Broad to be sentenced with one or more of his co-offenders which was, obviously enough, thought to be appropriate. The sentencing resumed on the adjourned date, 23 September 2009 when the applicant Prior was arraigned on the charges against him, and he pleaded guilty.

15. The prosecutor then said:

“On Friday a prepared schedule of facts was handed to your Honour. I propose to hand that schedule of facts to you again … . There is some additional material contained in the schedule of facts pertaining to the question your Honour posed in relation to the conclusion of the investigation, and the searches that were conducted et cetera.”

The schedule was said to relate “primarily to … Broad”.

16. It is necessary only to set out some parts of the schedule of facts.

“… six distinct deliveries of large quantities of cannabis sativa from South Australia to Queensland were identified and are alleged to have occurred on 13 June 2007, 11 July 2007, 23 August, 2007, 2 October 2007 and 17 October 2007. During each of these events, targets were captured during telephone intercepts discussing various phases of the deliveries including timings, collections, transport locations, quantities, quality, weights, prices, packaging and secretion of the cannabis. The last three deliveries were also subject to physical surveillance.

Towards the end of October 2007, investigators monitored preparations … for a further cannabis delivery to be carried out on 31 October 2007. That … was … intercepted … . This interception resulted in the location of $127,500 in cash, 30 pounds of cryovac packaged cannabis sativa, laptop computers, mobile telephones, a diary, financial documentation, personal papers and a Toyota Land cruiser … . The diary seized belongs to Mark LEMMENS and contains details of the varying quantities of cannabis collected by LEMMENS and COLLIS and the amounts distributed to Queensland. … the diary suggests the delivery of up to 267 pounds of cannabis from JANUSAITIS to BROAD, PRIOR and TSOUNIAS for the period 10 July 2007 to 1 November 2007. … the diary … in conjunction with the six original targeted drug deliveries, identifies 12 events in which LEMMENS is utilized by the South Australian syndicate (COLLIS and JANUSAITIS) to deliver cannabis up to the Queensland based targets BROAD, TSOUNIAS and PRIOR.

…

It is alleged that COLLIS was responsible for the receipt and packaging of the cannabis from South Australia. COLLIS would take instructions from JANUSAITIS as to the quantities of cannabis to be delivered to BROAD … . … COLLIS would contact LEMMENS and make arrangements … for delivery to Queensland.

…

COLLIS was paid approximately $100 … per pound for his role … .

…

… LEMMENS was employed as the ‘courier’ of the cannabis from South Australia to Queensland on behalf of JANUSAITIS and COLLIS. … once in Queensland, LEMMENS would meet with the Queensland distributors and deliver the cannabis in quantities that he had been instructed to do. LEMMENS would receive a paid commission (approximately $100 to $120 per pound) on the delivered cannabis.

…

It is alleged that Barry Broad was sourcing commercial quantities of cannabis from … Janusaitis in South Australia. Telephone intercept product and other evidence gathered during the investigation identifies the delivery of between 122 pounds and 222 pounds of cannabis to Broad from Janusaitis between 10 July 2007 and 1 November 2007. The Crown alleges that Broad engaged the services of PRIOR to meet with LEMMENS, collect the cannabis and hand over payment for past deliveries.

The Crown alleges that Broad’s involvement in the overall syndicate is commensurate with that of Shane Prior and that Broad would have received a reward for the cannabis in similar terms to that alleged to have been received by Shane Prior. That reward being approximately $100 … per pound.

…

It is alleged that PRIOR was employed by BROAD for the purposes of collection of cannabis from LEMMENS on his arrival to Queensland and the delivery of same to BROAD. … the diary of LEMMENS … shows PRIOR’s involvement in the receipt of up to 222 pounds of cannabis that is alleged to have been sold to BROAD. PRIOR was paid a small amount of money to collect and deliver the cannabis on behalf of the person he referred to as ‘Barry’.”

