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[2008] QCA 332
Court of Appeal (Qld)
2008-10-24
Holmes and Fraser JJA and McMeekin J, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Chen [2008] QCA 332
PARTIES: R v CHEN, Ivan (applicant/appellant)
FILE NO/S: CA 17 of 2008 / SC No 481 of 2006
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: Supreme Court at Brisbane
DELIVERED ON: 24 October 2008
DELIVERED AT: Brisbane
HEARING DATE: 16 October 2008
JUDGES: Holmes and Fraser JJA and McMeekin J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: **Application for leave to appeal allowed.**Appeal allowed only to the extent of varying the order below by adjusting the declaration of time served under the sentence to 1,172 days.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – where applicant pleaded guilty to one count of trafficking in dangerous drugs, nine counts of possession of dangerous drugs, one count of possession of property obtained from trafficking, and one count of attempting to pervert the course of justice – where applicant sentenced to 14 years on the trafficking count, with lesser sentences for other drug-related counts to be served concurrently, and to two years for perverting the course of justice, to be served cumulatively – where applicant had some criminal history, which did not include drug offences – where applicant’s attempts to pervert the course of justice involved soliciting another to take responsibility for heroin owned by the applicant, which had been found in the course of a police search – whether sentences, taken separately and in total, were manifestly excessive / R v Chadwick; ex parte Attorney-General (Qld) [2001] QCA 94, considered / R v French [2004] QCA 263, considered / R v Harnden [2003] QCA 340, considered / R v Nabhan; R v Kostopoulos [2007] QCA 266, applied / R v Omer-Noori [2006] QCA 311, considered / R v Truong and Nguyen [2001] QCA 98, applied / R v W [1998] QCA 90, considered / R v West [2007] QCA 347, considered
COUNSEL: The applicant/appellant appeared on his own behalf / S G Bain for the respondent
SOLICITORS: The applicant/appellant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent
HOLMES JA: The applicant seeks leave to appeal against sentences imposed on him for one count of trafficking in dangerous drugs, nine counts of possession of dangerous drugs (heroin, cocaine, 3-4 methylenedioxymethamphetamine (ecstasy), methylamphetamine and cannabis sativa), one count of attempting to pervert the course of justice and one count of possession of property obtained from trafficking. The longest of the sentences, 14 years, was imposed on the trafficking count; concurrent sentences ranging between six months and four years were imposed on the possession of dangerous drugs and possession of property counts; and two years imprisonment, to be served cumulatively, was imposed on the count of attempting to pervert the course of justice. A period which the applicant had served on remand was declared as time served under the sentence.
The proposed ground of appeal is that the sentence imposed was manifestly excessive. The applicant’s particular concern is with the sentence for attempting to pervert the course of justice. He says that it is excessive by reference to sentencing in comparable cases involving more serious circumstances, and that mitigating factors - his drug addiction, his attempts at rehabilitation, strong personal references, and co-operation by way of an early plea of guilty - were not properly reflected in the sentence imposed on that count.
The offences
The period of trafficking was particularised as occurring between 1 January 2003 and 29 September 2004. Over that time, on the Crown case, the applicant dealt in large quantities of heroin, cocaine and ecstasy and to a lesser extent in methylamphetamine. The evidence against him came from a combination of sources: records of large amounts deposited by him to the accounts of suppliers in Melbourne, analysis of his cash holdings and expenditures, and intercepts of conversations on one of his mobile telephone services.
From November 2003, using the telephone intercept, police recorded the applicant dealing in drugs on an almost daily basis. According to the Crown’s submissions, he obtained heroin from sources in Melbourne, and cut it for sale, using a heroin press, into 350 gram blocks, although in some instances he sold to particular customers in smaller amounts. He purchased cocaine in quantities around the kilogram mark and ecstasy in amounts which, it was clear from the intercepts, were large wholesale amounts. He obtained methylamphetamine in small quantities but endeavoured, unsuccessfully, to buy in larger kilogram amounts. The applicant employed others to distribute drugs for him; two employees were identified, one of whom, Kan, had himself a number of runners working for him.
