Court of Appeal (Qld)|2008-06-13|Before: McMurdo P, Fraser JA and Fryberg J, Separate reasons, for judgment of each member of the Court, each concurring as to the orders, made
McMurdo P, Fraser JA and Fryberg J, Separate reasons, for judgment of each member of the Court, each concurring as to the orders
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – applicants
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPEAL BYCONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – applicantswere involved, with others, in a sophisticatedheroin trafficking operation– both applicants pleaded guilty to trafficking heroin over 11 monthperiods – Ly was sentencedto 12 years imprisonment and declared to beconvicted of a serious violent offence – Kyprianou was sentenced to 10years and6 months imprisonment and declared to be convicted of a seriousviolent offence – neither applicant was a heroin addict, andeachparticipated in the trafficking for profit – Kyprianou had a slightlylower level of involvement in the operation thanLy – references and apsychological report tendered on Kyprianou's behalf showed good prospects ofrehabilitation – whetherthe sentences were manifestly excessive
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– GROUNDS FOR
INTERFERENCE – GENERAL PRINCIPLES – Kyprianou settled an action
against him by the Commonwealth DPP
under the Proceeds of Crime Act 2002
(Cth), forfeiting property the proceeds of the trafficking to the Commonwealth
– whether co-operation with Commonwealth authorities
is a mitigating
factor when being sentenced for a Queensland offence – whether Kyprianou
had co-operated with the Commonwealth
authorities – whether the sentencing
discretion miscarried
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– GROUNDS FOR
INTERFERENCE – GENERAL PRINCIPLES – Kyprianou returned to Australia
from Cyprus knowing that he would
be arrested upon his arrival – whether
his voluntary return put Kyprianou in a special category of case requiring
extraordinary
leniency – whether the sentencing discretion
miscarried
Criminal Proceeds Confiscation Act 2002 (Qld), s 260
Drugs
Misuse Act 1986 (Qld), s 5(a)
Penalties and Sentences Act 1992
(Qld), s 9(2)(i), s 9(2)(r), pt 9A
Proceeds of Crime Act 2002
(Cth), s 320
R v Bradforth [2003] QCA
183, cited
R v Kashton [2005] QCA
70, considered
R v Nabhan
R v Kostopoulos [2007] QCA
266, considered
R v Omer-Noori [2006] QCA
311, considered
R v Raciti [2004] QCA
359, cited
R v Slivo [2007] QCA
64, considered
R v Tilley
ex parte A-G (Qld) [1999] QCA
424, considered
Judgment (86 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - applicants were involved, with others, in a sophisticated heroin trafficking operation - both applicants pleaded guilty to trafficking heroin over 11 month periods - Ly was sentenced to 12 years imprisonment and declared to be convicted of a serious violent offence - Kyprianou was sentenced to 10 years and 6 months imprisonment and declared to be convicted of a serious violent offence - neither applicant was a heroin addict, and each participated in the trafficking for profit - Kyprianou had a slightly lower level of involvement in the operation than Ly - references and a psychological report tendered on Kyprianou's behalf showed good prospects of rehabilitation - whether the sentences were manifestly excessive
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES - Kyprianou settled an action against him by the Commonwealth DPP under the Proceeds of Crime Act2002 (Cth), forfeiting property the proceeds of the trafficking to the Commonwealth - whether co-operation with Commonwealth authorities is a mitigating factor when being sentenced for a Queensland offence - whether Kyprianou had co-operated with the Commonwealth authorities - whether the sentencing discretion miscarried
[3]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES - Kyprianou returned to Australia from Cyprus knowing that he would be arrested upon his arrival - whether his voluntary return put Kyprianou in a special category of case requiring extraordinary leniency - whether the sentencing discretion miscarried
R v Tilley; ex parte A-G (Qld)[1999] QCA 424, considered
[15]
Director of Public Prosecutions (Qld) for the respondent
[16]
[1] McMURDO P: The applicant, Long Tran Ly, pleaded guilty on 11 September 2007 to trafficking in heroin between 15 October 2003 and 28 September 2004. The applicant, George Kyprianou, also pleaded guilty that day to trafficking in heroin between 19 October 2003 and 28 September 2004. Ly was sentenced to 12 years imprisonment and Kyprianou to 10 years and six months imprisonment and each was declared to be convicted of a serious violent offence. Each applies for leave to appeal against their sentence. Ly and Kyprianou contend their sentences are manifestly excessive. Kyprianou also contends that his sentence was tainted by error in that the sentencing judge did not give sufficient regard to his co-operation under the Proceeds of Crime Act 2002 (Cth) or to the fact that he returned voluntarily to Australia to meet the charges against him when he could not have been compelled to do so.