17. It was at this point that the statement of agreed fact tendered on 18 September 2009 ended. The new statement of agreed facts tendered on 23 September became exhibit 3 and is reproduced in the appeal record. It contained these further paragraphs:

“Throughout the investigation BROAD was regularly captured during telephone intercepts having guarded and coded conversations regarding the timing of the deliveries, the amount of Cannabis to be delivered, the locations of exchanges and the potential for detection … . Phone intercept product showed BROAD sourced between 122 – 222 pounds of cannabis from JANUSITIS (sic) over the 4 month period.

BROAD engaged PRIOR to collect the cannabis from LEMMENS. BROAD delivered to PRIOR large sums of money to be exchanged for the cannabis. BROAD was then met at PRIOR’S house and collect the cannabis.

The Crown is unable to further particularise the nature of his business or identify to whom he supplied the cannabis to, because he did not participate in a ROI. Telephone evidence suggests he delivered to at least one person referred to … as the ‘Big Fella’. He also refers to ‘the Leb’.

On 2 October 2009 (sic) police surveille (sic) the delivery of cannabis by LEMMENS into Queensland. At 17:53 … police observe BROAD attend PRIOR’S address. … a telephone call … is recorded between BROAD and JANUSAITIS in which BROAD complains about the quality of the cannabis. During that call BROAD states ‘Well man, I’m gonna fuckin’ palm em off to the big fella man, I’m telling youse now hey, they’ll be getting sent back hey’.

A further telephone call is recorded at 18:01 … between BROAD and JANUSAITIS. During the call BROAD continues to complain about the quality of the cannabis. He states I could send it, take it over to him and see what he says and hopefully the cunt is not there. JANUSAITIS replies that ‘he is only going to ring you’ and BROAD replies ‘Ring me for sure, straight away.’” (emphasis in original.)

18. A number of other participants in the trafficking network had been dealt with, and sentenced, by other judges in the trial division shortly prior to 23 September 2009. Their roles in the network and the sentences imposed were mentioned to the primary judge who was given copies of the sentencing remarks made with respect to Collis and Lemmens. From these it became apparent that Atkinson J, who sentenced Lemmens, had been informed that Broad distributed the cannabis he obtained on the Sunshine Coast. His Honour complained that he was being “starved of material” about what Broad did with the cannabis he received from Prior and expressed the opinion that it was “inherently improbable that there was no further investigation”. His Honour said “that the information is being withheld from the Court, and I will pursue it and if necessary refuse to deal with this sentence”. His Honour intimated that he was pursuing the matter “because I want to find out what happened. I do not like it when the Court is treated like a mushroom … ”.

19. His Honour then said to defence counsel:

“… I am going to try to, as best I can, and obviously my capacities are very limited … to pursue the prosecution for information about what your client did with it, so you may find it convenient to take instructions on that topic.

…

… but if I can winkle it out of the Crown you will need to be able to respond … .”

20. His Honour returned to questioning the prosecutor to ascertain whether there had been an investigation into the ultimate destination of the cannabis obtained by Broad. Having been told there had been no such investigation his Honour complained:

“So he’s evidently carrying on a business, but I’m supposed to sentence on the basis that I know half of the business he was carrying on.

…

… He was selling the stuff. That was his business, but I’m given no information about the sale side of his business.”

21. Later in the proceeding the primary judge questioned the prosecutor about:

“… the source of the evidence that leads to the sentence (in the schedule of agreed facts) that reward being approximately $100 per pound.”

The Prosecutor answered that there was:

“… no source of the evidence … the Crown accepts that proposition because it cannot show otherwise.”

22. The questioning revealed that the origin of the statement was Broad’s lawyers’ assertion of that fact and the Crown’s complete ignorance of the amount of financial reward Broad obtained from his dealing with the imported cannabis. The prosecutor agreed that:

“the Crown has absolutely no basis to know whether that’s correct or not”.

The primary judge then summarised the debate:

“Well then I do not see how it is proper for the Crown to accept or reject that statement and I do not see how I can possibly act upon it.”

Things were left on the basis that the Crown could not particularise what reward Broad received from his trafficking. Broad himself, as I have noted, claimed it to be $100 per pound.

