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[2017] QCA 170
General information, not legal advice.
Court of Appeal (Qld)
2017-08-11
Gotterson and Morrison and McMurdo JJA, Separate, reasons for judgment of each member of the Court, Gotterson and Morrison JJA, concurring as to the orders made
Original judgment source is linked above.
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS - GENERAL PRINCIPLES - where the applicants were convicted of the importation into Australia of a commercial quantity of a border controlled drug, cocaine - where the applicant Elfar was sentenced to 30 years' imprisonment with a non-parole period of 20 years - where the applicant Golding was also sentenced to 30 years' imprisonment but with a non-parole period of 18 years - where another participant in the import venture, Sander, was sentenced to 30 years' imprisonment with a non-parole period of 16 years - where Elfar and Golding seek leave to appeal against their sentences on the grounds that they are manifestly excessive and do not reflect the principle of parity between all three co-offenders - where the importation was a complex, well planned, international operation - where Elfar and Golding sailed a yacht (the Mayhem) to meet another vessel (the Edelweiss) to exchange 400 kilograms of cocaine - where Elfar was in control of the Mayhem and Sander was captain of the Edelweiss - where Elfar and Golding moored at a marina in Queensland and were arrested by the Australian Federal Police (AFP) - where the Crown submitted that Elfar's participation was more serious than that of Golding and Sander because Elfar provided the Mayhem and communicated with the Edelweiss in the months leading up to the importation - where the applicants submitted that there were no material differences between the offenders' criminal histories - where the applicants submitted that there was a lack of parity with the sentence in relation to Sander - where the learned sentencing judge found that Elfar, and to a lesser extent, Golding, had both participated in planning and executing the importation - where both applicants knew the scale of the importation but lacked insight into the seriousness of the offending - where Sander was engaged because of his seamanship skills and had no criminal history - where the learned sentencing judge had found that while all offenders were motivated by financial gain, only Sander cooperated with the administration of justice during the trial by minimising delay and by not calling unnecessary evidence - where in addition, Sander had a number of character references - whether the learned sentencing judge exercised the sentencing discretion in accordance with the parity principle
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE - where both parties conceded that the breadth of the sentencing discretion in cases of this kind is wide - where the applicant submitted that R v Thompson [2007] NSWCCA 83 supported a head sentence of 20, rather than 30 years' imprisonment - where the Crown advanced a number of cases which demonstrate the range of sentences in cases of this kind extends well beyond 20 years' imprisonment - whether in all the circumstances, the sentences are manifestly excessive
AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied
R v Campillo Vaquere [2004] NSWCCA 271, cited
R v Elfar; R v Golding; R v Sander [2017] QCA 149, related
R v Ellison [2012] QCA 113, applied
R v Flavel [2001] NSWCCA 227, cited
R v Gonzalez-Betes [2001] NSWCCA 226, cited
R v Jackson (2003) 138 A Crim R 148; [2003] QCA 31, cited
R v Lam [2009] VSCA 37, cited
R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238, considered
R v Tait and Bartley (1979) 46 FLR 386, considered
Teng v R (2009) 22 VR 706; [2009] VSCA 148, cited
R v Tout [2012] QCA 296, considered
R v Vo (2000) 118 A Crim R 320; [2000] NSWCCA 440, cited
Thompson v The Queen [2007] NSWCCA 83, distinguished
Wong v The Queen (2001) 207 CLR 584, [2001] HCA 64, considered
Director of Public Prosecutions (Commonwealth) for the respondent
[1] GOTTERSON JA: I agree with the orders proposed by Morrison JA and with the reasons given by his Honour.
[2] MORRISON JA: Elfar and Golding sailed a boat from Port Macquarie out to the Coral Sea. There, by arrangement, they met another vessel which carried about 400 kilograms of impure cocaine, of which 283 kilograms was pure cocaine.
[3] The cocaine was transferred to their boat and they sailed back to Scarborough in Queensland. There, again by arrangement, they met two other men and transferred over 45 kilograms to a car driven by one of the other men (Triplett). As the car was being driven away police arrested them. The balance of the cocaine was found on the boat.
[4] Elfar and Golding were convicted of an offence of the importation into Australia of a commercial quantity of a border controlled drug, namely cocaine, in contravention of s 11.2A(1) and (2) and s 307.1(1) of the Criminal Code 1995 (Cth).
[5] Each was sentenced to a term of 30 years' imprisonment, but different non-parole periods were fixed: Elfar's period was 20 years and Golding's period was 18 years. Another participant in the venture, Sander, was also convicted and received a 30 year sentence but a non-parole period of 16 years.
[6] On 11 July 2017 the appeals against their convictions were dismissed.[1]
[7] Elfar and Golding seek leave to appeal against their sentences. Sander does not.
[8] The grounds of challenge are:
- (a) that the sentences are manifestly excessive;
- (b) error in failing to properly reflect parity issues.
