Williams, Keane and Holmes JJA, Judgment of the, Court
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE
–
CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE–CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL– MISDIRECTION AND NON-DIRECTION –GENERALLY – where evidencewas given by various witnesses at trial who had received benefits unders 13A Penalties and Sentences Act 1992 (Qld) – whetherdirections given by learned trial judge in relation to this evidence wereadequate – whether verdictswere unreasonableCRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE–CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL– IMPROPER ADMISSION OR REJECTION OFEVIDENCE – where learned judgeruled that various pieces of evidence were admissible, including evidenceobtained through useof a listening advice, evidence obtained through execution
of a search warrant, and conversations admitted under the Tripodi
principle – whether evidence was properly admitted – whether the
learned trial judge's discretion miscarried
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
CONVICTED PERSONS – WHEN REFUSED – GENERALLY – where appellant
sentenced to 12 years and eights
months imprisonment on the trafficking charge,
with an automatic serious violent offence declaration imposed – where a
concurrent
term of two years imprisonment was imposed for the possession charge
– whether sentence was manifestly excessive
Criminal Code Act 1899 (Qld), s 590AA
Drugs Misuse Act
1986 (Qld), Schedule 1, Schedule 2
Penalties and Sentences Act 1992
(Qld), s 13A
Police Powers and Responsibilities Act
2000 (Qld), s 69, s 127
Ahern v The Queen (1988) 165 CLR 100, cited
Bunning v Cross
[1978] HCA 22
(1978) 141 CLR 54, considered
Ousley v The Queen [1997] HCA 49
(1997) 192 CLR
69, cited
R v Burrows [2004]
QCA 306
CA No 166 of 2004, 20 August 2004, cited
R v Cannon [2004] QCA 440
CA No 74 of 2004, 19 November 2004, cited
R v Cannon [2005]
QCA 41
CA No 293 of 2004, 28 February 2005, cited
R v Christensen
[2002]
QCA 113
CA No 313 of 2001, 22 March 2002, cited
R v Douglas
[1994] QCA 267, cited
R v Fisher [2007] QCA 105
CA No 215 of 2006, 30 March 2007,
R v Geary [2003] 1 Qd R
64
[2002]
QCA 33, cited
R v Kashton [2005]
QCA 70
CA No 416 of 2004, 17 March 2005, cited
R v Lowe [2004]
QCA 398
CA No 389 of 2003, 29 October 2004, cited
Tripodi v The Queen
[1961] HCA 22
(1961) 104 CLR 1, considered
Judgment (148 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - MISDIRECTION AND NON-DIRECTION - GENERALLY - where evidence was given by various witnesses at trial who had received benefits under s 13A Penalties and Sentences Act 1992 (Qld) - whether directions given by learned trial judge in relation to this evidence were adequate - whether verdicts were unreasonable
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - where learned judge ruled that various pieces of evidence were admissible, including evidence obtained through use of a listening advice, evidence obtained through execution of a search warrant, and conversations admitted under the Tripodi principle - whether evidence was properly admitted - whether the learned trial judge's discretion miscarried
[3]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - WHEN REFUSED - GENERALLY - where appellant sentenced to 12 years and eights months imprisonment on the trafficking charge, with an automatic serious violent offence declaration imposed - where a concurrent term of two years imprisonment was imposed for the possession charge - whether sentence was manifestly excessive
Director of Public Prosecutions (Queensland) for the respondent
[21]
[1] THE COURT: On 17 November 2005, the appellant was convicted upon the verdict of a jury of one count of trafficking in the dangerous drug, methylamphetamine, and one count of possessing a dangerous drug, methylamphetamine, in excess of two grams. The Crown alleged that the trafficking occurred between 31 December 1995 and 15 January 2003. The possession offence was alleged to have been committed on 14 January 2003.
[22]
[2] Methylamphetamine became a Schedule 1 drug under the Drugs Misuse Act 1986 (Qld) in September 2001. In sentencing the appellant, the learned sentencing judge found that, by far, the greater part of the appellant's trafficking and the profits derived therefrom related to the period when methylamphetamine was a Schedule 2 drug. Accordingly, her Honour proceeded on the basis favourable to the appellant that the maximum sentence for the trafficking offence was 20 years, and sentenced the appellant to 12 years and eight months imprisonment for the offence of trafficking. Her Honour also sentenced the appellant to a concurrent term of two years imprisonment in respect of the possession charge.
[23]
[3] The principal grounds in the appellant's notice of appeal against the convictions are that several pieces of evidence were erroneously admitted in the Crown's case against him. As a result, he contends that the convictions must be set aside. The appellant also seeks leave to appeal against sentence on the ground that it was manifestly excessive.
[24]
[4] The appellant had the benefit of legal representation at trial; but he was unrepresented on the appeal. In his submissions on the appeal, the appellant ranged beyond the grounds in his notice of appeal to complain, amongst other things, that he was convicted on the false testimony of a number of witnesses, and that the learned trial judge's directions to the jury were not sufficient to alert the jury to the dangers of acting upon that evidence. Some of the appellant's complaints were difficult to understand; others must fail for want of any evidentiary foundation. In the end, we have concluded that the appellant's convictions must stand.
[25]
[5] We will briefly summarise the Crown case at trial before turning to discuss the appellant's contentions in relation to whether the convictions were soundly based, and as to the disputed admission of evidence and the other matters agitated by the appellant on the hearing of the appeal.
[26]
[6] The appellant was under police surveillance from March 2002. He was arrested on 14 January 2003. On that date, a quantity of methylamphetamine, which represented 2.323 grams of the pure substance, was found at his residence at 45 Hume Parade, Paradise Point while his premises were being searched. These drugs were the subject of the possession charge.
[27]
[7] The drugs were found by police in two bags in a bookshelf with Bendigo Bank withdrawal and transfer forms signed by the appellant's nephew, David Burton, at the appellant's direction, and given to the appellant by Burton. At the appellant's request, Burton had become a director of Cooke Investments Pty Ltd which held accounts with Bendigo Bank.
[28]
[8] A quantity of powder containing 55.849 grams of pseudoephedrine was also found in a plastic bag in a spare bedroom during the course of the search. Police also found 125 unused small clip seal bags in the garage and a set of electronic scales in the kitchen.
[29]
[9] During the course of surveillance of the appellant after March 2002, police intercepted a large number of telephone calls which suggested that the appellant was a participant in an enterprise involving the production and sale of methylamphetamine. These recordings were relied upon by the Crown for a number of reasons. Principally, so far as the Crown was concerned, the telephone intercepts served to record the appellant in the act of transacting sales and acquisitions of the drug and its precursors respectively. They also tended to support the reliability of the evidence of five witnesses who gave direct evidence of dealings with the appellant in relation to his trafficking in methylamphetamine from a time in 1996. These were Rebecca Benson, Thomas Pfaff, John Hooning, Sheree Bailey and Paul Johnson.