23. In passing sentence the primary judge described the network and the role played by the various participants in it and continued:

“What happened to the cannabis after you (Broad) received it is somewhat unclear. Extraordinarily, I was told by the Crown prosecutor, on her instructions as a positive fact, that there was no further investigation carried out by either the police or the Crime and Misconduct Commission, which was also involved in this operation, into what you did with the cannabis, save as I shall refer to in a moment. … As it is I must determine the extent of the business which you carried on as a matter only of inference rather than from direct evidence. … the evidence shows that you, Mr Broad, paid the South Australians through Lemmens large sums of money for the cannabis.”

24. Later his Honour said:

“Police subsequently investigated your financial position, Mr Broad, but were unable to discover any substantial wealth attributable to drug money.

On the face of that evidence I infer that you were carrying on the business of buying and selling cannabis. Counsel on your behalf asserted that your instructions were that you received the money which you gave to Prior to hand over to Lemmens, the large amounts of money, already wrapped, from an unnamed person, who … he did not have to identify. He asserted that your instructions were that you were not selling the cannabis, but were delivering it to the stockpiles of the person who provided the money to you, and were doing so at the two addresses where police carried out raids on the 31st of October. …

He asserted that the Crown had accepted your allegation … made in negotiations between your lawyers and the Crown, that you received $100 per pound for handling the cannabis and received nothing else. I warned that notwithstanding the absence of any evidence of great wealth on your part, I found that assertion inherently unlikely and invited evidence if you wanted to give it. You declined to do so.

I am not prepared to draw the inference which Mr Hoare urged upon me. The circumstances of your disposal of the cannabis were peculiarly within your knowledge. Although the Crown has stated in the schedule of agreed facts that your award was approximately $100 per pound, Ms Fredericks informed me that that was accepted … on the basis that it was asserted to be so by the defence lawyers, and the Crown had no evidence, one way or the other, to indicate whether that was so. The statement of agreed facts does not bind me. I sentence on all of the evidence before me.

The Crown’s inability to know the truth or otherwise of that assertion means that it can neither accept nor reject it. Given my inference that you were in fact carrying on the business of buying and selling cannabis, I reject it. I cannot say how much you were making, but it must have been a substantial amount of money.”

25. Grounds 1 and 2 in Broad’s application are related in content and arise out of the manner in which the primary judge conducted the proceedings.

26. Broad’s counsel was sharply critical of the primary judge. Having referred to GAS v The Queen; SJK v The Queen (2004) 217 CLR 198 in which the High Court said (at 211):

“… it is for the sentencing judge, alone, to decide the sentence to be imposed. For that purpose, the judge must find the relevant facts. … proved by evidence, or admitted formally … or informally … . There may be significant limitations as to a judge’s capacity to find potentially relevant facts in a given case. …

… there may be an understanding, between the prosecution and the defence, as to evidence that will be led, or admissions that will be made, but that does not bind the judge, except in the practical sense that the judge’s capacity to find facts will be effected by the evidence and the admissions” (footnotes omitted),

he submitted:

“11.5Accordingly, sentencing judges are free to draw such inferences as they might from the materials which are placed before them. They are not confined, in this exercise, to a choice between inferences which might be urged upon them by the parties. But the sentencing discretion is circumscribed, in a practical sense, by the parties and the choices they make as to the materials which might be placed before the court. The Court in GAS did not authorise the judiciary to issue directives to the agents of the executive, nor to assume inquisitorial powers.

11.6 Nor are Judges entitled, in effect, to bring their own application for a stay and uphold it pending the resolution of materials to their satisfaction.

11.7 It is apparent from the course of proceedings that this judge did not perceive his functions to be so limited. …

…

11.10Experienced practitioners have encountered, at some stage, an example of judicial petulance. These episodes are regrettable, but are not usually appellable. And it is not open to complain about healthily sceptical, even robust, questioning which is part of a meaningful dialectic. But what occurred here went beyond that.

11.11His Honour assumed that he was entitled to ‘pursue’ further material, for example, by calling for the provision of documents which had been produced for the purposes of unrelated proceedings. It is doubtful whether these out of court statements could, in the absence of evidence from the person who made them, be properly admitted. In any case, his Honour held the belief that he was entitled to ‘pursue’ the Crown for such material. His conduct of the hearing conveyed the impression that the process was inquisitorial, and that he had investigative responsibilities.

