_R v Davies_

Court of Appeal (Qld)|2007-11-23|Before: McMurdo P, Keane JA and Daubney J, Separate reasons, for judgment of each member of the Court, each concurring as to the orders, made

Director of Public Prosecutions (Queensland) for the respondent

[1] McMURDO P: The applicant, Jolyon Robert Davies, pleaded guilty to an ex officio indictment on 6 August 2007 charging him with one count of attempted possession of a commercial quantity of cocaine. He was sentenced to seven and a half years imprisonment with a non-parole period of two years and six months. He applies for leave to appeal against that sentence contending that it was manifestly excessive.

[2] He was 34 at sentence and 33 at the time of the offence. He had no previous convictions but in January 2006 he was fined for committing a public nuisance and in April 2006 he was convicted and not further punished beyond time spent in pre-sentence custody for breach of a bail condition.

[3] The circumstances and background of the offence were contained in a tendered statement of facts to the following effect. On 24 November 2005 Australian Federal Police officers investigated a seizure by the Australian Customs Service of a suspicious package from Columbia. It contained a large stainless steel cylinder which was found to be empty, even after de-construction. The consignee details on the package were false. The package was re-constructed and put back into distribution. On 2 December 2005 a man, later found to be Eskil Honore Gundersen, attended the TNT depot at Molendinar and collected the package. Gundersen presented a Columbian driver's licence bearing the name of Juan Carlos Castillo-Jiminez. His motor vehicle had the registration 059 IZE. It was registered to Amanda King, Gundersen's girlfriend, who lived with him at 61 Kalimna Drive, Broadbeach.

[4] On 10 March 2006 the Australian Customs Service officers in Sydney selected a package for examination that had recently arrived at the Qantas freight depot. They x-rayed it, drilled a hole and discovered a white powder which appeared to be cocaine. The sender's address on the package was said to be:

[5] Police officers de-constructed the package. It contained an electric control box labelled "Tratador de Corona Indelec", circuit boards with electrical wiring and two disconnected large metal transformers. Each metal transformer contained a total of 17 plastic bags holding white powder, which was later tested and analysed as cocaine. The total net weight was 2, 975.7 grams with a purity of between 72.9% to 79.3%. The net weight of pure cocaine was 2,240 grams.

[6] Police found that the consignee details were again false. They re-constructed the package, placed it in the TNT warehouse at Molendinar and waited for it to be collected. On 16 March 2006 the package was collected by Michael De-la-Warr, the applicant's half-brother. Police officers followed De-la-Warr to the basement car park of an apartment block at Southport. He there got out of the vehicle and met up with the applicant and Glen Christopher Cook. Police officers detained all three men and retrieved the package from a padlocked storage cage numbered 1301 in the basement. Cook controlled a nearby storage cage numbered 1410.

[7] De-la-Warr told police that the applicant and Cook asked him to pick up the package and return it to the basement of the apartment building where Cook lived. It seems De-la-Warr was an innocent party and he was not charged.

[8] Cook later told police the following. He had been asked by a man he knew as "Pablo" to pick up the package which he had been advised contained three kilograms of cocaine and to bring the package to Cook's apartment building. "Pablo" was a Norwegian student in his twenties (in fact, the person Gundersen) who had links to South America for cocaine distribution. Pablo told him to put the package in storage cage 1301. Because he did not want to pick up the package himself he asked the applicant to arrange it. The applicant collected the package from de-la-Warr and placed it in storage cage 1301. Cook concealed the package within the cage and then padlocked the cage. Pablo told him to let the package sit there for a few days and to move it later.

[9] Federal police later found keys on a key ring near a column in the vicinity of the storage cages, one of which unlocked storage cage 1301. This storage cage also contained a small suitcase with four 800ml bottles of liquid, later analysed as containing between 94.4% to 96.2% of gamma-butryolactone ("GBL") with a total weight of 3,770 grams of GBL.

[10] At about 10pm Cook telephoned a man whom he called Pablo and made arrangements for Pablo to collect the package. He told Pablo (Gundersen) that he did not want to hold on to the package for too long and asked for guidance. Gundersen arranged for the package to be picked up the following afternoon.

[11] The following day Cook was arrested and charged with importing a commercial quantity of cocaine and granted bail. He told police that "Pablo" was also known as Eskil. Police determined that one Eskil Gundersen was studying at a local university and resided at 61 Kalimna Drive, Broadbeach. They showed Cook a university photograph of Gundersen. Cook confirmed that this was "Pablo". Cook telephoned Gundersen and arranged for him to pick up the package at 5.30pm on 17 March 2006. He explained that because of new security in the building he had the package with him in the apartment. Police officers secreted themselves in the vicinity of the apartment and waited. They saw Gundersen carry the package away from the apartment at about 5.30pm and place it in a vehicle with the registration 059 IZE. Police followed Gundersen, who was holding the package, to a Southport unit. Early the next morning they executed a search warrant at the unit and arrested Gundersen.