[30]
[10] In relation to the trafficking charge, the Crown's case was that the appellant used pseudoephedrine and ephedrine to make methylamphetamine for sale. In 1998 and 1999, the appellant acquired large quantities of Sudafed tablets from suppliers such as the witness, Hooning. It was alleged that the appellant extracted pseudoephedrine from those tablets with the assistance of the witness, Bailey, who gave evidence to this effect. In 2000 and 2001, the appellant obtained large quantities of ephedrine through the witness, Pfaff.
[31]
[11] Each of Hooning, Bailey and Pfaff had been convicted of offences involving the appellant. Each had received a reduced sentence under s 13A of the Penalties and Sentences Act 1992 (Qld) in return for a promise of co-operation with the authorities in relation to the prosecution of the appellant. Hooning had also been given an undertaking from the Attorney-General that he would not be prosecuted for any offence on his part which his evidence might reveal.
[32]
[12] Benson gave evidence to the effect that the appellant had been selling methylamphetamine in quantities of one ounce or more from 1996. Benson had been given an undertaking from the Attorney-General that she would not be prosecuted for any offence on her part which her evidence might reveal.
[33]
[13] According to the witnesses, Hooning, Bailey and Johnson, the appellant sold methylamphetamine to them and to others in 2002. It should be noted that Johnson had received a reduced sentence in return for his co-operation with the authorities against the appellant.
[34]
[14] Mr Ross, a forensic accountant, gave evidence of an analysis of the records of the finances of the appellant and associated companies between 22 January 1999 and 14 January 2003. This analysis revealed an unexplained surplus of about $1,000,000. The witnesses gave evidence to the effect that the appellant had access to 10 or 11 kilograms of ephedrine in the period 1999 to 2001 which was made available to him by Pfaff. This would have been able to produce about 7.8 kilograms of methylamphetamine. The sale of this quantity of methylamphetamine was apt to explain the surplus revealed by the financial analysis.
[35]
[15] The appellant contended that a number of rulings as to the admissibility of evidence were wrongly made. Some of those rulings were made on an application under s 590AA of the Criminal Code; they concerned the following evidence: conversations recorded through the use of a listening device installed in a Jaguar motor vehicle; items found in the course of a search of the Jaguar vehicle; a gun found at the appellant's premises; the finding of 20 kilograms of iodine in the possession of an associate of the appellant; and conversations between persons other than the appellant, admitted on the Tripodi[1] principle. In addition, the appellant contended that evidence of the location of a laboratory for the production of methylamphetamine in the possession of another of his associates, the finding of some drums of chemicals elsewhere, the finding of a small amount of methylamphetamine at his own house, and evidence of his financial situation should not have been admitted.
[36]
[16] In April 2002, officers of the then National Crime Authority obtained from the Supreme Court a warrant pursuant to s 127 of the Police Powers and Responsibilities Act2000 (Qld), enabling them to install tracking and listening devices in a Jaguar vehicle used by the appellant but registered in the name of his girlfriend. They had no opportunity to install those devices until June 2002, when they became aware that a search warrant was to be executed on the appellant's premises in connection with an unrelated fraud investigation. Two police officers gave evidence about the matter on the s 590AA application: Senior Constable Walker, from the National Crime Authority and Senior Constable de Villiers, from the Queensland Police.
[37]
[17] De Villiers explained that he was investigating complaints that two named suspects (not the appellant) had induced people to sign leases for vehicles which were then handed over to the suspects on the pretence that they (the lease-holders) would be paid an income from their use; the vehicles were not returned and no payments were made. On information that a number of the vehicles was at the appellant's premises, de Villiers applied for and executed a search warrant there. Some 22 vehicles were listed on his application for a search warrant, but in fact he seized 44, including the Jaguar, although there was no specific complaint made in respect of it. He had decided to seize it, he said, because he believed it fitted the profile of the cars involved in the investigation: new, expensive motor vehicles. He would have done so whether or not the National Crime Authority officers had expressed an interest in it. Eventually he had reached a conclusion that the appellant had wrongly claimed a lien over the vehicles the subject of his investigation, rather than obtaining them by fraud.
[38]
[18] Walker, the National Crime Authority officer, attended at the search and took the Jaguar back to a police station where the devices were installed. His explanation for the seizure was that the vehicle was expensive and was not registered to the appellant, although it was at his premises. He was aware, however, that the appellant used the Jaguar vehicle as his own, although it was registered in his girlfriend's name. He conceded that part of the reason for taking the vehicle was to enable the installation of the devices.
[39]
[19] Initially, Walker alone was called to give evidence on the s 590AA application, and the learned judge hearing the application made a ruling after his evidence had finished. She accepted that the real reason for the removal of the vehicle to the police station was to facilitate the installation of the listening device. Although the warrant in relation to the listening device gave power to enter the vehicle, covertly or through subterfuge, in order to install the device, her Honour did not consider that the power extended to removing the vehicle to the police station for that purpose. Although she regarded the taking of the vehicle as in excess of the power granted by the warrant, she accepted that the National Crime Authority officers concerned acted under a misapprehension as to the extent of their power to use subterfuge in installing the device. Highly probative evidence had been obtained. On an exercise of the Bunning v Cross[2] discretion, she concluded that the evidence obtained by the use of the listening device ought to be admitted.
[40]
[20] De Villiers gave his evidence subsequently. Her Honour declined to alter her ruling after hearing it, accepting that de Villiers' investigation into fraud complaints was a genuine one.
[41]
[21] Her Honour's exercise of discretion to admit the evidence was based on a proper application of Bunning v Cross principles. There was, as she found, no deliberate or reckless disregard of the law. The evidence obtained of incriminating conversations between the appellant and others was cogent, the offence a very serious one. The correctness of her initial conclusion was reinforced by de Villiers' subsequent evidence. It seems clear from that evidence that de Villiers had a proper basis to seize the vehicle; so that if Walker, for his part, acted beyond his powers, it made very little difference to the end result of the vehicle arriving back at the police station where the devices could be installed. Her Honour's exercise of discretion did not miscarry.
[42]
Evidence found in execution of the search warrant on the Jaguar
[43]
[22] On 25 July 2002, a search warrant was executed at the residence of the appellant's girlfriend at Hervey Bay. The Jaguar car was in the yard at the premises and was searched. In the course of that search a list, which became an exhibit at the trial, was found. It was a list of chemicals and tools which could be used to manufacture methylamphetamine without using ephedrine or pseudoephedrine. The appellant's fingerprints were found on the document. A receipt for the purchase of some of the chemicals listed was also found in the car; it was identified by the witness Hooning as provided by him to the appellant.
[44]
[23] The warrant was obtained on the basis of a telephone call between the appellant and his girlfriend in which cryptic, apparently inexplicable references were made, and after which the appellant went hurriedly to the Hervey Bay property. Counsel for the defence at the pre-trial hearing argued the items obtained through the execution of the warrant ought to be excluded, because the evidence was not sufficient to give rise to reasonable grounds for suspecting that evidence of the commission of an offence was at the premises, as required by s 69 (now s 151) of the Police Powers and Responsibilities Act. While there might be reasonable grounds for suspicion so as to justify a search of the appellant, that did not extend to the search of his girlfriend's premises. No issue was taken as to the search of the vehicle on the premises, as opposed to whether the warrant for the premises as a whole was properly obtained. Nor was any argument made as to any defect on the face of the warrant or any error as to jurisdiction on the part of its issuer.