11.12Furthermore, it was also assumed by his Honour that, because he was dissatisfied with the state of the materials, he had a power to refuse to deal with the sentence. The materials included a plea of guilty and submissions as to the facts which substantiated the elements of the offences charged. The parties wanted the matter dealt with. His Honour was not, in these circumstances, authorised to announce that he was ‘not prepared to’ or could ‘refuse to’ deal with the sentence.

11.13It is true that his Honour said at one stage that his capacities were ‘very limited’. At no stage, however, was there acknowledgment as to how limited he thought they may have been. In any event, he was clearly of the view he was empowered to ‘pursue’ and ‘winkle’. He declared that he was willing to abnegate his responsibilities. These assertions do not reflect the role of a judge in the modem era. By making them, his Honour `acted on a wrong principle’ such that his determination must be reviewed, and the Court’s discretion exercised in substitution for his.” (footnotes omitted.) (emphasis in original.)

27. The submissions referred as well to The Queen v Apostilides (1984) 154 CLR 563, which held (at 576) that trial judges should exercise “extreme reluctance” to “even consider usurping the responsibilities of the parties with respect to the calling of witnesses”, and to Richardson v The Queen (1974) 131 CLR 116, which doubted (at 122) whether a trial judge possessed the power to direct the Prosecutor to call a witness.

28. The submissions overstate the objection to what the primary judge did in the sentencing process. His Honour did not refuse to deal with the sentence, nor did he direct the prosecutor to call a witness, or attempt to do so himself. The primary judge was obviously concerned that he was called upon to sentence Broad for the very serious offence of trafficking in a dangerous drug, which carried a maximum penalty of 20 years’ imprisonment, without complete information as to the nature and extent of Broad’s involvement in the trafficking.

29. In particular his Honour was concerned to know whether Broad was selling the drugs brought into Queensland, pursuant to the orders he placed with Janusaitis, for his own profit (and if so the extent of the profit made) or whether he was, as Broad alleged, merely a conduit for others. His Honour was, obviously, anxious to sentence Broad on an accurate factual basis. The need to do so is self evident. His Honour cannot fairly be criticised for expressing the desire to be properly informed of relevant facts. Other judges may have undertaken that task in less forthright terms and with more circumspection of expression but it is not a ground of appeal that a judge expressed himself (or herself) more robustly than defence counsel cared to hear.

30. The primary judge did not refuse to exercise the jurisdiction of the court to sentence the applicants at the time appointed for that function, nor did his Honour direct the prosecutor to call witnesses or endeavour to have the court call them. His Honour did no more than express frustration that he was not given what he regarded as adequate information, and bring the deficiency forcibly to the prosecutor’s attention. As a result of his criticism the primary judge was given some more information, with the consent of defence counsel. That process is, in itself, unremarkable.

31. I would therefore reject the first ground of appeal. That leads to the second ground which is a complaint that the primary judge sentenced on a basis of fact which did not appear from the material put before him and which was contrary to the agreed facts.

32. The applicant’s point is that included among the agreed facts was one that Broad received $100 per pound of cannabis delivered by Lemmens to Prior. This was said to be “consistent with the applicant’s acting as an intermediary, rather than as a purchaser of cannabis to sell as principal.” There was also said to be no evidence which contradicted this inference, and that the trial judge was obliged to sentence on that premise. The submission went on that the primary judge was not entitled to treat the agreed facts “with scepticism” and was obliged to act upon the basis which the prosecutor was content to accept. His Honour’s finding that Broad was buying and selling cannabis thereby earning “a substantial amount of money” was said to be unsupported by the evidence and, indeed, “somewhat perverse”.

“The foregoing rules do not oblige a sentencing judge passively, and unquestioningly, to accept facts as the basis for sentencing which are presented by the prosecution and/or the accused. The judge’s sentencing discretion is to be exercised in the public interest. Even where the prosecution and the accused are agreed, they cannot fetter the judge’s performance of the judicial function by their plea bargaining … . A statement of agreed facts may appear to the sentencing judge to be inadequate for sentencing purposes. The judge may feel the need for further material, for example, by way of pre-sentence report to assist in the performance of the sentencing function. The parties cannot forbid the judge to seek such assistance. They have their respective functions to perform. But they cannot invade the judicial function any more than the judge may invade their functions.”