Samples of the applicant’s telephone conversations were tendered, in which he discussed selling heroin in 350 gram blocks, uncut at $120,000 or cut at $70,000; buying methylamphetamine in kilogram amounts, in one instance at $140,000 for a kilogram; buying a kilogram of high grade cocaine at $210,000; and making purchases of unknown drugs, including, on one occasion, a kilogram at $300,000.
In June 2004, police executed a search warrant at the applicant’s townhouse in his absence. They found 630 grams of heroin, 43 per cent pure; 98 grams of cocaine, 25 per cent pure; 24 grams of methylamphetamine, only 1.5 per cent pure; and 3.7 grams of ecstasy which was 33 per cent pure. (Those discoveries gave rise to five out of the nine possession charges.) In addition, they located a heroin press. Although the applicant was aware of the search, he did not desist from trafficking but instead committed the attempt to pervert the course of justice.
Through his employee, Kan, and a friend of Kan’s, the applicant approached an individual, L, who, it was thought, might be willing to accept responsibility for the heroin in exchange for a payment of $100,000. The applicant met L and proposed that he move into his townhouse, clean it of fingerprints and ensure that his own were to be found around the premises, then call the police and admit to ownership of the heroin found. For that purpose the applicant gave L a key for the townhouse and the security code as well as furnishing him with an explanation of his presence for the unit manager. However, in the course of that meeting, the applicant revealed the amount of heroin found, which caused L some alarm; he had thought it was considerably less. In consequence, he contacted the police to tell them what had happened. Meanwhile, however, he did as the applicant had suggested and moved into the unit. He was subsequently charged by the police with his own trafficking activities, and was granted bail, but professed to the applicant that he had been charged in relation to the applicant’s drugs. The applicant continued to believe, until he was himself charged, that L was awaiting sentence for possession of the drugs, and gave Kan approximately $44,000 to pass onto him. It appears that in fact Kan kept most of the money for himself.
The applicant’s antecedents
The applicant was born in 1976. He was 26 when the trafficking period started, and 31 when he was sentenced. Taiwanese-born, he has lived in Australia since he was 14. He has some minor criminal history which does not include any drug offences: he was fined on different occasions for unlicensed possession of a weapon and disorderly behaviour, and in 2000 was sentenced to six months imprisonment, wholly suspended, for assault occasioning bodily harm in company.
On his account to two reporting psychiatrists, the applicant was addicted to heroin during the trafficking period, smoking rather than injecting it, and had also been a regular user of amphetamines, ecstasy and cocaine. (The psychiatric reports, while noting his drug addiction, indicated that the applicant did not suffer from any psychiatric illness or personality disorder.) As a child he had sustained a serious head injury which left him with severe headaches for which, he said, heroin provided some relief. His sister and brothers, who also lived in Australia, provided affidavits confirming his account of head injury and headaches; they said, too, that there were at times signs of his drug use. The applicant had been married, but in 2000 his wife had left him with the care of their small daughter; it appears that with the help of his parents, he had looked after the child. According to his counsel’s submission, the departure of the applicant’s wife caused him to suffer from depression, for which (as well as for his headaches) he sought relief in heroin use.
Certificates which the applicant’s counsel tendered at sentence indicated that the applicant had completed a great number of courses while in gaol, and had played a role in mentoring other prisoners. As well, references from four chaplains and a teacher spoke highly of him, and particularly of his assistance in translating for Chinese inmates.
The sentencing remarks
The learned sentencing judge reviewed, in his sentencing remarks, the circumstances of the offending. He regarded the plea of guilty as an early one, warranting a discount in the sentence. His Honour accepted that the applicant was a drug addict but observed, accurately in my respectful view, that it was not a case in which an individual traded in dangerous drugs simply for the purpose of obtaining drugs for himself; the addiction had not prevented the applicant from conducting a substantial and sophisticated operation with the purpose of making money.