[45]
[24] Her Honour ruled against exclusion of the evidence on the basis that she was satisfied there were reasonable grounds for suspicion arising from the telephone call, the relationship between the appellant and his girlfriend and the urgency with which he had travelled to the premises. It is doubtful that it was necessary to embark on any such consideration; insufficiency of evidence is not a ground for a collateral challenge to the issue of a warrant, such as was being undertaken here: see Ousley v The Queen.[3] But even assuming such a review were permissible, no basis was shown for a finding that it was not open to the original issuer of the warrant to arrive, on that evidence, at the state of reasonable satisfaction required by s 69.
[46]
[25] On 5 October 2002, a highway patrol officer at Ballina in northern New South Wales pulled over a vehicle driven by George Ziedan and, with Mr Ziedan's permission, searched it. In the course of the search, he found 20 kilograms of iodine and a receipt for $7,700 for its purchase, as well as a list of chemicals.
[47]
[26] The background to that seizure is as follows: intercepted telephone conversations between the appellant and a man named Taui indicate that Taui had performed various tasks for the appellant, obtaining "tools" on a list and collecting debts for him. On 30 August 2002 a conversation, recorded by means of the listening device in the Jaguar, took place between Ziedan, the appellant and Taui. It began with Taui and the appellant discussing a "hydriotic" recipe from a Russian source. References were made to pseudoephedrine. There was some discussion about ingredients and Ziedan's being able to get things for the appellant. In September, Ziedan went to Sydney; on his return Taui telephoned the appellant to tell him that he had the "thing" Ziedan had been talking about, which would save the appellant "a few dollars". In October, Ziedan went again to Sydney, and on his return journey was intercepted with the 20 kilograms of iodine. A chemist gave evidence for the Crown that iodine could be used in the production of methylamphetamine and that the list of chemicals found in Ziedan's car had its origins in a Russian publication outlining a process for producing a mixture of ephedrine and pseudoephedrine.
[48]
[27] The learned judge on the pre-trial hearing found that reasonable evidence of pre-concert between the appellant, Taui and Ziedan to source chemicals for the production of methylamphetamine was available, so that, applying the Tripodi principle, the finding of the 20 kilograms of iodine was properly adduced as evidence. That conclusion was clearly correct. The conversation between the three men on 30 August 2002 was direct evidence as against the appellant of pre-concert with Taui and Ziedan to obtain the ingredients necessary for the production of methylamphetamine; which would, in due course, be trafficked by the appellant. It was open to conclude that the possession of iodine by Ziedan was an act in furtherance of their common purpose. The evidence was properly admitted.
[49]
[28] On the s 590AA hearing it was argued that evidence of conversations between Pfaff and others - Rebecca Benson, a covert police operative using the name Barnes, and John Donnelly - and conversations involving George Ziedan should not be admitted into evidence. The basis on which the argument was put at first instance was that some of the conversations were not in furtherance of a common plan but were merely narratives of past events. Alternatively, it was suggested that conversations relating to production of precursor drugs did not go to prove trafficking. On appeal, the appellant made a different complaint: that the evidence of conversations involving persons other than himself ought not to have been admitted, because the prosecution case was not sufficient to establish pre-concert beyond reasonable doubt. But that of course was not the test for her Honour in deciding whether to admit the evidence; in that context the question was whether there was reasonable evidence of the appellant's participation.[4]
[50]
[29] The conversations involving Ziedan about which complaint was made at first instance were not clearly identified but were, presumably, a series of conversations between him and Taui in which Ziedan kept Taui informed of his movements, advising for example, that he was on his way home from Sydney or that he was collecting an order, as well, possibly, as conversations in which he arranged to make purchases from the Sydney factory. For the reasons already given as to the pre-concert between the appellant, Taui and Ziedan, those conversations were properly regarded as advancing the common purpose of obtaining the ingredients.
[51]
[30] On the Crown case, the relevant common purpose, as between Pfaff and the appellant, was supply of methylamphetamine, for the manufacture of which ephedrine or an alternative had to be obtained. Pfaff's evidence, which was supported by recorded conversations with the appellant, was that he sold ephedrine obtained from John Donnelly to the appellant over a period between March and August 2001. At various points in 2002, Pfaff relayed Donnelly's offers of other forms of ephedrine to the appellant. In May 2002, Donnelly sought to buy methylamphetamine; the appellant gave Pfaff a sample for provision to him. In November 2002, Donnelly gave Pfaff a couple of samples of ephedrine which he got Barnes, who had a set of scales, to weigh, before passing them on to the appellant.
[52]
[31] Barnes also sought to buy methylamphetamine; Pfaff passed on his requests to the appellant and relayed the latter's responses. On a number of occasions, at the appellant's behest, Pfaff sought "expert" advice from Rebecca Benson on questions such as whether there was a way to make "speed" without using ephedrine (resulting in the provision of the list of ingredients and equipment) and how to remove blockers from Sudafed tablets.
[53]
[32] Pfaff gave general evidence that in 2001 he had dealings with Donnelly who supplied ephedrine and pseudoephedrine. In April 2002, Donnelly asked him if he could obtain a pound of "speed". He organised a sample from the appellant to give to Donnelly. Thereafter there was a series of recorded conversations between Pfaff and the appellant about the unsatisfactory quality of the sample which was provided. Donnelly did not proceed with the purchase of the pound.
[54]
[33] On 9 June 2002, Pfaff telephoned Donnelly to ask whether the "stuff" had come in. Pfaff explained in evidence that that was a reference to ephedrine, and that at the time he made the call he was actually at a meeting with Benson and the appellant. Donnelly said there was some difficulty because of a "big investigation over there". On 3 July 2002, Donnelly rang Pfaff to advise that liquid ephedrine was now available. Within a minute, Pfaff rang the appellant and arranged a meeting. There was, shortly after, a conversation between Pfaff and Donnelly in which, Pfaff said in evidence, he raised concerns that the appellant had expressed as to purity and quality, and how liquid ephedrine could be used. There were some conversations between Pfaff and Donnelly over the next few days about the ephedrine and its chemical content. Eventually, it turned out that the product was in fact hypophosphorous acid, not ephedrine or pseudoephedrine.
[55]
[34] In November 2002, there were conversations between Pfaff and Donnelly about Donnelly's getting a sample which he could supply to Pfaff. On 25 November 2002, Donnelly said he would drop off "a little something" at Pfaff's house. Pfaff promptly rang the appellant, indicating he had good news, and arranged a meeting. (Later Pfaff showed Barnes pseudoephedrine, which Barnes weighed at 9.5 grams). Then Pfaff rang Donnelly, mentioned that the sample was somewhat short, and that he needed "a hundred". The following day there were discussions by telephone between Donnelly and Pfaff about money and a meeting was arranged at which Donnelly gave Pfaff a larger sample, subsequently weighed at 58.4 grams. That sample, Pfaff said in evidence, was later given to the appellant, who paid him for it.