34. The inference which the primary judge drew from the agreed facts about Broad’s activities is plainly supported by them. First it was agreed that the drugs which Prior received were sold to Broad. Second Broad was overheard on the telephone discussing with Janusaitis the timing of deliveries of the cannabis, the amount of each delivery, and the location where delivery would occur. Then there is Broad’s employment of Prior to collect the cannabis, hold it overnight, and pay for it. Fourthly, and significantly, Broad complained to Janusaitis about the quality of the cannabis delivered. That conversation is inconsistent with Broad’s role being that of an intermediary or courier. It is indicative of an interest in the transaction of buying and on-selling.

35. The third point, which was not contested, that Broad employed Prior to collect the drugs transported to Queensland by Lemmens and to pay him on each occasion very substantial amounts in cash, is important. It was accepted all round that Prior’s involvement in the network was at a lower level than Broad’s. The fact that Broad employed Prior is some indication that Broad was running his own business.

36. The material put before the primary judge amply justified his Honour’s inference that the applicant Broad was in the business of trafficking cannabis, on his own account. The evidence did not allow a finding, and none was made, as to the profits made by the applicant from his business. The primary judge was entitled to reject the unsubstantiated assertion put forward on Broad’s behalf that he was paid by unidentified others at $100 per pound, and that he was only an intermediary. The facts which allowed the judge to draw the inference were furnished because his Honour complained about the deficiency of the material facts provided. The complaint was justified. Broad has no legitimate grievance that the facts he had agreed with the Crown were not accepted by the court. They were, in any event, wrong, as shall appear. The judge was entitled, when sentencing in the public interest, to ignore an agreed fact which appeared to be wrong when it was demonstrated the Crown had no basis for agreement.

37. This, however, is not the end of the matter. The statement of agreed facts was supplemented, and elaborated. A document in rather similar form to exhibit 3, and entitled “schedule of facts” was prepared for Collis’ sentencing. A copy was tendered in the proceedings against Broad and Prior. It became exhibit 9. It contained this statement:

“The Crown is unable to quantify the total reward that Broad gained during the trafficking period, as the Crown cannot say how much Broad was onselling the cannabis for. The Crown can only quantify an estimated value of the cannabis supplied to Broad from Janusaitis and that it is likely to have been sold by Broad for some kind of profit. The Crown alleges that Broad received amounts of cannabis from 122 pounds up to the total amount of 222 pounds. …”

38. The statement appears to have been overlooked by everyone, including the prosecutor who tendered it. It was, however, received without objection and provided information on which the primary judge could rely to find the facts relevant to the sentencing process. There was an express assertion of the fact, which the trial judge inferred anyway, that Broad was selling as principal though the amount of his profit could not be ascertained or estimated.

39. Grounds 1 and 2 in Broad’s application are predicated upon a false premise. Given the express information put before the court towards the end of the sentence hearing by exhibit 9 it may be seen that the trial judge was right to be sceptical of part of the agreed facts and that the finding of fact his Honour made, the subject of particular criticism, was quite right.

40. This leaves for consideration the third ground that the sentence was manifestly excessive. The submission here is that given the applicant’s personal circumstances and his role in the trafficking network the appropriate sentence was between five and six years’ imprisonment. As to the former it was said:

“The applicant had struggled with a long history of drug addiction, against the background of a violent upbringing. Acting on his wife’s ultimatum (prompted by his arrest) he ceased using drugs, indicating, at last, some strength of will. He is, now, the father of two young children. … he will serve (imprisonment) … as a husband and father. Some recognition of his rehabilitative process is appropriate.”

41. Broad has a substantial criminal history starting when he was 17 and terminating in 2008 when he was 38. There are six convictions for possessing or producing drugs, several for breaching bail condition, some for assault and destruction of property and several for lesser offences; using obscene language and behaving in a disorderly manner in public.