The applicant points to two errors in the learned judge's recounting of the facts. In his description of the financial analysis, his Honour referred to the applicant making deposits into his accounts, from unexplained sources, of $2,180,469, and later described “[t]he amount of nearly $2.2 million which was deposited into his account” as indicating the size of the enterprise conducted. In fact that amount relates to all forms of expenditure by him, including the $1,854,700 paid to interstate suppliers’ accounts; that money was paid by way of cash deposits, and there is no suggestion it was ever in the applicant’s own accounts. The applicant, while understandably concerned that the record contains an error which might later work to his disadvantage, does not suggest, however, that the mistake had any real bearing on the sentence imposed. I think that concession is correct: the real point is that $2,180,469 which could only have been obtained from drug sales passed through his hands, whether or not it passed through his bank accounts.
There is a second matter about which the applicant expresses some concern: his Honour misunderstood what counsel had put to him about the ending of the applicant’s marriage, thinking that it was the applicant’s addiction that had led to his wife's leaving, when the submission was, to the contrary, that her departure caused his depression and contributed to his addiction. Again, the applicant is correct in saying that it was an error, but it was an inconsequential one.
The learned judge took as a starting point for the trafficking charge a sentence of 18 to 20 years. Taking into account the applicant's limited criminal history, his addiction, the rehabilitation he had demonstrated during his incarceration and his early plea, he considered a sentence of 14 years imprisonment to be appropriate. His Honour said that he had applied similar considerations to the sentence for attempting to pervert the course of justice. That was a scheme designed to strike at the heart of the justice system; it warranted a cumulative sentence. His Honour imposed the sentence of two years imprisonment, saying that he took the totality principle into account in doing so.
The applicant had served 1,172 days on remand. As he points out, the learned judge inadvertently, in his reasons, stated that figure as 1,072 days, although the correct figure was recorded on the order sheet. This court should, in its orders, put the matter beyond any doubt.
The respondent’s submissions
The Crown relied here, as it did below, on three comparable authorities to support the sentence: R v Truong and Nguyen1; R v Nabhan; R v Kostopoulos2; and R v Omer-Noori3. In R v Truong and Nguyen, the applicant Truong was sentenced to 18 years imprisonment on a plea of guilty to trafficking in heroin. The trafficking period extended over 11 months; on a number of occasions Truong had sold foils of heroin, around the one gram mark, to undercover police officers. When he was apprehended with his co-accused Nguyen, the police found, in and around places they had occupied, 388 grams of heroin of high purity with a street value estimated at $800,000, together with $120,000 in cash. Truong was 31 years old, a drug user, with one prior Magistrates Court conviction for possession of heroin. The Court of Appeal described the starting point of 20 years for sentence adopted by the primary judge as correct. Truong had, however, spent 248 days in custody which could not be declared, and had pleaded guilty. The Court held that those factors had not been properly recognised in the sentence, which was set aside and a sentence of 16 years imprisonment substituted.
In Nabhan and Kostopoulos, the applicants were charged with trafficking over a six month period in cocaine, methylamphetamine, ecstasy and gammahydroxybutyrate. Kostopoulos was sentenced to 15 years imprisonment, to be served cumulatively on the 21 month balance of a suspended term of imprisonment imposed earlier for offences of drug possession. That suspended sentence was current at the time he set up a trafficking enterprise described as at "the highest level", selling ecstasy and methylamphetamine in large amounts. He sold over 19,000 ecstasy tablets and two kilograms of methylamphetamine in a three month period, while another, very pure, kilogram of methylamphetamine was seized from him. His completed sales were estimated to have brought $811,000. Kostopoulos was 41 years old and had two previous convictions for drug possession. He was not a drug user, dealing purely for profit. His plea of guilty came on the eve of trial.
Nabhan was sentenced to 13 years imprisonment. He was 34 years old, with a minor criminal history involving drug possession. He obtained drugs using funds provided by Kostopoulos and also did some independent dealing. He received drugs for his own use from Kostopoulos, but was also motivated by profit. He had committed offences of possession of drugs while on bail. The value of his plea of guilty was somewhat diminished by a number of attempts to have it vacated.
The applicant’s submissions
The applicant argued that his case was not as serious as that of Kostopoulos, who had relevant previous convictions dealt in larger amounts and was not a drug addict. Most of his arguments were addressed, however, to the two year cumulative sentence for the offence of attempting to pervert the court of justice. The applicant relied primarily on three cases in which sentences had been lower than two years or were imposed concurrently with other sentences: R v W4, R v Harnden5 and R v Chadwick; ex parte Attorney-General (Qld)6. He argued, too, that his case should be regarded as less serious than those because he did not make any threat of violence to anyone.