[12] Gundersen told police that he was involved in the earlier collection of the stainless steel cylinder which he believed contained something illicit. He delivered the cylinder to three men at Broadbeach and received a benefit. He picked up the package from Cook because Cook's girlfriend was becoming nervous as checks were being conducted on the storage cages by security. He knew nothing about the GBL found in the storage area. Gundersen's mobile phone contained Cook's mobile telephone number which referred to "Pablo" as "Cook".

[13] Cook took part in a recorded police interview on 22 March 2006. He told police the following. He had known Gundersen/Pablo for three and a half years. Gundersen asked him to pick up the package from TNT and told him it contained three kilograms of cocaine and to hold on to it for a few days. He told Gundersen he was not interested but he might know someone who was. He telephoned the applicant who in turn arranged for his brother, Michael de-la-Warr, to pick up the package. Cook insisted he had nothing to do with the conspiring to import, the organising or ordering of the package. He said he had made a huge mistake in agreeing to become involved.

[14] The applicant also took part in a recorded police interview. He cooperated with police and made full admissions. He said that Cook had asked him if he knew someone who could pick up the package. He arranged for his brother to do this. The applicant knew the package contained cocaine as Cook had told him. Cook said that he would look after the applicant after they sorted out the package. The applicant expected to get $2,000 or a quarter of an ounce of cocaine for his role in its delivery. His brother was never told what the package contained.

[15] Cook and Gundersen were sentenced before Mullins J on 31 May 2007. Each blamed the other for instigating the offence. The prosecution submitted that each played a significant role in the offence. The matter was listed as a contested sentence but in the end no evidence was called. Cook was on bail for importing 4.8364kg of GBL from China at the time of his involvement in the present offence. Gundersen claimed that he had been importuned by Cook into involvement in this offence. He said he had been responsible for the collection of the empty cylinder in the earlier "dummy run" to pay off a cannabis sativa debt of $1,500 at the request of one "Romero". Gundersen claimed that the pickup on 15 March 2006 had been arranged by Cook claiming to act on behalf of "Romero". Gundersen became involved because he wanted GBL from Cook whilst he was trying to wean himself off cannabis.

[16] Mullins J was not satisfied that either Cook or Gundersen had a proprietary interest in the cocaine. She could not resolve the comparable responsibility alleged by one against the other. She concluded that Cook, knowing what was in the package, at the request of another person organised its collection to hold on to it and to pass it on. Her Honour found that Gundersen, at the request of another person and knowing the package contained an illicit substance, collected the cocaine from Cook and held it at the Southport unit with a view to passing it on when instructed. She considered their involvement was at the wholesale level within Australia. Deterrence, both general and personal, was of great importance. Cook was 31 years old with a minor criminal history relevantly consisting only of a breach of a bail condition in 2005. He had invested in a courier delivery business which was in financial strife, a factor leading to his involvement in the earlier offence. Her Honour took into account Cook's 14 month period of custody which could not be formally declared as time served. Gundersen was 25 at sentence. He was studying honours in psychology. He had become addicted to cannabis. The fact of his addiction was supported by a psychiatric report from Dr Curtis. It seemed he had good prospects of rehabilitation and had been drug-free since being remanded in custody. As noted, Cook was sentenced to eight years and six months imprisonment with a non-parole period of two years and ten months and Gundersen to seven years imprisonment with a non-parole period of two years and four months.

[17] The prosecutor at the applicant's sentence contended that the applicant's role was more serious than that of Gundersen but less serious than that of Cook. This was because Gundersen believed only that the package contained something illicit whilst the applicant believed it contained cocaine. Gundersen was also younger and had a cannabis addiction which impaired his judgment.

[18] The applicant's lawyer at sentence made the following submissions. The appropriate head sentence, as it was for Gundersen, was seven years. The applicant's involvement in the offence was opportunistic, over a short time span, amateurish and ultimately ineffective. He did not know the quantity of cocaine he believed he was assisting in importing. The applicant took part in lengthy records of interview with police and made truthful admissions. Unlike Gundersen, he was not involved in the earlier "dummy run", where a false driver's licence was used. The applicant's involvement commenced only at about lunchtime on the day the package was collected. The applicant involved his innocent brother because he believed the package was very large and his brother had a utility which could transport it. The applicant was never told and did not know the quantity of the imported drug he was to collect and was shocked when he later found out that it was almost three kilograms.

[19] The applicant's lawyer tendered a report from the Gold Coast Drug Council Inc which indicated the applicant had attended 12 counselling sessions since 6 March 2007. He had been punctual and had contributed to the group sessions in an open and constructive manner. Since 16 May 2007 he had provided six urine samples, five of which tested negative for opiates. One test initially showed no opiates but the more sensitive immuno-assay test detected opiates. The applicant explained that he had a cold and had taken analgesic tablets containing codeine.