[56]
[35] In mid-December 2002, Donnelly telephoned Pfaff and offered him ephedrine from a vet, later giving him a sample. On the following day, Pfaff rang the appellant telling him he had some information on "imported corvettes". They arranged a meeting at which, according to Pfaff, he gave the appellant the sample and received $1,000 from him. As it proved, the sample was unsatisfactory.
[57]
[36] There was abundant evidence of a longstanding arrangement between the appellant and Pfaff that the latter would obtain ephedrine or pseudoephedrine for the appellant. His dealings with Donnelly were in furtherance of that common purpose. Their telephone discussions about samples and supplies was usually followed, on the evidence, by meetings with the appellant at which, on some occasions, what was obtained from Donnelly was passed on to him. There was also direct evidence through recorded conversations between Pfaff and the appellant of the two working together to supply Donnelly with a sample in anticipation of supplying to him. The evidence of the conversations between Donnelly and Pfaff in both connections was unquestionably admissible.
[58]
[37] Objection was taken to the admission of conversations between Pfaff and Barnes, the undercover officer. It is difficult to identify precisely what conversations were being discussed on the s 590AA application, and it appears that there were negotiations between defence and Crown as to exclusion of some matters. The conversations between Barnes and Pfaff which were ultimately admitted at the trial took place in the second half of 2002. Barnes had expressed interest, in early October 2002, in buying methylamphetamine. Pfaff indicated he had a contact who would sell a pound at a time. The product was good, but not as good as when the supplier had ephedrine. The two agreed that there would be a first deal in an amount of an ounce, as a taste for bigger deals, and that they would talk in code about such transactions.
[59]
[38] On 14 October, Pfaff said that the supply could not be made at that point, that his contact was going quiet for a while, but he was prepared to go back to him if Barnes would buy a pound. Their discussions continued along the lines that Pfaff would get back to Barnes with a price, but no transaction eventuated. Pfaff's evidence was that he had asked the appellant for methylamphetamine. The appellant had said he was unable to supply and was trying to get hold of a necessary contact. Recorded telephone conversations were admitted into evidence in which Pfaff and the appellant spoke about the appellant's attempts to get hold of his "friend" and Pfaff emphasised the keenness of the proposed purchaser.
[60]
[39] Pfaff and Barnes discussed efforts to get hold of pseudoephedrine to enable Pfaff's principal to manufacture. In the event, a small amount of pseudoephedrine was obtained from Donnelly, the 9.5 grams which Barnes weighed. Pfaff and Barnes discussed the inadequacy of the quantity and whether Donnelly could provide another 100 grams. On Barnes' evidence, that conversation was followed by a meeting between the appellant and Pfaff at a fast food outlet which he observed from a distance. After that, Pfaff informed him that with the ephedrine he was going to sell to the appellant, it should be possible for him, Barnes, to buy a pound of methylamphetamine. On a later occasion, Barnes met Pfaff to weigh what was supposed to be 100 grams of pseudoephedrine which Pfaff had obtained from Donnelly, but which turned out to be 58.4 grams. In January 2003, Barnes observed another conversation between Pfaff and the appellant, after which Pfaff conveyed the news to him that he had asked the appellant to get a pound for him but the appellant had said he could not do so at the moment.
[61]
[40] The role of the conversations between Pfaff and Barnes was said by the Crown to be two-fold: they were designed to promote the obtaining of pseudoephedrine from Donnelly for provision to the appellant and the appellant's supply, through Pfaff, of methylamphetamine to Barnes. Given the substantial evidence from Pfaff, supported by recorded conversations with the appellant, as to his role in obtaining chemicals and supplying methylamphetamine, there was undoubtedly a proper basis of pre-concert established for admission of the evidence, which concerned acts advancing the common purpose.
[62]
[41] Counsel for the appellant took issue on the s 590AA application with conversations on 15 and 16 October 2002 between Pfaff and Benson dealing with an ammonium blocker in a "big drum" of a substance said to be of "pharmaceutical grade". Benson apparently took advice from another source and reported that it should be run through the "process" and there ought not to be too much wrong with it. In the course of those conversations, Pfaff expressed some exasperation with the appellant, saying, in effect, that he could take what he got.
[63]
[42] That evidence, the Crown said, came in the context of an offer of pseudoephedrine by Donnelly, which ultimately led to the provision of the small sample. The evidence was admitted, not as evidence of the truth of Benson's responses, but as evidence of Pfaff's endeavours to get information for the purposes of the proposed procuring of precursor chemicals. On that basis, it was rightly admitted. The arrangement between the appellant and Pfaff extended to the obtaining of advice of the kind from Benson for the purpose of obtaining ingredients. That was evidenced by earlier recorded telephone calls in which the appellant spoke to Pfaff of wanting to "run things by" Benson and Pfaff relayed her messages to the appellant. In addition, the appellant was recorded telling his girlfriend that Benson had given him "some good information".
[64]
The methylamphetamine located at the appellant's premises
[65]
[43] As we have mentioned above, on 14 January 2003, the appellant's house was searched and two packets of methylamphetamine were found hidden in a bookcase in the study. The gross amount of powder was about 3.85 grams; it was 2.323 grams pure. Some Bendigo Bank deposit and withdrawal forms, signed by the appellant's nephew, were found in the same area. Evidence was given to the effect that the nephew signed such documents at the appellant's direction. On the same search, some pseudoephedrine, of a total weight of 87.538 grams, 55.849 grams pure, was found in a spare bedroom in a clip seal bag within a shopping bag.
[66]
[44] The appellant argued that it was not established beyond reasonable doubt that either substance was his. Since the pseudoephedrine was not the subject of any charge, it was not, of course, necessary that the jury be satisfied to that standard in respect of it. Its finding was a circumstance from which the jury, depending on what it made of it, was entitled to draw an inference as to the appellant's activities. The learned trial judge directed appropriately on circumstantial evidence and the drawing of inferences. The methylamphetamine, on the other hand, was the subject of a charge; the jury was directed that it had to be satisfied beyond reasonable doubt that the appellant knew of its existence in the bookcase.
[67]
[45] The appellant's contention before this Court was that a person sharing the house with him owned the bookcase and its contents, apart from the bank slips; but, of course, no evidence to that effect was given at trial. The police officers did give evidence that another person, who was present at the house when it was searched, lived intermittently on the premises. In the summing up, the jury was reminded of that evidence, as well as of the finding of the methylamphetamine with the withdrawal slips. It was appropriately directed on the subject. There can be no legitimate complaint of its conclusion, on the evidence, that the appellant was in possession of the methylamphetamine.