42. For the second aspect of the submission reliance was placed upon the sentence imposed upon Janusaitis by White J on the day following the applicant’s sentence, 24 September 2009. Janusaitis was involved in the network at a higher level than either Broad or Prior. It was he who acquired the cannabis from the growers, aggregated or arranged for its aggregation into marketable parcels, took orders from inter alia Broad and arranged for the orders to be filled. Collis did the packaging and Lemmens transported the drugs to Queensland. Broad, on the findings, was in the nature of a wholesaler, buying the drugs in bulk and on-selling.

43. Janusaitis was sentenced to six and a half years imprisonment with a parole eligibility date set after he has served 20 months of the sentence. He thus received a lower sentence than Broad, and an earlier parole eligibility date.

44. In passing sentence on Janusaitis White J said:

“You are described as being at the centre of this syndicate … . …

…

The amount of turnover was based on an estimated $3,200 per pound, which meant on that amount that’s been admitted a turnover of just over half a million dollars. … You told (police) that you received between 400 and 500 dollars per pound … profit, giving a profit of in the vicinity of 65 thousand to 82 thousand dollars.

…

The co-operation which you gave to police, however, was quite significant. Some others involved in this syndicate or the other syndicate to which I’ve made reference did not. You made it much easier for the authorities to analyse and understand the various telephone intercepts. You had telephone intercepts played to you and … were able to give some understanding of the code … used.

…

You’re a man who has been in employment all your life. You have done some charitable work … . … you’re regarded as a very good worker. What is also of importance is that your co-operation with the police has led to some positive outcomes in South Australia about producers of drugs.”

45. Janusaitis was 49 at sentence without previous criminal conviction.

46. There are two obvious points of distinction between Janusaitis and Broad. One is the lack of criminal history. The other is the substantial co-operation given to the police which assisted in the prosecution of others in his syndicate and the arrest of drug producers in South Australia. He confessed his own involvement and the extent of the profits he made.

47. Broad has a criminal history which is extensive though many of the offences are minor. More significantly he refused to co-operate with investigating authorities, gave no information about his own involvement in the trafficking network and gave no assistance with respect to the investigation or apprehension of others. He insisted he be dealt with on a basis which was ultimately shown to be wrong and which understated his criminal activity.

48. White J was aware of the sentence imposed on Broad and that his involvement in the network was a lower level than that of Janusaitis.

49. A case of particular relevance is R v Brienza [2010] QCA 15. Brienza was involved in trafficking cannabis in a network very similar to Broad. It had the same characteristics of a controller in South Australia who sourced drugs and arranged for their transport to Queensland in an especially adapted vehicle for on-sale by drug wholesalers in this state. I would accept the respondent’s submissions that Brienza and Broad were roughly comparable in their activities. Brienza was sentenced to six years’ imprisonment with a parole eligibility set after two years. His application for leave to appeal against sentence was refused. Brienza was 35 years old when he offended. Significantly, he had no criminal history.

50. Broad’s only point is that his sentence is more severe than that of Janusaitis. I have already mentioned two distinguishing features which would serve, as they did, to reduce his sentence and which are absent in Broad’s case. As well as that there is the point made in R v Willoughby [2009] QCA 105:

“[31]The approach favoured by this submission calls for an analysis of other cases of such exactitude, and a comparison of such precision, that I frankly doubt are attainable. Moreover I question the utility of this approach. It is, in my respectful opinion, salutary to bear in mind the remarks of the Chief Justice (with whom Jerrard and Keane JJA agreed) in R v Klasan [2007] QCA 268 at [34]:

‘Also, with the sentencing of multiple offenders at this level, suggestions that disparate sentences should be susceptible of precise arithmetic reconciliation should be rejected. In addition, some allowances must in the end be made for inevitable differences in the legitimately varying approaches of respective Judges to these value judgments.’”

51. The sentence of seven years imposed on Broad was substantially ameliorated by the fixing of a parole eligibility date after Broad will have served two years and three months. This is only seven months more than Janusaitis who had the benefit of the substantial co-operation he rendered in the detection of criminal activity and his absence of any prior criminal history.

52. I am not persuaded that the sentence is manifestly excessive and would dismiss Broad’s application.

Prior

53. The argument advanced on behalf of this applicant centres upon his relatively limited role in the trafficking network, his level of remuneration for it, and his personal circumstances, including his extensive co-operation with the investigating and prosecuting authorities.