In R v W, a 42 year old applicant without previous convictions was sentenced to one year’s imprisonment on a charge of attempting to pervert justice cumulative on a five year sentence in respect of five sexual offences. Thomas J, with the agreement of the other members of the Court, described the making of the sentence for attempting to pervert the course of justice cumulative upon the other sentences as appropriate. The sentence as a whole was held not to be manifestly excessive.
In R v Chadwick, the respondent had pleaded guilty to counts including the infliction of grievous bodily harm and attempting to pervert the course of justice and was sentenced to 18 months imprisonment on the grievous bodily harm offence, with a recommendation for eligibility for parole after six months; and three months concurrent on the attempt to pervert the course of justice. He had offered the man whom he had injured $10,000 to drop the charges, although his approach does not seem to have been treated seriously. The sentences imposed were ordered to be served concurrently with an activated suspended sentence of six months. The Court set aside the sentences to the extent of ordering that the period of the suspended sentence be cumulative on the other sentences and that no recommendation for eligibility for parole be made.
In R v Harnden the appellant had threatened to shoot a woman if he went to jail as a result of a statement she had made against him. He had a significant criminal history for offences of dishonesty and violence, and the offence was committed while on bail. A sentence of two years imprisonment was not disturbed on appeal, the President observing that "the offence of attempting to pervert the course of justice, like perjury, is a crime that strikes at the heart of the administration of justice . . . a circumstance which must be given significant weight when a court is considering the appropriate penalty".
Discussion
In relation to the trafficking sentence, the authorities cited, particularly in relation to the applicants Kostopoulos and Truong, support a starting point for sentence in this case of at least 18 years. While the applicant cited factors which he said which made Kostopoulos' case more serious, I do not think those comparisons advance matters. The contention that Kostopoulos engaged in larger transactions is questionable, and in any event the applicant’s dealings occurred over a considerably longer period.
In respect of the sentence for attempt to pervert justice, apart from the difficulty that most of the cases relied on by the applicant involved sentencing under a much lower maximum penalty, I think that they are distinguishable on their facts; and not to the applicant’s advantage. The attempts to interfere with the course of justice in those cases were relatively crude and of short duration. The present case involved a sophisticated proposal, with some real prospect of success, which the applicant put it into effect over a period of time, making payments, as he believed, to secure L’s compliance. Given the proportions of this offending, I do not think that a two year sentence could be said to have been outside the range of the proper exercise of sentencing discretion. It was unquestionably appropriate, given the distinct and grave nature of the offence, that the sentence be ordered to be served cumulatively.
The question is really one of totality: whether the 14 year sentence for the trafficking taken with the two year sentence cumulative on it produced an excessive result. The sentence might have been structured differently. The trafficking offence would easily, on the authorities to which I have referred, have justified a sentence of 15 years imprisonment, while on the other hand the attempt to pervert the course of justice, with totality considerations in mind, could have been adjusted down to one year. But it was to the applicant's benefit that the learned judge chose to give a relatively light sentence on the trafficking and a relatively high sentence on the attempt to pervert the course of justice. The first, as a serious violent offence, will require 80 per cent to be served before parole is available, but on the second the applicant will become eligible after serving 50 per cent of the sentence.
There might be something in the applicant’s complaint that in respect of the attempt to pervert justice count, he was not afforded recognition of the mitigating factors in his favour by way of a parole recommendation effective before the 50 per cent mark. But since a recommendation for parole after a third rather than half of that sentence would only involve reducing the minimum time to be served by four months, in the context of a 16 year sentence, interference is not, in my view, justified.
Orders
I would allow the application for leave to appeal, and allow the appeal only to the extent of varying the order made below by adjusting the declaration of time served under the sentence to 1,172 days.
FRASER JA: I agree with the orders proposed by Holmes JA and with her Honour’s reasons for those orders.
McMEEKIN J: I agree with the orders proposed by Holmes JA and with her Honour’s reasons for those orders.