[68]
[46] The appellant contended on appeal that the unexplained funds identified by Mr Ross, the forensic accountant, in his analysis were in fact the proceeds of his cash-based businesses, but he did not, at trial, give evidence to that effect. The appellant also pointed out that the analyst had varied his evidence, beginning at the start of the trial with a figure for funds from unknown sources of $1,800,000 and subsequently reducing it to $1,000,000. That aspect was simply explained by the analyst's taking into account further evidence that emerged during the trial. The learned judge gave the jury appropriate directions about the caution to be applied in approaching the evidence and its limitations: certain assumptions had been made, and poor record keeping meant some documents were not available. There is no substance to this ground.
[69]
[47] The applicant contended that evidence of the search of the premises of a man called Wardrop ought not to have been admitted. A witness named Foden said that he had, as a favour to the appellant, taken three or four drums the appellant gave him to Mr Wardrop's premises. Mr Wardrop confirmed that Mr Foden had left some containers at his house. He thought they were two black ones and some others. Two police officers, Meehan and Walker, who went to the premises, gave unchallenged evidence that they located four drums containing chemicals some of which could be used in the manufacture of methylamphetamine. Walker said that there were in total two black 20 litre drums and two white drums; an additional white drum held only a bottle. The witness Hooning said that the white drums matched some he had purchased and supplied to the appellant.
[70]
[48] The appellant maintained that Foden's evidence was "coerced" and that the police officer Meehan had prepared a receipt which originally referred to glassware and apparatus for use in the production of methylamphetamine as well as drums of chemicals. He propounded a theory that the receipt had been altered as part of a conspiracy between the Crown witnesses, police and the Crime and Misconduct Commission to secure his conviction. It appears that at committal Mr Meehan acknowledged a mistake in the receipt, which he said arose from using a proforma document. All the evidence was to the effect that only the drums were found and that there were no chemicals on the premises. The appellant's counsel did not, unsurprisingly, attempt to pursue the matter at trial. There was no evidence to support the appellant's theory, and there is nothing in this ground.
[71]
[49] In the course of the search on 14 January 2003, a concealable firearm was located in the garage area of the appellant's house. Objection was taken on the s 590AA application to admission of that evidence. The Crown responded that it was to be regarded as part of "the trappings" of a drug trafficker and thus probative that the appellant was involved in that business. Her Honour ruled that the finding of the firearm was admissible; that it was relevant to whether the defendant was trafficking that he thought he was in need of the protection of a handgun. Having made her ruling, the learned judge said that she was prepared to revisit it later, should counsel for the appellant wish to reopen the issue. No such application was made.
[72]
[50] The witness Hooning gave evidence at the trial that he had given the weapon to the appellant. But no evidence was given in the course of the trial as to the appellant's at any time using it, or even referring to its existence. There were colourful references to guns in other contexts: Pfaff claimed to the undercover operative that he had once had a gun held to his head and the witness Benson also said that she had once been threatened with a gun; but those instances had no relation to the appellant. The evidence of this firearm's location on the appellant's premises undoubtedly had the capacity to be prejudicial, and its probative value in regards to the crime of trafficking, if any, was of only slight value as proof that "he had the means to protect the illegal drugs he produced and the proceeds from his trafficking"[5] in the absence of evidence that it was being used in connection with the business of trafficking.[6] There is something to be said for the view that it should not have been admitted. However, her Honour directed the jury that the weapon had been given to the appellant by Mr Hooning and "there was no evidence that it was used or threatened to be used or was being used in conjunction with any business of trafficking". That clear direction overcame any risk of impermissible reasoning. No miscarriage of justice resulted from the admission of the evidence.
[73]
[51] On 23 April 2002, the appellant was telephoned by a man named Enriquez and the two were seen to meet for about a quarter of an hour near the appellants house. They met again for five or six minutes on 9 May 2002. Neither meeting was recorded and the subject matter of their discussions was not known; but, the Crown contended, the meetings came about after negotiations over the proposed sale of a pound of methylamphetamine to Donnelly fell through.
[74]
[52] On 14 January 2003, a warrant was executed on Enriquez's residence. Enriquez was in possession of glassware for producing methylamphetamine and a production process was under way. After the evidence was led, defence counsel expressed his concern about the lack of any demonstrated connection between what was found at Enriquez's house and the appellant. The Crown contended that the evidence was important to show that Enriquez was a person connected with methylamphetamine.
[75]
[53] The learned trial judge ruled that the evidence was admissible on the basis that it "coloured" the 2002 transaction. In accordance with that view, she told the jury shortly after it was led that it was not suggested that the appellant had anything to do with what was found at Enriquez's premises; rather, the prosecution relied on it to give a context to the earlier meetings in April and May 2002. That warning was repeated in the course of her Honour's summing-up. She reminded the jury that, depending on what other evidence it accepted, the finding of methylamphetamine on Enriquez's premises in 2003 might give some context to the earlier meetings, but nothing was known of Enriquez's actual activities in 2002.
[76]
[54] The evidence was, at best, of very tangential relevance and the fact that the event in question occurred several months after the appellant's last contact with Enriquez made it all the more remote. It is doubtful that it had any real probative effect and it was capable of being prejudicial, inviting a conclusion of guilt by association; but in light of the clear warning given to the jury that the appellant had no connection with what was found, it is unlikely that the jury used it in that way. No miscarriage of justice resulted from its admission.
[77]
The trial judge's directions in relation to the witnesses Benson, Hooning, Johnson, Pfaff and Bailey
[78]
[55] The appellant argued that the learned trial judge failed to give the jury a sufficient warning as to the possible unreliability of the witnesses, Benson, Hooning, Johnson, Pfaff and Bailey, stemming from the arrangements made between them and the authorities relating to the giving of evidence against the appellant. This argument is without substance. In truth, the learned trial judge gave the jury stringent warnings in this regard. The learned trial judge told the jury:
[79]
"The prosecution relies on the evidence of Johnson, Pfaff, Hooning and Bailey, each of whom gave a statement to the police which had the effect of reducing his or her own sentence. Under Queensland sentencing law, sentences may be reduced by the Court where the offender undertakes to cooperate with law enforcement authorities by giving evidence against someone else. If an offender receives a reduced sentence because of that sort of cooperation and then does not cooperate in accordance with his or her undertaking, the sentencing proceed[ings] may [be] reopened and a different sentence imposed and you will recall each of those witnesses were cross-examined about the potential sentence that could be imposed on them if they did not cooperate in giving evidence against [the appellant] in this trial. You, therefore, may feel that there is a strong incentive for any or all of Johnson, Pfaff, Hooning or Bailey to implicate [the appellant] when giving their evidence and that's a reason for scrutinising the evidence of each of these witnesses with great care. You should only act on the evidence of each of these witnesses if, after considering it, and all the other evidence which you accept in this case, you are convinced of its truth and accuracy.
In this case the prosecution relies on the evidence of Ms Benson who, you heard, has been given an indemnity against prosecution, provided that she gives truthful evidence here. That's something different from having a reduction in a sentence. It is an indemnity against prosecution that's dependant upon her giving truthful evidence in this trial.