54. Prior was, in effect, a warehouseman of the drugs. He collected them from Lemmens and held them overnight in his home until their collection, the next day, by Broad. He was also entrusted by Broad with making payment for the drugs. He received, held and passed over very large amounts of cash which were given to Lemmens to be taken by him to South Australia.

55. After some confusion it was finally accepted that Prior was paid $500 to $600 for his involvement on each occasion he collected drugs. There were at least eight and he received, on those figures, between $4,000 and $4,800. In fact he settled a pecuniary penalty claim for $3,850 which he paid to the Crown, borrowing against his credit card for the purpose.

56. Subsequent to his arrest Prior agreed to be interviewed and provided evidence against himself, though not against others, out of fear.

57. During that part of the hearing concerned with Prior an error was noted in the statement of agreed facts. It had been prepared primarily for use against Broad. It contained a statement that Broad and Prior received the same level of remuneration, $100 per pound. This was accepted to be wrong by all concerned, as I understand it. Broad maintained he received that amount. Prior had confessed when interviewed to being paid by Broad $500 to $600 each time he held drugs.

58. Accordingly the statement of agreed facts was amended by deleting the words:

“The Crown alleges that Broad’s involvement in the overall syndicate is commensurate with that of Shane Prior and that Broad would have received a reward for the cannabis in similar terms to that alleged to have been received by Shane Prior.”

59. Prior had one previous conviction, in 1987, of minor import and no relevance to the present charges.

60. The offending was said to be out of character. The applicant came from a good family and he received a sound education. He qualified as an electrician and has been constantly employed since leaving school. He is married. Both he and his wife have children from previous marriages and one child of their own. Prior supported his wife and the younger children. He has a home subject to mortgage the payments on which he cannot make while incarcerated.

61. Prior was a consumer of cannabis prior to his offending. He took it, he said, as an analgesic. His involvement with Broad was not a result of any drug addiction. His motivation was purely financial. He was short of money and accepted Broad’s offer to perform the role of warehouseman for the payments in cash I have mentioned.

62. Prior was said to be remorseful. He pleaded guilty in a timely fashion and, as I recounted, provided police with a full account of his involvement in the offence.

63. It was submitted on his behalf that his involvement was less than that of Collis and of Lemmens and that his sentence, when compared with theirs, did not reflect his limited involvement.

64. Collis was sentenced on 14 September 2009 to five years’ imprisonment suspended after 410 days, which he had already served. He had a limited education, was 55 at the time of sentence, had been interviewed and co-operated with the investigators. White J, who dealt with the matter, noted that the appropriate range of sentence would have been between six and seven years but fixed upon five because of Collis’ particular co-operation. He had voluntarily returned to Queensland to face trial. He was paid $16,400 for his part in the enterprise.

65. Lemmens was sentenced by Atkinson J on 16 July 2009. He was 41 with a minor criminal history. He had qualifications which fitted him to work in the mines and earn a substantial income. He had had a troubled childhood. He was sentenced to five and a half years’ imprisonment with a parole eligibility date fixed after 17 months. This was:

“Particularly early in order to reflect the fact that Lemmens had been much more co-operative than others.”

66. Lemmens stood to gain between $65,275 and $84,275. On his arrest $17,500 were found in his possession.

67. The Prosecutor submitted to the primary judge that Prior’s sentence should be in the range of three to four years. It was submitted for Prior that the head sentence should be three years’ imprisonment with a parole date fixed at between nine and 12 months.

68. The sentence imposed on Prior does not, I think, reflect the limited part he played in the criminal enterprise, which is reflected in his remuneration. Although his co-operation may not have been as extensive as Lemmens’ or Collis’ he had little to offer other than his own involvement, which was towards the bottom of the organisation. Even bearing in mind the caution sounded in Willoughby, to which I adhere, about seeking to obtain perfect consistency and proportionality, the sentence imposed on Prior appears a little heavy. To maintain the distinction between the respective criminality I would give leave to appeal, allow the appeal and substitute for the sentence imposed one of four years’ imprisonment with a parole eligibility date set after 10 months.