[9] The relevant facts are set out in detail in Elfar and Golding.[2] It is convenient to adopt them here, omitting some matters relevant only to the conviction appeals. In addition some facts as found for the purpose of sentencing have been included in what follows.[3]
[10] On 3 August 2010, a boat called the Edelweiss sailed from Panama City, south to the coast of Ecuador, and then west across the Pacific Ocean. By 8 October 2010, it was about 320 nautical miles off the Australian east coast. It was manned by two men, Sander and Serna. Sander was the captain.
[11] On 4 October 2010 a vessel named the Mayhem of Eden,[4] under the control of Elfar and with Golding aboard, left Port Macquarie Marina where it had been moored. Elfar had often been on the Mayhem when it was moored at Burraneer Bay in September 2010, and arranged and paid for work done on it. Elfar had paid for mooring and fuel at the Port Macquarie Marina. The Mayhem next made landfall on 12 October, at Scarborough marina.
[12] On 7 October 2010, the Australian Federal Police (AFP) received information that a vessel carrying a large quantity of narcotics was sailing towards Australia in order to meet another vessel, to which it would transfer its cargo at sea. The information was provided by the Drug Enforcement Agency (DEA), a law enforcement agency of the United States government. The DEA informed the AFP that this rendezvous was expected to occur at a position, defined by certain coordinates, on the evening of 8 October 2010.
[13] On the basis of that information, the AFP, together with the Australian Customs and Border Protection Service, conducted surveillance flights in the region of the anticipated rendezvous. On the night of 8 October 2010, one of these aircraft identified two vessels approximately two miles apart and sailing towards each other. At about 2.00 am 9 October 2010, an aircraft relocated the two vessels, which were then about a quarter of a nautical mile apart and not far from where they had been seen earlier. Digital imagery identified one of the vessels as the Mayhem.
[14] A large amount of cocaine was transferred from the to the , no doubt using the tender attached to the . Elfar and Golding were involved in that transfer.
[25] The Crown submitted that the learned sentencing judge expressly took parity into account. The greater sentence for Elfar was justified by his use of the Mayhem to implement the plan and the length of his involvement shown by satellite phone usage. Sander made a number of admissions in his case which, nonetheless, were required to be proven in the other cases. He had also cooperated, had character references and been a model prisoner.
[26] The Crown produced a schedule of authorities dealing with large importations,[6] and submitted that reference to cases, such as R v Flavel,[7] R v Gonzalez-Betes,[8] R v Campillo Vaquere,[9] R v Jackson,[10] R v Vo,[11] Teng v R[12] and Lam v R,[13] justified the sentence imposed and the non-parole periods.
[27] R v Mandagi[14] and R v Thompson[15] were referred to in order to distinguish them, as in each the ultimate sentence was affected by the application of s 16G of the Crimes Act 1914 (Cth) (requiring sentences to be reduced, normally by one third, to take account of the absence of remissions) which had since been repealed. When that was factored in the start point in Thompson was 36 years, and 40 years in Mandagi.
[28] The factors affecting parity were: (i) Elfar's provision of the Mayhem; Sander did not own the Edelweiss; (ii) Elfar's use of a satellite phone to communicate with the Edelweiss from as early as 26 June 2010, before it commenced its journey; (iii) Golding's earliest involvement was use of the phone to communicate with Triplett from 7 September 2010; (iv) Sander's admissions and conduct of the trial assisted the administration of justice, whereas nothing of that kind applied to Elfar and Golding.
[29] The thrust of the contention was that parity considerations evident from Postiglione v The Queen[16] and R v Ellison[17] were not adequately considered. As a result Elfar and Golding had a justifiable sense of grievance when compared to the sentence Sander received:
- (a) Elfar's non-parole period was 20 years, with 891 days declared as pre-sentence custody;
- (b) Golding's non-parole period was 18 years, with 468 days declared; and
- (c) Sander received a non-parole period of 16 years, with 1,800 days declared.
[30] There was no relevant difference in the criminalities and backgrounds of each, and there should have been no relevant differences in the sentences. Each of Elfar and Golding had minor and irrelevant criminal histories. Neither was young, with Elfar at 49 and Golding at 41. Sander was 45, with no criminal history and good references. To the extent that Sander was given the benefit of not "wasting the Court's time" and giving some "minimal cooperation", that was largely due to his Counsel and not him, and in any event was not of great moment in the 16 day trial.
[31] Relying on Thompson v The Queen[18] it was submitted that the sentences should have been 20 years with a non-parole period of 14 years.