There is a risk that having been protected from prosecution in that way Ms Benson may have an incentive not to depart from the statements she gave to the police, whether it is right or wrong, so as to not arouse any suspicions of untruthfulness, and she may wish to ingratiate herself with the authorities to ensure that she maintains her indemnified position. That's a reason for scrutinising her evidence with great care.
You should only act on any of her evidence if after considering it and the other evidence in this case which you accept you are convinced of its truth and accuracy.
This is also another reason to scrutinise the evidence of Hooning with great care. He not only got the benefit of a reduced sentence for the offence with which he was charged, but he was also given an undertaking by the Attorney-General that any statement he made in the course of giving evidence in this proceeding would not be used in evidence against him such as to prosecute him for any offence which his evidence might have disclosed was committed by him here in Queensland.
[80]
[56] We note also that, subsequently, the learned trial judge drew the jury's attention to some imprecision in her comments about the arrangements between these witnesses and the prosecuting authorities. Her Honour said:
[81]
"Yesterday, I referred to Benson having an indemnity against prosecution provided she gave truthful evidence. That was loose language on my part. I then referred you in my summing-up to Hooning also having an undertaking by the Attorney-General that any statement he made in the course of giving evidence in this proceeding would not be used in evidence against him such as to prosecute him for any offence which his evidence might have disclosed was committed by him in Queensland.
Although I use different language when I was talking about the position of Benson and Hooning, I intended to convey, as is the case, that each has the benefit of the same type of undertaking given by the Attorney-General in respect of evidence they give in this proceeding, and referring to it in Benson's case as an indemnity from prosecution was a shorthand way of referring in full to the undertaking given by the Attorney-General."
[82]
[57] The learned trial judge made specific comments on other aspects of the evidence of each of Benson, Hooning, Johnson, Pfaff and Bailey which were apt to cast doubt on the reliability of the witness. The learned trial judge reminded the jury of the points made by the appellant's counsel which were adverse to the reliability of each of these witnesses. In this regard, her Honour reminded the jury:
[83]
(i) he had himself been involved in the production of methylamphetamine, and had previously been a heroin addict for nearly 20 years;
(ii) it was inherently unlikely that Hooning would have bought methylamphetamine from the appellant if he could have produced it cheaper himself.
[84]
(i) his evidence that he met the appellant for the first time in 2001 and that the appellant Benson and Pfaff had met together only once, on 9 June 2002. Benson said that she had met the appellant with Pfaff in 1995;
(ii) Pfaff said that Benson was not present on the two occasions when he sold ephedrine supplied by Donnelly, but Benson said she was.
[85]
(i) her evidence that the appellant supplied her with methylamphetamine on 30 May 2002 was not supported by the evidence of police officers who had the appellant and Bailey under surveillance on that occasion;
(ii) her claim that she did work for the appellant in extracting ephedrine from Sudafed tablets because she was intimidated by him was not supported by evidence of the telephone intercepts and video surveillance;
[86]
(d) in relation to Johnson - there were inconsistencies between some aspects of his evidence and telephone intercepts of his conversations with the appellant;
[87]
(i) she had been a drug addict for a number of years from 1995 and had problems with depression and anxiety;
(ii) she had lied to the authorities about the nature of her involvement with illegal drugs.
[88]
[58] The jury were made fully alive to the doubts which might reasonably be said to attend the reliability of each of these witnesses.
[89]
[59] The appellant also argued that Benson, Johnson, Pfaff, Hooning and Bailey were unreliable witnesses whose testimony could not furnish a reasonable basis for a verdict of guilty. As we have said, there is no reason to think that the jury did not take into account all the criticisms which might legitimately be made of the evidence of these witnesses. Even taking these matters into account, it was reasonably open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt of the appellant's guilt. That is because there was sufficient support for each of these witnesses in the other evidence adduced by the Crown.
[90]
[60] In the case of Pfaff, his evidence that he arranged to buy a pound of methylamphetamine from the appellant is confirmed by telephone intercepts of conversations between them between 20 April 2002 and 23 April 2002. Pfaff also gave evidence that the appellant was trying to discover a method of producing methylamphetamine which did not require ephedrine or pseudoephedrine as a base. Pfaff's evidence was supported by telephone intercepts in May and June 2002, and by the discovery in the appellant's motor vehicle of a list (which became Exhibit 1) of chemicals and tools which could be used to manufacture methylamphetamine without using ephedrine or pseudoephedrine. One of the items on the list was a "magnetic stirrer". Telephone intercepts record the appellant and Pfaff speaking about a magnetic stirrer on 20 May 2002.
[91]
[61] A receipt for the purchase of some of the chemicals referred to in Exhibit 1 was also found in the appellant's car in July 2002. Hooning said that the receipt was prepared by him for the appellant after purchasing the chemicals listed in Exhibit 1. Video surveillance showed Hooning putting drums of chemicals in the appellant's car on 1 July 2002.
[92]
[62] Hooning agreed with police to wear a recording device prior to a discussion with the appellant's daughter, Angela Cannon. The recorded conversation between Hooning and Angela Cannon took place on 9 January 2003. The transcript records Hooning offering Angela Cannon large quantities of Sudafed tablets for the appellant. As appears from the record of a phone call intercepted later that day, Angela Cannon informed the appellant of this offer in terms which reflect the terms of the conversation between Hooning and Angela Cannon. The intercepted conversation between Hooning and Angela Cannon provided a factual context for the intercepted conversation between Angela Cannon and the appellant. More importantly for present purposes, the episode also provides support for Hooning's evidence that he had purchased Sudafed tablets for the appellant as a source of pseudoephedrine. Bailey's evidence that she extracted pseudoephedrine from Sudafed tablets for the appellant is also consistent with Hooning's evidence that he was acquiring quantities of Sudafed tablets for the appellant.
[93]
[63] Bailey said that her work ceased when the appellant told her that he was obtaining supplies of ephedrine from overseas. Her evidence in this regard was supported by Pfaff's evidence that he was, for a time, supplying the appellant with ephedrine imported from Canada. The Crown argued that Bailey could not have known that the appellant was obtaining supplies of ephedrine from overseas unless he had told her. This was disputed by the appellant on the hearing of the appeal on the basis that Bailey might have been "schooled" by the investigating police, but it was not suggested to Bailey in cross-examination that she had been given this information by Pfaff or the investigating police.
[94]
[64] Bailey's evidence of purchasing or attempting to purchase methylamphetamine from the appellant is supported by telephone intercepts in May, July, August and September 2002. Further, Bailey was convicted and sentenced on the basis of her admissions in respect of these transactions. Her evidence was likely to be reliable for the very reason that it served to inculpate her.
[95]
[65] Benson's evidence that she provided the appellant with a recipe to produce methylamphetamine is supported by a telephone intercept on 9 June 2002, and the discovery of Exhibit 1 in the appellant's car.