[17]
[2] Both applications for leave to appeal should be refused for the following reasons.
[18]
[3] Ly was aged 31 at sentence and 27 and 28 during the period of his trafficking. His criminal history began in 1995 when non-custodial sentences were imposed for wilful damage, possession of a dangerous drug, unlawful assault, obscene language and obstructing police. In January 1997 he was sentenced to an effective term of one month imprisonment for unlawful assault and wilful damage. In October that year he was placed on three years probation with special conditions including that he receive psychiatric and psychological counselling and treatment for the offences of assault occasioning bodily harm in company, unlawful assault and wilful damage. In December 1997 he was convicted and fined for wilfully giving a false alarm of fire. In January 1999 he was dealt with for breaching the probation order imposed in October 1997 and for five new offences, two of assault occasioning bodily harm in company, one of common assault and two of wilful damage. He was sentenced effectively to four months imprisonment and a further period of probation with special conditions that he submit to treatment for drug and emotional problems and to random drug tests as directed. In September 1999, he was sentenced to 12 months imprisonment for a further count of assault occasioning bodily harm and a count of wounding. In 2004 he was convicted and fined for two counts of being an excluded person not entitled to enter or remain in a casino.
[19]
[4] Kyprianou was aged 29 at sentence and 25 and 26 at the time of his trafficking. He had a relatively minor criminal history commencing in April 1996 when he was sentenced to community based orders for stealing and in November 1996 for assault occasioning bodily harm in company. In 1997, he was sentenced to community based orders for unauthorised dealings with shop goods. In 2003 he was placed on a good behaviour bond without conviction for unlawful possession of weapons.
[20]
[5] The prosecutor tendered a written summary of facts and particulars of trafficking in respect of Ly (Exhibit 3) and a schedule of facts in respect of Kyprianou (Exhibit 4). Those documents were broadly similar in outlining the role of each offender in the trafficking, save that Kyprianou's schedule noted that:
[21]
"LY is considered the more senior of the two in the sense that LY largely remained in the background of the operations leaving the day to day management and activities to be handled by [Kyprianou]."
[22]
By contrast, Ly's summary of facts noted only that Ly "was identified as a member and leader of [the] syndicate" and "[t]he operation was run by both [Ly] and Kyprianou".
[23]
[6] The following facts emerged from Exhibits 3 and 4 and were not disputed by either applicant.
[24]
[7] The two offenders were detected during a joint operation involving officers from the Australian Crime Commission and the Queensland Police Service which commenced in June 2003. The operation targeted three distinct but overlapping drug syndicates based in south-east Queensland. The prosecution case turned on police surveillance, drug seizures and intercepted telephone calls. Ly and Kyprianou operated the syndicate in conjunction with others, including Khon Tran Ly, Simon Townson, Arian Shabanzadeh, Andrew Ryan and Vinh Duong. Ly had links with drug suppliers from other syndicates, including Sam Omer-Noori. Ly employed several trusted people as "runners" to distribute the heroin and organised the supply of wholesale quantities of heroin. Kyprianou conducted the day to day operations of the trafficking business. Ly shared a house with two of the syndicate "runners", Shabanzadeh and Ryan. Ly became more actively involved from time to time when disputes arose over money or missing drugs, when drug purchases were to be made and when new "runners" were recruited for the business.
[25]
[8] On 18 February 2004 Kyprianou arranged for Ryan to collect a 350g block of heroin from Omer-Noori in return for $68,000. On 26 February 2004 intercepted telephone conversations showed that Kyprianou was responsible for organising the supply of heroin to the syndicate. He referred to obtaining a 350g block of heroin for $62,000. On 28 February 2004 Kyprianou and Omer-Noori made arrangements for some of the 350g block of heroin to be provided to Raid Slivo, a member of Omer-Noori's syndicate. Slivo had agreed to sell this heroin. Police seized 204.187g of compressed powder later analysed as containing 49.137g of pure heroin from Slivo's premises that same day.