[32] During the hearing before this court Counsel for Elfar and Golding accepted the force of the Crown's written submission[19] that there were comparable cases which could justify the sentences imposed. He conceded that whilst Thompson was a more serious case which attracted a lower sentence than that for Elfar and Golding, there were less serious cases which had attracted higher sentences, reflecting the breadth of the sentencing discretion. It was submitted that, whilst he did not resile from the written outline, his real submission was that the Court would consider that there was a lack of parity with the sentence in relation to Sander. That position was made clearer as there was no dispute when the senior counsel for the Crown subsequently submitted that "I think my learned friend effectively conceded that the sentences imposed were within discretionary range".
[33] The learned sentencing judge commenced her remarks by referring at some length to the relevant principles for sentencing for such a serious offence. That included her Honour's citation of passages from Wong v The Queen,[20] R v Tait and Bartley,[21] R v Law,[22] R v Stanbouli,[23] R v Klein,[24] and R v Nguyen; R v Pham.[25]
[34] In addition her Honour recognised that she had to address the factors in s 16A and s 17A of the Crimes Act.
[35] The learned sentencing judge characterised the offending conduct in a way that cannot be criticised, and was not criticised before this Court:[26]
"This was very serious offending, obviously undertaken purely for profit, of a very, very significant amount of a drug that would have caused great damage to the Australian community an activity which would have been, had it not been for information supplied by the Drug Enforcement Agency from the United States, very difficult to detect. Hence, this is very much a case where the fear of punishment should be weighed by those who attempted to engage in such activity and where punishment and deterrence are the primary considerations."
[36] Before dealing with the individual aspects of Elfar and Golding, the learned sentencing judge adverted to other features which showed the scale of the offending conduct. The amount imported was 140 times the level of a commercial quantity of drugs. The potential wholesale value per kilogram was $200,000, and therefore the importation had a total wholesale value of about $80 million, and a retail value estimated at $120 million.[27]
[37] Further, the conduct was carried out in ways to try and avoid detection, and it required an expensive detection operation, utilising surveillance aircraft, a large intercept vessel and many teams of police officers and other agencies.[28]
[38] As an example of the likely rewards available to those involved, the learned sentencing judge referred to the crewman on the Edelweiss, one Serna, who was to receive $500,000 for his role. The motive for Elfar and Golding was money, but it was unknown how much each stood to receive.[29]
[39] The learned sentencing judge then turned to factors that distinguished one offender from another. In that respect her Honour referred to Serna, observing that there were many factors taken into account in his favour and which did not apply to Elfar or Golding: (i) he had greatly assisted the investigating authorities; (ii) he made extensive admissions; (iii) he pleaded guilty; and (iv) he consistently expressed remorse.[30] Her Honour observed that Serna had been sentenced to 25 years' imprisonment, with a non-parole period of 15 years.
[40] The learned sentencing judge adverted to those factors which her Honour intended to take into account as applicable to Elfar:[31]
- (a) he was 49 at the time of the offence and in a de-facto relationship;
- (b) he had worked as a qualified plumber and in the construction industry;
- (c) his criminal history was minor and irrelevant;
- (d) he had control of the Mayhem, and his was not merely a menial or labouring function; the sailing of the Mayhem to meet the Edelweiss showed the application of skill in the face of danger and personal risk;
- (e) there was an intense degree of communication and coordination between the crew of the Edeweiss and him;
- (f) he was a party to the offence from the time the Edelweiss left;
- (g) his participation by selecting the 45 kilograms to take from the Mayhem meant he was aware of the scale of the offence;
- (h) the offending conduct was "very brazen", carried out for financial reward and he showed no remorse; he showed no insight into the seriousness of the crime and was "the perpetrator of major crime with very deleterious consequences to the community"; and
- (i) there was little to mitigate the sentence.
[41] The learned sentencing judge then turned to those factors which her Honour intended to take into account as applicable to Golding:[32]
- (a) he was 41 at the time of the offence;
- (b) he had a minor criminal history;
- (c) he had sailed on the Mayhem, using his sailing skills and undergoing the danger, and assisted in the transfer of the cocaine from the Edelweiss;
- (d) the phone evidence showed that the two phones[33] were used exclusively between Triplett and him to make plans and arrange the meeting;
- (e) the only motivation was the financial reward, and he knew of the scale of the importation;
- (f) he had no insight into the seriousness of the offending; and
- (g) his Counsel had made written submissions on the issue of parity, and they had been taken into account.
[42] The learned sentencing judge then turned to those factors which her Honour intended to take into account as applicable to Sander:[34]
- (a) he was a German citizen, 45 years old at the time of the offence, and with no criminal history;
- (b) he was engaged for his seamanship skills, and had primary responsibility for navigation of the Edelweiss over a long and dangerous journey;
- (c) his motivation was financial reward;
- (d) there was no plea of guilty, remorse or admissions, unlike Serna;
- (e) he had given "some minimal cooperation in the way the trial was conducted", by giving instructions to his Counsel to "not at any point waste the court's time with irrelevant questions";
- (f) despite early setbacks in his life he had succeeded in a number of areas, including as a seaman, in employment, community involvement, and artistically; he had a number of character references; and
- (g) he had been a model prisoner, engaging in courses, and had dental issues that were a disadvantage in custody.