R
Chen
On 28 September 2004, another search of the applicant’s residence located the drugs which were the basis of the remaining four possession counts on the indictment: 207.6 grams of heroin, 31 per cent pure; 77.25 grams of cocaine, 27 per cent pure; 17 grams of methylamphetamine, 1.5 per cent pure; and 17.3 grams of ecstasy, 73 per cent pure. $123,000 in cash was seized on the same day, giving rise to the possession of property obtained from trafficking count. At the time, the appellant's savings accounts held funds totalling approximately $150,000.
An analysis of the applicant's sources of income and payments concluded that between January 2003 and September 2004, the applicant had spent $2,180,469.36 which could not be accounted for by any legitimate source of income; indeed he seems to have been receiving Centrelink pension payments at the relevant time. That expenditure included $1,854,700 which, over the 19 month trafficking period, he deposited into the accounts of his Melbourne suppliers. A schedule of those transactions shows deposits totalling approximately $330,000 between mid-February and mid-April 2003, with a gap until 24 December 2003. Thereafter the balance of the money was sent in a steady stream of deposits, usually two or three a month, in amounts as high as $140,000, up until 13 September 2004, shortly before the applicant's arrest.
Both applications for leave to appeal were dismissed. In respect of Nabhan's sentence, it was observed that recent authorities showed that for dealing on such a scale, a sentence of 16 years imprisonment, even taking into account a plea of guilty, was within the appropriate range. Accordingly, the 13 year sentence was well within the proper range. For Kostopoulos, a notional starting point might have been 18 years. Allowing for the plea of guilty, a sentence of 16 years would have been within the proper range; there had been some moderation to take into account totality with regard to the balance of the suspended sentence to be served. Deterrence was of particular importance for large scale commercial drug traffickers such as Kostopoulos, who made a calculated decision to accept the risk of apprehension and imprisonment in order to reap large financial rewards.
In the third of the matters referred to, Omer-Noori, the applicant for leave to appeal against sentence had trafficked in heroin, methylamphetamine and cocaine over six and a half months; during some of that time he was on bail on a possession charge. He bought ecstasy tablets in large amounts, on one occasion, negotiating to buy 5,000 tablets for $95,000; sold cocaine an ounce at a time; participated in a plan to import cocaine; negotiated to buy methylamphetamine; and purchased 12 ½ ounces of heroin. He pleaded guilty but contested, unsuccessfully, the allegation that he had trafficked in heroin and cocaine. This Court described his activities as a "substantial wide-ranging trafficking business carried on as a purely commercial enterprise over a period for most of which the applicant was on bail for possession"; a sentence of 13 years was held to be well within the range of a sound exercise of sentencing discretion.
But one of the difficulties for the applicant in reliance on those authorities is that each of them was decided at a time when the maximum penalty for attempting to pervert the course of justice was two years imprisonment; in December 2003 the maximum penalty was raised to seven years imprisonment. That problem applies also in respect of a fourth case mentioned in the applicant's list of authorities: R v French7, which involved a sentence of 12 months imprisonment for the offence to be served concurrently with other sentences, but cumulatively on an activated two year suspended sentence. Another case mentioned by the applicant, R v West8, although relating to an offence committed after the amendment is of limited assistance, because the appeal there turned on whether a sentence of four and a half years imposed on a torture charge was manifestly excessive because it was not suspended, rather than on the adequacy of a concurrent sentence of unspecified length for attempting to pervert the course of justice. The court observed, however that the decision to make the sentence on the latter account concurrent with the other sentences imposed was “distinctly lenient”.
The applicant sought to argue that he had been unfairly dealt with in comparison to his “co-accused”, suggesting that Kan, who had been a party to the attempt to pervert the course of justice had received the benefit of a concurrent sentence for the offence, while L, and Kan’s friend who served as an intermediary, had not been charged at all. Counsel for the respondent was given leave to inquire into those assertions and advise the court. It seems that the applicant is mistaken in his first submission; Kan is yet to be sentenced. The other two have not been charged, which is not surprising in L’s case; more importantly, since neither has been sentenced, there is nothing by reference to which a parity argument can be mounted.