[26]
[9] In early August 2004 telephone intercepts showed that Ly had organised heroin to be sent to the West End house of his cousin, Lane Loi. On 19 August 2004 police officers searched Loi's house and located in a motor bike helmet in Loi's room 209g of compressed powder later analysed as containing 34.9g of pure heroin. Loi was arrested but denied the drugs were his. The pattern of telephone intercepts clearly showed that this heroin belonged to the syndicate run by Ly and Kyprianou.
[27]
[10] Surveillance revealed that Ly arranged for an Annerley house to be used as a drug storage and distribution point for the syndicate. He actively organised and recruited others to distribute the drugs on behalf of the syndicate through Kyprianou. On 9 September 2004 police executed a covert search warrant at the premises and located scales, kitchen foil, clip seal plastic bags, gloves and a meat cleaver secreted between two walls. Within the floor joists they found a package of white rock weighing 83.8g later analysed as containing 15.379g of heroin. Later conversations intercepted between Ly, Kyprianou and others established that this heroin was owned and controlled by Ly and Kyprianou's syndicate.
[28]
[11] Kyprianou's functions included dealing with wholesale suppliers to arrange the supply of heroin to the syndicate, sometimes through his regular supply stream but occasionally through others including Omer-Noori and Ivan Chen. Kyprianou also managed the day to day operations by regular, almost daily, contact with the "runners". He was clearly in a position of authority over the runners and closely directed their "distribution activities".
[29]
[12] On 28 September 2004 police closed their operation and a search warrant was executed at Kyprianou's house. Kyprianou was overseas; police found no dangerous drugs. Ly was arrested on 29 September 2004. Kyprianou was arrested on his return from Cyprus at Brisbane international airport on 1 October 2004.
[30]
[13] It seems that neither Kyprianou nor Ly participated in police interviews or assisted the authorities in the investigation.
[31]
[14] The prosecutor in her oral submissions at sentence emphasised the following matters. The recorded telephone conversations revealed that the price of heroin per ounce obtained by the syndicate were in the order of $7,000-$7,600. References were made to dealing in amounts exceeding $60,000. The network was quite sophisticated. It employed a number of distributors who dealt in wholesale amounts and retail amounts but not street-level amounts. The smallest quantities mentioned were "eight balls" which weighed 3.5g. The operation employed safe houses for storage of drugs enabling the offenders to distance themselves from the heroin. No distinction should be drawn between Ly and Kyprianou in sentencing. They had different but equal roles in the business. A psychiatric report to be tendered in respect of Kyprianou related to interviews, the most recent of which was 12 months before sentence in October 2006. Kyprianou returned to Australia knowing he would be arrested but he owned real estate in Australia and his parents and his long-term partner were living in Australia. This Court's decision in R v Omer-Noori[1] was comparable. Omer-Noori received a 13 year sentence for trafficking in heroin and other drugs after he pleaded guilty but contested the facts on which his plea was based over a three day hearing. A 12 year sentence was appropriate for both Ly and Kyprianou to reflect the uncontested pleas of guilty, and the fact that unlike Omer-Noori the applicants did not offend whilst on bail or deal in drugs other than heroin.
[32]
[15] The prosecutor also noted that the Commonwealth Director of Public Prosecutions had pursued confiscation proceedings in relation to both offenders. Kyprianou's confiscation proceedings had settled and Ly's remained unresolved.
[33]
[16] Ly's senior counsel at sentence made the following submissions. Ly matriculated from high school in Brisbane in 1993. He worked in a series of short term casual jobs. In 2003 he started a business with his brother retailing the sale of fish and aquarium products. He supplemented his income as a personal trainer and held a Diploma of Exercise Health Science from the Brisbane Institute of Fitness.