[43] It was not contended that the learned sentencing judge misunderstood the relevant legal principles. Indeed, and not surprisingly given that they were largely agreed by both sides at sentencing,[35] it was submitted by Counsel for Elfar and Golding that her Honour set them out at AB 2338-2340.[36]
[44] As mentioned above, that included her Honour's citation of passages from the relevant authorities. Some of those passages bear repeating.
[45] In Wong the High Court said:[37]
"[64] In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case. Those features will also include those that differentiate between particular cases: the quantity of drug involved, the offender's knowledge about what was being imported, the offender's role in the importation, the reward which the offender hoped to gain from participation. All these are matters properly to be taken into account in determining a sentence. We deal later with the significance to be given to the weight of the drug imported. In general, however, the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed. Our purpose in mentioning these matters is, however, not now to attempt an exhaustive statement of relevant factors, or to attempt some formulation of applicable principles. What is important for present purposes is that it is all of the matters mentioned, and others, including those mentioned in Pt 1B of the Commonwealth Crimes Act, which should be taken into account in formulating applicable principles."
[46] In Tait, the Full Federal Court said:[38]
"On the other hand, the deterrent aspect of punishment is of primary importance in cases of this kind. The sentence should demonstrate to others tempted to engage in lawlessness on a vast scale that the punishment to be imposed will be calculated to protect society from the deliberate attack made upon it. When an organized, costly and complex offence is contemplated, the risk of apprehension and the severity of punishment is evaluated; and thus there can be no other class of case in which the deterrent effect of punishment can more confidently be assumed to operate. Those who deliberately choose to run the risk of punishment in order to acquire a profit from the venture cannot point to mitigating circumstances of the sort which stand the chance offender in good stead. The extent to which a sentence recedes from the maximum in cases of this kind is limited by the necessity to impose sentences of unequivocal severity as the most efficient means available to the courts to enforce the relevant prohibition."
[47] In Nguyen and Pham Johnson J (with whom Macfarlan JA and Hulme J agreed) said, in relation to the relevant sentencing principles:[39]
"[72] The following general propositions emerge from the authorities:
(a) the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation;
(b) problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court;
(c) it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the "mastermind" does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility;
(d) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported;
(e) the statements by the High Court in Wong v The Queen; Leung v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar;
(f) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit;
(g) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case;
(h) the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment;
(i) involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served;
[48] There are parts of the sentencing remarks which, in my respectful view, make it plain that the learned sentencing judge did consider the issue of parity, even though her Honour did not specifically mention authorities such as Postiglione. One such is:[40]
"Of course, the sentence to be imposed in this case will be influenced - but only influenced - by the sentence imposed upon Gilberto Serna because of the necessity for proportionality between those sentences, but fortunately, I have come to the view that the sentences which I should impose stand in their own right, although they are also proportionate to the sentence imposed upon Mr Serna."
[49] The second was when her Honour was dealing with the individual factors applicable to Golding:[41]
"I have also been assisted by written submissions made on your behalf by Ms Burrows, who is acting for you on the sentence, and to the extent that they are relevant, I have taken them into account. Importantly, Ms Burrows refers to the principle of parity, which I have already referred to, and the sentence given to Mr Serna is one that does provide me with some guidance, though does not bind me in the sentence that should be imposed upon you."
[50] The third occurred after having listed the individual differences between Elfar, Golding and Sander:[42]
"I have taken account of the fact that the sentence imposed on Mr Serna was discounted for the matters that I have mentioned, and none of those discounts apply to any of you. I have also taken into account that notwithstanding that Mr Golding's counsel has not submitted that his role was slightly lesser than that of Mr Elfar, it seems to me that the evidence shows that Mr Elfar's criminality was slightly more than Mr Golding's. Of course, Ms Burrows is in the invidious situation of having appeared for both on the trial. That might explain her not making that submission. No doubt, of course, I accept that she would be acting on instructions not to make that submission. Nevertheless, I must act on the evidence which I have before me."
[51] Although the fourth did not occur during the sentencing remarks themselves they reveal that the learned sentencing judge was acutely aware of the necessity for parity to be considered, and the test for whether it had been met. In that sense they give some context to the three passages above from the sentencing remarks. When Counsel for Sander was making submissions as to the sentence for his client her Honour responded:[43]
"HER HONOUR: I would have thought that if your client got the same head sentence as Mr Serna, Mr Serna would have a justifiable sense of grievance, because he pleaded guilty and demonstrated remorse, as the judge says, and ... made extensive and early admissions, and the case against him was at least in part based on those admissions which, of course, brings into account Queen against AB. So I would have thought a sentence in the vicinity, the same as or not much different from Mr Serna's would leave Mr Serna with a justifiable sense of grievance, so - - -."