[96]
[66] It should also be said in Benson's favour that she approached the authorities voluntarily to provide information about the appellant's activities, and assisted police by introducing a covert police officer to Pfaff. The appellant argued that it is wrong to accept that Benson had approached the authorities voluntarily. This is said to be because the initial letter which Benson said that she wrote to police indicating her wish to co-operate with the authorities was not tendered at trial. But Benson's evidence in this regard was never challenged. Absent a challenge by the appellant, there was no basis on which either the letter or the evidence of the police officer to whom it was written could have been adduced by the Crown.
[97]
[67] The appellant also complained that the witness Benson, claiming to be an adherent of Islam, had been allowed to give evidence while wearing a hijab. No objection was taken to Benson's manner of dress at trial. It is not at all clear how the course taken at trial can be said to have been irregular or, if it was, to have enured to the prejudice of the appellant.
[98]
[68] Johnson's evidence that he purchased methylamphetamine twice from the appellant was supported by telephone intercepts of 1 and 2 July 2002.
[99]
[69] The appellant has also sought leave to appeal against the sentence of 12 years and eight months imprisonment on the trafficking charge. That sentence carried with it an automatic declaration that the appellant was convicted of a serious violent offence.
[100]
[70] In the notice of appeal it was merely said that the sentence was manifestly excessive. In the written outline of submissions submitted by the appellant the following was said in relation to sentence:
[101]
"1. Sentence was manifestly excessive and failed to adequately consider comparative sentences or the appellant's lack of criminal history.
2. Sentence was based on conviction of Schedule 2 prohibited substance whereas the appellant was never found to be in physical possession of a large quantity of methylamphetamine. A quantity of methylamphetamine (2.3 grams) and 55 grams of ephedrine (Schedule 2A) was found in the applicant's home with extensive forensic examination failing to identify the substance as the sole property of the applicant and that the applicant who's [sic] home was used by a third party exercised sole control over the substances found.
3. Sentence is manifestly excessive when viewed in context with comparative sentences cited in this outline and when viewed with the total amount of methylamphetamine (2.3 grams) and ephedrine (55 grams) recovered during a lengthy Police and CMC investigation it has not been proved, beyond reasonable doubt that those substances were in the appellant's sole charge.
4. That the sentence is manifestly excessive when taken into account with the totality principle and the fact that the applicant was declared a Serious Violent Offender (SVO)."
[102]
[71] In order to put the sentence imposed into context it is first necessary to examine what the learned sentencing judge found was the extent of the appellant's trafficking. In the course of submissions with respect to sentence the learned sentencing judge observed that she thought the witnesses "Hooning and Bailey were quite compelling".
[103]
[72] In her sentencing remarks the sentencing judge referred to the fact that the trafficking was alleged to have occurred between 31 December 1995 and 15 January 2003, a period of seven years, but "most of the evidence in the trial focussed in the latter part of that period." It was noted that the applicant was "under police surveillance between March 2002 and 14 January 2003" and that surveillance indicated "a scale of trafficking at a lesser scale than the other evidence in the trial indicated." The learned sentencing judge went on:
[104]
"There was a financial analysis of your circumstances and those of related companies between January 1999 and 14 January 2003 that indicated a surplus of about $1,000,000 from unknown sources. I consider, in the light of all the evidence, that was put before the Court in this trial, that that figure of about $1,000,000 probably indicates the scale of your trafficking over the period from 1998 to the end of 2001.
On the evidence that I heard, particularly that of Hooning, Bailey, Pfaff and Benson, I am satisfied that you had access to 10 or 11 kilograms of ephedrine in the period 2000/2001 that would have been able to produce about 7.8 kilograms of methylamphetamine. Bailey's evidence was quite compelling. She did seven extractions of what she described as ephedrine but what was clearly pseudoephedrine from Sudafed tablets.
Each of the seven extractions produced 750 grams of pseudoephedrine which was capable, after processing, of producing 550 of methylamphetamine making a total of about 3.8 kilograms of methylamphetamine. That evidence alone indicates that you would have had access to 10 or 11 kilograms of methylamphetamine during the period of 1999 to 2001. Having access to, at least, that amount of methylamphetamine is consistent with the size of the unexplained funds the financial analysis produced."
[105]
[73] The sentencing judge then went on to note that the appellant was involved in a smaller scale of trafficking during the very early part of the period, a part dealt with by Benson in her evidence. As the sentencing judge put it, the applicant then "graduated to a much larger involvement in both procuring the production of methylamphetamine and in selling it on a wholesale basis in the period from about 1998 onwards."
[106]
[74] It was then noted that methylamphetamine became a Schedule 1 drug in September 2001 which was during the period of trafficking alleged. However, the judge was satisfied that most of the profits made by the appellant were generated whilst it was a Schedule 2 drug and because of that the sentencing judge considered that 20 years imprisonment was the maximum sentence that could be imposed.
[107]
[75] The sentencing judge then went on to find that the appellant was winding down his illegal activities in 2002, although he was then still willing to investigate offers of precursor drugs. When arrested on 14 January 2003 the appellant was found to be in possession of 2.323 grams of methylamphetamine only. As the judge said that was "consistent with the view that I have formed that the latter period of the charge related to a winding down of your illegal activities."
[108]
[76] Later in her reasons the sentencing judge also said:
[109]
"...you were cynically involved in trafficking in methylamphetamine to make money. ... The fact remains, however, that you got the pool of funds to set up your legitimate business from preying on the weaknesses of those in the community who resort to illegal drugs such as methylamphetamine. There were elements of sophistication in your operation. ... It was apparent from the surveillance that you led a life that involved you in considerable illegal activity but managed to join that with normal activities."
[110]
[77] The foregoing indicates the significant extent of the trafficking and it is with respect to trafficking of that magnitude that the appellant had to be sentenced. The findings made by the sentencing judge are supported by evidence led at the trial.
[111]
[78] The appellant was born in October 1958 making him 47 years old when sentenced. He had a limited criminal history. The early part was summarised by the sentencing judge as follows:
[112]
"You have a number of entries on your criminal history dating from 1976 but are unrelated to drug activities, being in the nature of stealing and driving offences. The only relevant drug conviction was in September 1984 for possession of a prohibited plant for which you were given community service."
[113]
[79] Of more significance is the fact that the appellant was found in possession of a weapon in June 2002 and in August 2002 he was fined for that offence.
[114]
[80] It is necessary to deal with other matters relating to the appellant's criminal history in some detail because they impact upon the sentence to be imposed for the trafficking.
[115]
[81] Importantly for present purposes the appellant has been in custody since 14 January 2003 when he was arrested on the trafficking charge, and also on a charge of attempting to procure the commission of a criminal act. Sometime after his arrest he was also charged with a series of offences, which we will broadly call a home invasion, alleged to have been committed on 9 April 1999.
[116]
[82] The first charge to proceed to trial was that for the home invasion. That trial took place in the Southport District Court and the appellant was convicted of all the relevant offences on 26 February 2004. He was then given an effective head sentence of six years imprisonment with a declaration that he had been convicted of a serious violent offence.