[34]
[17] Since 1996 he had been treated by psychiatrist, Dr Ian Curtis, who had provided a 31 page report. Rather than tendering the full report, counsel relied only on portions of it, including the following:
[35]
"His main drug problem is reflected in his lengthy history of the compulsive use of anabolic steroids as part of body building and weightlifting for muscle bulk training dating from around about 1995. In the last 13 years he has abused anabolic steroids by way of self-administration for lengthy timeframes, probably amounting to eight or nine years of the 13 years. This abuse of steroids, and the fostering of narcissistic needs through excessive body building have left him, in my clinical opinion, undoubtedly addicted to, in the DSMIV sense,[2] anabolic steroids."
[36]
[18] Counsel submitted that Dr Curtis formed the following opinion of Ly. Ly had a chronic adjustment disorder with anxiously depressed mood which commenced in mid-adolescence and had continued since because the stresses had not abated. The disorder had been aggravated by his abuse of anabolic steroids. He had a personality disorder with gross immaturity accompanying the chronic adjustment disorder with depressive and anxious features. He was vulnerable, insecure and temperamental with poor internal controls. He seemed to be covering himself with muscle as a defence against interpersonal contact and distress. His abuse of steroids during body building was aggravating underlying long term anger management problems.
[37]
[19] Counsel next submitted the following. The issues raised by Dr Curtis explained Ly's prior convictions for violence which were related to what is colloquially known as "roid rage". Ly's prior convictions were of no particular relevance to the present offending. The best guide to the appropriate sentence was Omer-Noori. Omer-Noori was charged with trafficking over a period of eight or nine months, with the trafficking actually occurring over six months, a slightly shorter period than Ly. Omer-Noori's level of dealing was higher than Ly's because he dealt in a multiplicity of drugs including involvement in the importation of cocaine and, unlike Ly, he continued his trafficking whilst on bail. Omer-Noori had a contested committal and a contested guilty plea in the Supreme Court over three days whereas Ly pleaded guilty at the end of the committal proceedings. In Omer-Noori,[3] this Court stated that the appropriate sentencing range for trafficking by a user or addict selling an assortment of both schedule 1 and 2 drugs, who re-offended on bail, was 10 to 12 years (relying on R v Raciti[4] and R v Bradforth[5]). In re-sentencing Raciti the Court imposed a sentence of 11 years imprisonment. This was the appropriate sentence to impose on Ly.
[38]
[20] Kyprianou's senior counsel at sentence tendered a report from psychiatrist, Dr Ian Curtis, who had also examined Kyprianou. Although dated 5 September 2007, the report related to Dr Curtis's examinations of Kyprianou over a total of three hours on 22 May and 23 October 2006, about a year before sentence. It recorded the following. Kyprianou was of above average intellectual ability and was a qualified teacher. He was a body builder and, like Ly, at the time of his trafficking was probably physically and mentally addicted to anabolic steroids. He used psycho-stimulants such as methylamphetamine for fat loss. He reported that he was never addicted to heroin. He had an 11 year relationship with his 33 year old partner who worked in the banking and finance industry. They had a daughter in August 2007. Kyprianou did not suffer from mental illness and was in remission for his addiction to anabolic steroids and psycho-stimulants abuse. He had no personality disorders but he had human flaws. Kyprianou described his arrest on these offences as "the biggest wake-up call in his life". He was in Cyprus when he heard of Ly's arrest and opted to return to Australia even though he could have remained in Cyprus because he felt he "needed to deal with it". He considered himself a man of commitment who had been loyal to his partner and parents and saw his offending as stupid and shameful. His involvement in heroin trafficking developed incrementally. He had rehabilitated himself for more than a year and had returned to his deeply held values of family life, severing associations with those connected to illicit drugs. Kyprianou's prognosis for remaining drug free was good, although there was a need for ongoing supervision and drug screening.
[39]
[21] Kyprianou's employer since May 2005 provided references attesting to his worth as an employee. Other references were also tendered which supported counsel's submission that Kyprianou was rehabilitated.
[40]
[22] His wife, Quyen Kyprianou, wrote to the judge in these terms. For a few years during their 11 year relationship Kyprianou appeared to be withdrawn and always under stress. Since his arrest he had returned to his prior caring character and was a good family man. He had expressed regret and remorse for his offending. Her recent pregnancy was unplanned but the birth of their daughter was very much wanted by them both. His remorse was exacerbated by knowing that he would be deprived from playing an active role in his baby daughter's life for some time. He provided assistance for both their sets of seriously ill parents. Favourable references were provided by Kyprianou's sister and doctor. Medical reports relating to the ill-health of Kyprianou's father were also tendered.