[52] In Postiglione the relevant principles as to parity were summarised by McHugh J:[44]
"The principle of parity of sentencing between co-offenders is not in terms recognised in the Act but it is a well established principle. In R v Tiddy, the Court of Criminal Appeal of South Australia defined the principle as follows:
'Where other things are equal persons concerned in the same crime should receive the same punishment; and where other things are not equal a due discrimination should be made.'
A sentencing judge must give effect to the parity principle in cases to which the Act applies.
If a judge wrongly fails to give effect to the parity principle, an appellate court will intervene to correct what is an error in sentencing principle. In Lowe v The Queen, Gibbs CJ, with whom Wilson J agreed, said that an appellate court should intervene where "the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done". Mason J stated that an appellate court is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance. Dawson J, with whom Wilson J also agreed, was of the view that "[t]he difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice"."
[53] Dawson and Gaudron JJ expressed the principle this way in the same case:[45]
"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a "justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. The different circumstances involved in this case, namely, the fact that Savvas was the principal organiser in both conspiracies and that Postiglione rendered significant assistance to police and prosecuting authorities, clearly require that Postiglione receive a markedly lesser sentence than that imposed on Savvas."
[54] Thus the parity principle proceeds on the basis that equal justice requires that like should be treated alike but if there are relevant differences, due allowance should be made for them.
[55] When considering this question one must bear in mind what was said in R v Tout: [46]
"[A] contention that the sentence is manifestly excessive is not established merely if the sentence is markedly different from sentences in other cases. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is 'unreasonable or plainly unjust': Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [58], [59]."
[56] Further, there is no one single correct sentence. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the relevant statutory regime.[47]
[57] A review of the authorities advanced on behalf of the Crown demonstrates that Counsel for Elfar and Golding was, in my respectful view, right to concede that the breadth of the sentencing discretion in cases of this kind is such that the actual sentences imposed could not be said to be manifestly excessive. In particular each sentence is supported by the sentences imposed after a trial in Flavel,[48] Gonzalez-Betes,[49] Campillo Vaquere,[50] and after pleas of guilty in Jackson,[51] Teng,[52] Lam,[53] Wangsaimas[54] and Lee Vanit.[55]
[58] That concession was made on the basis that Counsel did not necessarily resile from what was contained in the written outline. In that respect, apart from the parity issue the submission was that a sentence of 20 years with a non-parole period of 14 years should be substituted for that which was imposed by the learned sentencing judge. Only one authority was relied on to support that submission, namely Thompson. However, for reasons which follow I do not consider that Thompson compels the conclusion that the sentence imposed was manifestly excessive.
[59] Thompson involved a master mariner (Thompson) who agreed to assist others in transporting half a tonne of powder which contained about 383 kilograms of pure cocaine. The cocaine had a wholesale value of more than $60 million. The plan was for the cocaine to be brought from South America to a point just off New Zealand, where it would be transferred from one boat to another, and then taken to Australia. Thompson spent some time trying to make the yacht originally selected for use, seaworthy, but was unable to do so. A second yacht was purchased by Thompson (using finance from another participant) and he sailed that yacht to meet the vessel carrying the cocaine. It was transferred from one boat to the other and then Thompson sailed to Sydney, where he was arrested. He gave a false name at the time of his arrest and refused to provide any details.
[63] It is apparent from the sentencing remarks made in relation to Serna, that his sentence was influenced by the fact that he made admissions as to the extent and detail of his own involvement, thereby attracting the sort of discount recognised in AB v The Queen.[58]
[64] It is true to say that as between Elfar and Golding there are many features where their participation in the offending conduct was similar or the same. For example, they each left Port Macquarie on the Mayhem at the same time, remained on the Mayhem until they disembarked at Scarborough, each participated in the transfer of the cocaine from the Edelweiss to the Mayhem, and each played a similar role in the transfer of the cocaine from the Mayhem to the Kippa Ring Shopping Centre where the bags were put in Triplett's car.
[65] However, in my view there are particular differences which separate Elfar from Golding. They are as follows:
- (a) Elfar either owned the Mayhem or had free use of it; he was certainly in control of it on the evidence at the trial and as accepted by the learned sentencing judge;
- (b) there was evidence at the trial that Elfar was the one always on the boat and who organised the work for it, and paid the bills;[59] Elfar's control of the Mayhem can be seen from the fact that it was he who had the key to the Mayhem, not Golding, when they were arrested at the Kippa Ring Shopping Centre;
- (c) therefore in that sense, Elfar provided the Mayhem, which was a vital component in the plan to meet another yacht at sea and transfer cocaine to it so that it could then be brought into Australia;
- (d) by contrast Golding seems to have acted merely as a crewman on the Mayhem;
- (e) there was evidence at the trial, accepted for the purposes of sentence, that Elfar was in contact with those on the Edelweiss from as early as 26 June, making between 40 and 50 telephone calls to the Edelweiss from that time;[60]
- (f) by contrast the only evidence of Golding's contact by telephone was that it commenced on 7 September, and his contact was with Triplett; and
[74] For the reasons given above, the grounds of appeal cannot succeed. The application for leave to appeal against sentence must therefore be refused. I propose the following orders:
- In CA 251 of 2015, the application for leave to appeal against sentence is refused.