[20] The applicant's adoptive parents provided a letter to the sentencing judge. They described a pleasant, hard working and successful young man who found himself in unfortunate circumstances and made a very unwise decision. The applicant's natural father has been in contact with him since he turned 18. They have formed a close bond. He described the present offence as occurring at a time in the applicant's life when he was introduced to illegal drugs and he made a foolish and uncharacteristic life change. He is now committed to turning his life around and has a positive future. References from the applicant's girlfriend and other friends and associates supported the submission that the offence was out of character and that since committing it he has distanced himself from negative influences.

[21] The applicant also wrote a letter to the sentencing judge. He expressed his remorse. The background to the offence was his purchase of a franchise which failed. His relationship with his partner was placed under pressure and was also failing. He turned to illegal drugs to cope. His involvement in the offence was out of character. He expressed his shame at disgracing his family and at involvement in the illegal drug trade which could have damaged others' lives. He had since obtained permanent employment which he found fulfilling and had started a long term relationship with a supportive and upstanding young woman.

[22] The applicant's lawyer emphasised the financial strain placed on the applicant at the time of his involvement in the offences because of the collapse of his franchise in which he had invested $60,000. He had since turned his life around. He became involved in the offence to feed his cocaine addiction. He had no prior convictions. In all the circumstances, he submitted the applicant should be sentenced to a lesser penalty than Gundersen who was more involved in the importation.

[23] The learned sentencing judge referred to the relevant mitigating and exacerbating circumstances, to the sentences imposed on Cook and Gundersen and to the parity principle. His Honour considered that in all the circumstances the applicant's involvement was generally similar to Gundersen's. Whilst it seemed Gundersen had a broader overall involvement in the offending because of the "dummy run" involving the cylinder, the applicant was older and believed the package contained cocaine. These factors warranted a heavier penalty than that imposed on Gundersen. The personal circumstances of the applicant must take second place to the primacy of the imposition of deterrent sentences for offences involving the commercial possession or attempted possession of drugs like cocaine. His Honour sentenced the applicant to seven and a half years imprisonment with a non-parole period of two years and six months.

[24] Mr A J Kimmins, who appears for the applicant in this Court, submits that the primary judge erred in drawing any distinction between Gundersen as a 23 year old and the present applicant as a 33 year old, especially as the applicant's involvement was only on the day of delivery and he had no knowledge of the amount of drugs actually involved. Gundersen had been involved in the earlier, uncharged "dummy run". The sentence imposed on the applicant when compared to that imposed on Gundersen leaves him with a justifiable sense of grievance requiring this Court's interference: Postiglione v The Queen.[1]

[25] It is often difficult to determine the precise role played in a joint offence by co-offenders who each have an interest in minimising their role and maximising the role of co-offenders. The material before the applicant's sentencing judge, including the remarks of Mullins J when sentencing Cook and Gundersen, make plain that the applicant's role in the offence was at a lower level than that of both Cook and Gundersen. Of the three, Cook was deserving of the heaviest punishment. He was a mature man with a minor criminal history who had committed this offence when on bail for a related offence. Both he and Gundersen were involved in the earlier "dummy run" and were at a higher level of the pyramid of drug distribution. As the learned sentencing judge noted, Gundersen was considerably younger than the present applicant. The applicant's greater maturity was, however, more than counterbalanced by Gundersen's greater level of involvement in the present offending, demonstrated by his participation in the "dummy run". In the circumstances, it hardly matters that Gundersen may not have positively known the illicit imported substance he was transporting was cocaine. Both the applicant and Gundersen had difficulties in their lives at the time they committed this offence, no relevant prior history and promising prospects of rehabilitation. The applicant pleaded guilty to an ex officio indictment (unlike his co-offenders) and like them cooperated with the authorities. As the learned sentencing judge and Mullins J rightly recognised, deterrence is a major consideration when sentencing for offences of this type. The applicant, Cook and Gundersen involved themselves in a most serious attempt to possess a large quantity of imported cocaine. This unlawful and evil international industry wreaks untold havoc with the lives of many. It causes widespread major health problems and feeds organised criminal conduct in both developing and developed countries. Although the difference in the sentence imposed on the applicant when compared to that imposed on Gundersen is not great, in all the circumstances it is sufficient to give rise to a real and justifiable sense of grievance on the applicant's part, as discussed by Dawson, Gaudron and Kirby JJ in Postiglione.[2] The sentencing principle requiring parity with the sentences earlier imposed on Gundersen and Cook and the appropriate balance of the mitigating and exacerbating factors in this case, including general deterrence, required the imposition of a penalty a little less and certainly no greater than that imposed on Gundersen. It follows that the sentencing discretion miscarried.

[26] I would grant the application for leave to appeal, allow the appeal, set aside the sentence imposed at first instance and re-exercise the sentencing discretion by instead ordering that the applicant be imprisoned for a period of seven years with a non-parole period of two years.

[27] KEANE JA: I agree with the reasons of the President and with the orders proposed by her Honour.

[28] DAUBNEY J: I agree with the reasons for judgment of the President, and with the orders she proposes.

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