[41]
[23] Counsel emphasised Kyprianou's solid family background, his prior good character and his plea of guilty which followed a committal by way of hand-up statements without cross-examination. He argued that, whether Ly was sentenced to 12 years as the prosecutor submitted or 11 years as Ly's counsel submitted, Kyprianou should receive a lesser sentence because he was somewhat down the chain of trafficking from Ly and had more mitigating factors. Counsel argued that Kyprianou was entitled to a more lenient penalty than the 13 years imprisonment Omer-Noori received. Omer-Noori was involved in the importation of drugs and so was very close to their source and to the head of the trafficking chain; he was a much more significant player than Kyprianou and was involved in a fairly major wholesale distribution. Additionally, Omer-Noori contested the factual basis of his guilty plea and almost all contested facts were determined against him. He continued his offending whilst on bail. Counsel argued that this Court's decision in Bradforth supported the proposition that 10 to 12 years imprisonment was the appropriate sentencing range for the present offences. Kyprianou should receive a sentence of 10 years imprisonment.
[42]
[24] In reply, the prosecutor made the following points. Although Ly and Kyprianou had different roles, there was little distinction between their levels of involvement. Whilst a 10 year sentence was substituted on appeal in Bradforth, that took into account nine months of pre-sentence custody which could not be declared so that it was effectively a sentence of 11 years imprisonment.
[43]
[25] The sentencing judge considered that Ly and Kyprianou's heroin trafficking network was sophisticated. Ly's position in the network was superior to others and, although precise relationships were difficult to determine, he played a significant part in the organisation. His Honour referred to Ly's personal circumstances, including his abuse of steroids and Dr Curtis's diagnosis of personality disorder. The judge considered that the cases of Omer-Noori and Bradforth were relevant, especially Muir J's observation in Bradforth at [29]. His Honour did not set out that passage, but it provides:
[44]
"Major determinants of penalty in trafficking cases include the type of drugs supplied, the quantity of the drugs, their value, the nature of the venture or undertaking, and whether the activities are commercial or are engaged in to feed a habit. In all cases, however, regard must be had to the maximum penalties imposed by statute and the recognition by the Legislature and the courts that the purveying of drugs of the nature of those under consideration, however motivated, has the potential to cause much individual suffering, as well as social harm and decay."
[45]
His Honour noted Ly's early plea of guilty at the end of the committal proceedings and determined that a period of 12 years imprisonment was appropriate in his case.
[46]
[26] The Judge considered Kyprianou's level of involvement was difficult to accurately assess but he, too, was an important part of the syndicate's network for the distribution and sale of heroin. His involvement was "roughly similar" to Ly's but he had "a slightly lesser role". His Honour referred to Dr Curtis' report, Kyprianou's promising prospects of rehabilitation, personal background, early plea of guilty, and his voluntary return from Cyprus knowing he would be charged with the present offence. His Honour imposed a sentence of 10 years and six months imprisonment.
[47]
[27] Both Ly and Kyprianou were declared convicted of serious violent offences.
[48]
[28] Mr A J Kimmins contended that in sentencing Ly to 12 years imprisonment, the learned sentencing judge must have accepted the prosecutor's submission that, but for his guilty plea and circumstances of mitigation, a sentence of about 15 years was appropriate. A starting point of 15 years imprisonment in Ly's case was excessive. In support of that submission he relied primarily on Omer-Noori but also on R v Slivo;[6] R v Nabhan; R v Kostopoulos;[7] R v Tilley; ex parte A-G (Qld);[8] and R v Kashton.[9] These cases, he argued, indicated that the starting point for Ly's sentence should have been between 10 and 12 years imprisonment. He contended that Ly was not given sufficient credit for his early plea of guilty at the end of the committal hearing and the fact that he was committed for sentence to the Supreme Court; that he was not in breach of any court order such as bail, suspended sentence or parole at the time of his offending; that he did not contest the prosecution's factual basis for his plea and he had no relevant criminal history. Taking into account these factors, he submitted that the 12 year sentence was manifestly excessive and that a sentence of between nine and 10 years should be substituted.