- In CA 252 of 2015, the application for leave to appeal against sentence is refused.
[75] McMURDO JA: Morrison JA has set out the relevant facts, the respective arguments and the relevant authorities.
[76] Ultimately, counsel for the applicants did not contend that the head sentence of 30 years' imprisonment was too high. The argument for the applicants was that there was a disparity between their sentences and that which was imposed upon the co-offender, Sander, which offends the notion of equal justice. In my conclusion that argument should be accepted.
[77] In my view there was no difference in the level of criminality between the offences committed by Sander and Golding. The sentencing judge did not suggest a difference and nor did the prosecutor. Her Honour distinguished between Golding's case and that of Elfar, saying that the latter involved "slightly more" criminality. Although the basis for that conclusion was not explained, it can be said that Elfar's involvement in the venture was somewhat more extensive than that which was proved against Golding and that he was the person apparently in control of the Mayhem, as Morrison JA has explained.
[78] Upon what basis then did Sander receive a shorter non-parole period than did Golding? Sander had no criminal history; Golding had some history but nothing of significance. Each was a man in his forties. Her Honour referred to Sander having been a model prisoner and that he had a medical problem (with his teeth) which had disadvantaged him in custody. They were relevant but not significantly mitigating factors.
[79] The most influential consideration, as appears from the judge's sentencing reasons, was the way in which Sander's case had been conducted at the trial. He had made admissions and his counsel "did not at any time waste the court's time with irrelevant questions". In my view however, those differences in the conduct of the trial and the other differences, were not considerations which could have justified, for such a serious offence, a reduction of the order of two years of the period which the offender would be required to serve in prison. After all, Sander defended the charge and expressed no remorse. In my view Golding could hold a justifiable sense of grievance that he will have to spend at least a further two years in jail beyond the point when Sander will be eligible for parole.
[1] R v Elfar; R v Golding [2017] QCA 149. (Elfar and Golding)
[2] Elfar and Golding at [6]-[18].
[3] The additional facts are drawn from the remarks at AB 2336-2338.
[4] Referred to in these reasons as "the Mayhem".
[19] Respondent's outline paragraphs 11.1-11.7, referring to the sentence on Serna (25 years with a non-parole period of 13 years), and R v Vo [2000] NSWCCA 440; (2000) 118 A Crim R 320, Teng v R; Lam v R (2009) 22 VR 206, R v Jackson [2003] QCA 31; (2003) 138 A Crim R 148, R v Flavel [2001] NSWCCA 227, R v Gonzales-Betes [2001] NSWCCA 226, R v Campillo Vaquere [2004] NSWCCA 271, R v Wangsaimas (1996) 133 FLR 272, R v Lee Vanit [1997] HCA 51; (1997) 190 CLR 378, and R v Mandagi [2002] NSWCCA 57.
[25] (2010) 205 A Crim R 106, [2010] NSWCCA 238, per Johnson J at [72].
[30] AB 2341 line 41 to AB 2342 line 13.
[31] AB 2342 line 34 to AB 2343 line 32.
[32] AB 2343 line 34 to AB 2344 line 11.
[33] Golding's and Triplett's (the one from the driver's side door of the Corolla).
[36] Applicants' outline, paragraph 122.
[39] Nguyen and Pham at [72]; internal citations omitted.
[44] at 309; internal citations omitted.
[45] Postiglione at 301; internal citations omitted.
[46] [2012] QCA 296 at [8].
[47] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 371 [27].
[48] Importation of cocaine (224kg gross, 172kg pure) from Cuba by boat; helped sail the boat; life sentence with a non-parole period of 25 years.
[49] Same importation as Flavel, but different role; life sentence with a non-parole period of 22 years.
[50] Same importation as Flavel, but different role; life sentence with a non-parole period of 24 years.
[51] Importation of 65kg of cocaine from Mexico; skippered the boat; 25 years with non-parole period of 13 years.
[52] Importation of 82kg of heroin; important role in receiving and transporting it; 20 years and non-parole period of 13 years.
[53] Same importation as Teng, but higher role than Teng; 22 years and non-parole period of 15 years.
[54] Importation of 89kg of heroin; captain of the vessel transporting it; life sentence and non-parole period of 22 years.