[117]
[83] Then the appellant faced trial in the Maroochydore District Court on the charge of attempting to procure the commission of a criminal act. The background facts were as follows. A friend of the appellant's named Chapman alleged that he had been the victim of an armed robbery with actual violence in consequence of which the perpetrator of that offence was in possession of a significant amount of property belonging to Chapman. Instead of complaining to the police it was agreed between Chapman and the appellant that the latter would use a "heavy" to attack the alleged perpetrator so that Chapman's property would be recovered. The offence was alleged to have been committed between 1 July 2002 and 30 August 2002. Because the arrangements were detected by the police who then had the appellant under surveillance the commission of the offence was headed off. At the conclusion of the trial on 4 August 2004 the appellant was convicted and was sentenced to two years imprisonment, to be suspended after 12 months for an operational period of two years, and an order was made that the sentence commence after the sentence for the home invasion had been served.
[118]
[84] The appellant's appeal against conviction for the home invasion offences was heard by the Court of Appeal on 16 August 2004 and on 19 November 2004 the Court quashed the convictions and ordered a new trial; that meant the sentence imposed on 26 February 2004 was set aside.[7]
[119]
[85] In consequence there had to be some variation of the sentence imposed on 4 August 2004. The appeal with respect to that sentence was heard in this Court on 8 February 2005 and judgment was delivered on 28 February 2005.[8] The sentence was varied to a period of two years imprisonment suspended forthwith and the order making the sentence cumulative was set aside.
[120]
[86] In this Court's judgment of 28 February 2005 it was recorded that the appellant was arrested on 14 January 2003, remained in custody on remand until 14 November 2003, a period of 304 days, and was then on bail until his conviction for the home invasion offences on 26 February 2004. After those convictions were set aside on 19 November 2004 the appellant served another 100 further days in custody until the judgment of the Court of Appeal of 28 February 2005. As that Court noted he had by then "presently served a total of about 404 days by way of sentence and remand although the remand period does not relate solely to" the offence of attempting to procure the commission of a criminal act. That is why this Court varied the sentence the way it did by its order of 28 February 2005.
[121]
[87] The sentencing judge in this case was informed that that Court of Appeal was erroneously informed that the appellant had been released on bail for a period of about three and a half months. On sentencing for the trafficking offence it was accepted that the appellant had been continuously in custody since arrest on 14 January 2003.
[122]
[88] It was against that background that the learned sentencing judge in this case said:
[123]
"You have effectively been in prison for two years 10 months since you were arrested on 14 January 2003. Twelve months of that period of time is attributable to your sentence for attempting to procure commission of criminal acts. That leaves one year 10 months that in the normal course should have been treated as part of the sentence I am about to impose for the trafficking, but I cannot do that because of the complication of the time you have served in respect of the home invasion.
Mr Campbell suggests that I deduct two years from the head sentence that I consider appropriate for the trafficking in order to reflect the period of one year 10 months for which you should be given the entire credit and also to allow something for totality. Your counsel Mr Fraser suggests that I deduct the whole of the two years 10 months from the head sentence to reflect totality."
[124]
[89] The learned sentencing judge then turned to a consideration of sentences in comparable cases. The case she regarded as the most relevant was R v Lowe[9]. The offender there had set up a factory capable of producing large quantities of methylamphetamine. He was charged with trafficking from May 1999 to November 2000. The proven cash receipts of the offender in that case was at least $300,000 for the production of up to 16 kilograms of methylamphetamine. The Court of Appeal regarded a head sentence of the order of 16 years imprisonment as appropriate, but it was reduced to 14 years to allow for the offender's ill-health. The offender there was slightly older than the present appellant and had a long term criminal history.
[125]
[90] The sentencing judge also referred to the sentences imposed in R v Christensen[10], R v Geary[11], R v Burrows[12] and R v Kashton[13]. It is not necessary to refer to the sentences imposed in those cases; suffice it to say that they tend to support the sentence imposed on the appellant here.
[126]
"Lowe is a recent Court of Appeal decision and I consider that it is the most comparable. I consider, however, that the sophistication and the potential for the continued operation of the production and trafficking in Lowe is a distinguishing feature. I see Lowe overall as a more serious case and, having regard to the other decisions that I have recited, I consider that in the absence of the lack of remorse shown in your case, that an appropriate starting point is a sentence of 15 years for trafficking."
[127]
"On the trafficking count, in accordance with the totality principle and giving you full credit for your pre-sentence custody of one year 10 months I will deduct two years four months from the notional head sentence of 15 years. I, therefore, will impose a sentence of 12 years eight months' imprisonment for the offence of trafficking."
[128]
[93] It is not entirely clear how the sentencing judge arrived at the period of two years four months given her earlier comments. But as the somewhat larger deduction than might have been justified on a strict arithmetical calculation was in the favour of the appellant, he cannot make anything of that on the appeal against sentence.
[129]
[94] The evidence at trial clearly discloses that this was a major trafficking operation from which the appellant reaped large profits. He has shown no remorse. His sentence was also determined on the basis that the trafficking was in a Schedule 2 drug whereas for part of the period methylamphetamine was a Schedule 1 drug. Given a sophisticated operation over a number of years involving a large quantity of methylamphetamine the sentence had to be such as to reflect the community's denunciation of such serious criminal conduct.
[130]
[95] The sentence in fact imposed is in conformity with comparative sentences, bearing in mind the appellant's criminal history.
[131]
[96] The fact that the appellant was not physically found to be in possession of a large quantity of methylamphetamine is not, in all the circumstances, a material consideration. The evidence clearly established that he had trafficked in very large quantities of that drug and had profited to a great extent from that commercial activity.
[132]
[97] The appellant also complains that the sentence carries with it a declaration that he has been convicted of a serious violent offence. Where a person is convicted of drug trafficking and sentenced to more than 10 years imprisonment such a declaration applies as a matter of law. In the present case the trafficking was so serious that a sentence for a period less than 10 years could not have been reasonably contemplated. In the circumstances there is no basis for the appellant's complaint.
[133]
[98] The sentence in fact imposed was not manifestly excessive and it follows that the application for leave to appeal against sentence should be refused.
[134]
[99] The appeal against convictions should be dismissed.
[135]
[100] The application for leave to appeal against sentence should be refused.
Another reason for being very careful with the evidence of both Hooning and Benson, but also with both Johnson and Pfaff, is that each of them has previous convictions. That's something that you can take into account when considering the credibility of each of these witnesses and the weight to be given to their evidence.
Mr Fraser has reminded you of their various criminal histories, so I am not going to repeat that. The fact that someone has previous convictions does not necessarily mean that the person's evidence has to be rejected out of hand. If that were the case, then a person who had previous convictions would not come along and give evidence, but it is a matter for you what weight you give the fact that any of them has been previously convicted. You'd need to look at the rest of the evidence, including any evidence that supports that witness independently and weigh that witness's evidence and the fact that he or she has convictions in that context."