[49]
[29] Mr Callaghan SC on behalf of Kyprianou emphasised the following matters. Kyprianou had no relevant prior convictions. References tendered on his behalf spoke of his great remorse and that he had since become a committed father. The unchallenged psychiatric evidence indicated that his rehabilitation prospects were extraordinarily good. An important mitigating factor was that he was in Cyprus at the time police officers brought their investigation to a close. According to material relied on by Kyprianou, Cyprus would not permit his extradition to Australia because he was a Cypriot citizen. He nevertheless returned voluntarily to Australia and with full knowledge that a trafficking charge and a substantial custodial sentence awaited him. His co-operation in returning saved authorities considerable expense and demonstrated genuine remorse and contrition which was further supported by his early plea of guilty and references. His voluntary return was an unusually significant mitigating factor that put Kyprianou's case into a special category warranting leniency. A sentence only 18 months less than that imposed on Ly did not sufficiently recognise this greatly significant mitigating factor.
[50]
[30] Mr Callaghan also relied on an affidavit of solicitor, Mr Richard Carew, who deposed that the proceedings taken against Kyprianou under the Proceeds of Crime Act 2002 (Cth) had been settled in February 2006 without the need for any contested litigation. Real estate worth about $1 million in which Kyprianou and his partner had an interest had been sold and about $500,000 had been forfeited to the Commonwealth. Mr Carew deposed that had the matter proceeded to trial it would have taken four court days. If Kyprianou were being sentenced for a Commonwealth offence, under s 320Proceeds of Crime Act, a sentencing court could have had regard to his co-operation in resolving the Commonwealth's action under this Act. Mr Callaghan argued that Kyprianou's co-operation with the authorities in this way was a relevant mitigating matter to be taken into account by a court sentencing for an offence against the law of Queensland: s 9(2)(r)Penalties and Sentences Act 1992 (Qld). He submitted that the sentencing judge erred in not doing so.
[51]
[31] Mr Callaghan urged the Court to find that these were material errors affecting the sentencing judge's reasoning; they required this Court to re-sentence him. The many significant mitigating factors required a sentence one-third less than that imposed on Ly, namely eight years imprisonment. Mr Callaghan conceded that a serious violent offence declaration was warranted because of parity issues.
[52]
[32] Before turning to the relevant factors individually pertaining to Ly and Kyprianou, it is useful to briefly refer to some of the cases said by counsel to be comparable.
[53]
[33] In Omer-Noori, the trafficking was at wholesale level in large quantities of heroin, methylamphetamine, cocaine and ecstasy over a period of about six and a half months. He continued to traffick whilst on bail. He was about 31 years old at the time of the trafficking. The sentencing judge considered that, had the matter gone to trial, a sentence of not less than 15 years imprisonment would have been appropriate. Omer-Noori pleaded guilty although he contested the facts on his sentence over a three day hearing. He was sentenced to 13 years imprisonment. This Court referred to appellate decisions including Bradforth. It noted Omer-Noori's substantial and broadly-based entrepreneurial activity with no element of supporting a drug habit and his continuing business operations whilst on bail. This Court concluded that the sentence of 13 years imprisonment gave adequate credit for his plea of guilty and was within the appropriate sentencing discretion.[10]
[54]
[34] In R v Slivo,[11] 13 years was imposed at first instance after Slivo pleaded guilty to trafficking in heroin and other drugs over a five month period. He also pleaded guilty to six drug related charges on an earlier indictment for which he was sentenced to lesser concurrent sentences. Slivo was 27 years old and had prior convictions for a wide assortment of minor offences including possession of a dangerous drug. His trafficking was not undertaken to support a drug habit. His plea of guilty was advised only comparatively late, weeks before his listed trial. The sentencing judge considered that, but for the plea of guilty, a sentence of 15 or 16 years would have been appropriate. Slivo's 13 year sentence matched Omer-Noori's, even though Silvo did not contest any of the facts alleged against him by the prosecution in his plea of guilty. Slivo's sentence for trafficking was a global one, however: it was concurrent with earlier sentences for supplying dangerous drugs. For those reasons, this Court did not consider that Slivo's sentence was manifestly excessive or offended parity principles.[12]