[55] Same importation as Wangsaimas, but "executive" on board vessel; life sentence and non-parole period of 25 years.
[56] R v Bartle [2003] NSWCCA 329.
[57] R v Bartle at paragraph [350], where the Court referred to the original start point of 36 years and the reduction because of s 16G.
[60] Exhibit 63 contained the records of those calls.
[63] Appeal transcript T2-22 lines 32-44.
[66] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610 (Gibbs CJ), 613 (Mason J), 616 (Wilson J) and 623 (Dawson J).
R
Elfar & Golding [2017] QCA 170
(1999) 198 CLR 111
(2005) 228 CLR 357
(1997) 189 CLR 295
(1979) 46 FLR 386
(2009) 22 VR 706
(2001) 207 CLR 584
(2010) 242 CLR 520
(2009) 22 VR 206
(1996) 133 FLR 272
(1997) 190 CLR 378
(1984) 154 CLR 606
[15] The location of the Mayhem was tracked by the AFP and other agencies as it sailed towards the Australian coast until, early on the morning of 12 October 2010, it was observed entering Moreton Bay and mooring off the Scarborough Marina.
[16] On the morning of 12 October 2010, Elfar and Golding were seen by AFP and Customs officers leaving the Mayhem in a tender to go to the marina, where they booked a berth. The Mayhem entered the Scarborough boat harbour and tied up at the berth. Half an hour later, Elfar and Golding were observed as they disembarked. Each was carrying a large, heavy duffel bag. They left the marina by taxi, after placing the two bags in the boot.
[17] The taxi took them to the Kippa Ring Village Shopping Centre where they arrived about five minutes later. They walked into the centre with the duffel bags. Golding was seen by officers using a mobile phone and walking towards the exit of the shopping centre, while Elfar was at a table inside the centre with the two bags at his feet. A few minutes later, Golding was again seen using his phone and a few minutes after that, he returned to the table where Elfar was still seated. They were joined by a man called Triplett and another man called Mandas.
[18] Triplett, together with Elfar and Golding who were carrying the duffel bags, walked towards the car park of the centre where Golding placed one bag in the back seat of Triplett's car before sitting in the front passenger seat. The other bag was placed in the boot of the car. Elfar walked back to the shopping centre where, not long afterwards, he was arrested. Golding and Triplett drove away from the shopping centre in the car. It was a Toyota Corolla which had been hired by Triplett.
[19] Two telephones were seized from Golding and from the driver's side door of the Corolla. Both had been registered in false names in September 2010. The two phones were in contact with one another almost exclusively on 3 and 4 October, and then again on 11 and 12 October.
[20] The Corolla was stopped by the AFP. The two men were arrested and the car was searched. An AFP officer removed the duffel bag from the boot. It was found to contain blocks of cocaine. The second duffel bag on the back seat was removed, searched and found to contain blocks of cocaine.
[21] Each of the cocaine blocks found in the bag was comprised of several alternating layers of black rubber, clear plastic wrap and packing tape, inside which was a rectangular block of compressed white powder. The duffel bags in which they were contained were waterproof.
[22] When the Mayhem was searched later that day, drugs were found in two cabins, in packages and bags of the same kind as those which had been taken by Elfar and Golding to Kippa Ring.
[23] The bag in the boot of the Corolla contained 25 kilograms of cocaine and the bag on the car's back seat was found to contain 20 kilograms of the drug. From the Mayhem, some 355 blocks of cocaine were seized, having a gross weight of 355.67 kilograms with a total pure weight of cocaine of 251.6 kilograms. The cocaine from the bags in the car and on the Mayhem was all of a similar nature. In total there was 400 kilograms of material containing 283 kilograms of pure cocaine.
[24] On 13 October 2010, the Edelweiss was boarded by AFP and Customs officers. Sander and Serna were taken on board the Customs vessel and detained and the Edelweiss was taken in tow. There was evidence of phone calls between Golding and those on the Edelweiss.[5]
(j) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence; good character is not an unusual characteristic of persons involved in drug importation;
(k) where offenders are not young (Mr Nguyen was 42 years' old and Ms Pham was 32 years' old), the immaturity of youth cannot be claimed as a factor bearing upon their transgressions."
[60] After the first trial the ultimate sentence in Thompson was 24 years with a non-parole period of 16 years. An appeal from his conviction was successful.[56] When the re-trial was fixed to commence he entered a plea of guilty. At the time when he was convicted the now repealed s 16G of the Crimes Act applied, with the consequence that sentences were reduced to take account of the absence of remissions. The deduction was one-third from a start point of 36 years.[57] Because Thompson pleaded guilty before the second trial, he achieved a reduction to recognise his plea, taking the sentence down to 20 years.
[61] Section 16G was repealed in 2003, and highlights that cases decided before that time have to be scrutinised with care to see whether the application of that section affected the outcome.
[62] The ground relating to a sentence being manifestly excessive has no merit. For these reasons I do not accept that the sentence imposed on Elfar or Golding was manifestly excessive.
[66] There are contrasting features which apply to Sander. He did not own the Edelweiss and was, it seems, brought in because he was an experienced seaman contracted merely to sail the yacht to enable the transfer of the cocaine. The learned sentencing judge proceeded on the basis that he was the captain of the Edelweiss, and Serna was more like a mere crewman. Be that as it may, as between Elfar and Golding on the one hand, and Sander on the other, there are a few distinguishing features, namely:
[67] Counsel for Elfar and Golding attacked the cooperation and admissions, as minimal and that the witnesses called as a consequence might have added only 100 or 150 pages of trial evidence.[63] It was also said that the "minimal cooperation" and "not wasting the Court's time" were more a product of the forensic skills of Sander's Counsel, than anything attributable to Sander himself.
[68] It is true to say that one can examine the trial transcript to see how many witnesses were called when they did not need to be because of the admissions, and to examine how many pages of evidence were occupied by those witnesses. However, in my view, that approach is not particularly helpful when one is considering whether a sentencing judge, in the course of that judge's synthesis of all relevant factors, has erred. The process of calculating the number of pages or the number of witnesses tends to an arithmetical approach which is the antithesis of the approach that a sentencing judge must take. Further, it runs the risk of lending disproportionate weight to that analysis at the expense of the second aspect of Sanders' cooperation, namely that the instructions to his Counsel resulted in the trial running more efficiently, because of the limited way issues were contested. The learned sentencing judge accepted that to be part of the character of Sanders' cooperation.[64] The benefit of the trial being conducted that way is something best assessed by the trial judge, rather than an appellate court. Once it is accepted that the cooperation had that element, as well as the benefit of obviating the need for certain witnesses, it becomes difficult to criticise the fact that the learned sentencing judge took that into account. Moreover, unless there is demonstrable error it is difficult to criticise the way in which it was taken into account.
[69] In my respectful view, the learned sentencing judge treated the sentences for Elfar, Golding and Sander, and in particular in relation to the non-parole periods, in a way which properly reflected the factors which distinguished one from the other. At one end of the analysis conducted by her Honour was the sentence imposed on Serna, namely 25 years imprisonment with a non-parole period of 15 years. That was a sentence imposed on someone whose role was as a crew member on the Edelweiss, but who had provided "a great deal of assistance to the investigating authorities, particularly in terms of the extent and detail of his own involvement", and pleaded guilty.[65] In addition Serna had expressed consistent remorse. Given that none of those factors applied in the case of Elfar or Golding, plainly the learned sentencing judge could not impose a sentence of the order of that imposed on Serna.
[70] No criticism can be justifiably levelled at the learned sentencing judge's selection of 30 years imprisonment as the head sentence. That did not form part of the submissions concerning parity, and, as set out above, that component cannot be said to be manifestly excessive.
[71] Therefore, bearing in mind that there were distinguishing features between Serna, Elfar, Golding and Sander, which have been reviewed above in paragraphs [63] to [66] above, the learned sentencing judge was right to recognise those distinguishing features by differing non-parole release dates. The 16 years applied in the case of Sander was only marginally more than the 15 years for Serna. That it was only marginally more reflected Sander's greater role than that of Serna but also the cooperation Sander had provided. That combination resulted in a higher head sentence for Sander, but a non-parole period closer to that of Serna.
[72] Neither Elfar nor Golding had the benefit of the cooperation identified by the learned sentencing judge in the case of Serna or Sander. It would, therefore, have been inappropriate to give them the same non-parole period. Further, as between Elfar and Golding there can be little doubt that Elfar had the greater involvement, in that he made the Mayhem available and had a longer, earlier and more intense connection with those on the Edelweiss than Golding ever had in his communications with Triplett. In those circumstances the differing non-parole periods as between Elfar and Golding are explicable.
[73] In my view, neither Elfar nor Golding can have a justifiable sense of grievance at the differing non-parole periods, either as between themselves or as between either of them and Sander. I am unable to come to the view that the learned sentencing judge, in imposing differential non-parole periods, misapplied principle of parity, or otherwise fell into error.
[80] Therefore I conclude that Golding's application for leave to appeal should be granted, his appeal allowed and his sentence varied. I would vary his non-parole period to one of 16 and one half years, which would acknowledge the existence of the mitigating factors, such as they were, in Sander's case.
[81] Counsel for the applicants submitted that the same result should follow for Elfar. Because of the judge's finding that Elfar's level of criminality was higher, which can be justified as Morrison JA explains, I do not accept that argument. But there would be a disparity if Elfar's non-parole period was not varied at all. Therefore I would grant him leave to appeal, allow the appeal and vary his non-parole period to one of 18 and one half years.