[55]
[35] In Nabhan and Kostopoulos, Nabhan pleaded guilty to trafficking involved an array of drugs: cocaine, methylamphetamine, ecstasy, and GHB (gamma hydroxybutyric acid). He also pleaded guilty to possessing methylamphetamine and ecstasy. Nabhan was sentenced to 13 years imprisonment for trafficking and to concurrent lesser sentences for the possession offences. He was 33 years old with a minor criminal history involving possession of drugs. He was a significant player in the trafficking, although below the level of his co-offender, Kostopoulos. Nabhan committed the two possession offences whilst on bail. Nabhan pleaded guilty, then sought to withdraw his plea for a time, before reverting to his guilty plea. This Court considered Nabhan's 13 year sentence was well within range. Kostopoulos was sentenced to 15 years imprisonment to be served cumulatively with the 21 month balance of earlier suspended terms of imprisonment. Keane JA, with whom the other members of the Court agreed, pertinently observed that it was:
[56]
"... important to deprecate any attempt to demonstrate error on the part of a sentencing judge by approaching the comparison of one case with another as if that process was capable of yielding a mathematically precise result."[13]
[57]
This Court concluded that the sentences imposed on Nabhan and Kostopolous were not manifestly excessive in the circumstances.
[58]
[36] In Tilley, the Attorney-General appealed against Tilley's sentence of nine years imprisonment for trafficking in heroin and methylamphetamine. She was also sentenced to a concurrent two year term for breach of suspended sentences in relation to prostitution. She pleaded guilty at an early stage. This Court made the following observations. Moderation was required because it was an Attorney's appeal against sentence. Trafficking in heroin for exclusively commercial reasons by someone with a substantial relevant prior criminal history made the offence especially serious. This was mitigated by Tilley's early plea of guilty. Even taking into account that it was an Attorney's appeal, the sentence was so inadequate that this Court was required to interfere, albeit with the moderation and circumspection that had to be applied. This Court determined to leave in place the nine year head sentence but imposed a serious violent offence declaration which meant that Tilley would not be eligible for parole until she had served 80 per cent of her sentence. Clearly this sentence was at the low end of the applicable range.
[59]
[37] In Kashton, 10 years imprisonment was imposed on a plea of guilty to trafficking in heroin and methylamphetamine. Kashton re-offended whilst on bail. He had profited by about $156,000 from trafficking over an almost two and a half year period. He was found in possession of weapons and was also involved in a police chase. He was 39 years old at sentence and had a "substantial criminal history dating back to 1983, including cannabis offences in 1987, 1993 and 1997. He was a cannabis user but not a user of heroin or methylamphetamine."[14] Holmes J (as her Honour then was) noted in terms independently later echoed by Keane JA in Nabhan and Kostopoulos:
[60]
"While it is useful and appropriate to advert to what can be identified as a sentencing range, the sentencing process, obviously enough, is not really one of applying arithmetic within absolute limits. The essential question here is whether the sentence was manifestly excessive."[15]
[61]
The Court determined that the sentence of 10 years imprisonment was not manifestly excessive.
[62]
[38] This brief review of the cases to which this Court has been referred in the present appeals does not suggest that the sentences imposed on Ly and Kyprianou are outside the established range where there is an early plea of guilty for reasonably high level, substantial commercial trafficking by non-addicts over the best part of a year. The maximum penalty for the offence of trafficking in heroin was 25 years imprisonment.[16] Ly and Kyprianou's extensive managerial involvement in the heroin sale and distribution network was a serious example of one of the most concerning offences against our criminal law. The insidious addiction fostered by such trafficking imposes a heavy social and economic burden on families affected by it and on the broader community. Both Ly and Kyprianou were mature men with criminal histories. Their prior convictions were not directly relevant to trafficking in heroin but demonstrated anti-social behaviour and a failure to respond to the leniency of, and opportunity offered by, past community based orders. But for the mitigating features, sentences of 15 or 16 years imprisonment would have been open. With the plea of guilty, the range was from nine to 13 years imprisonment with a declaration under pt 9A of the Penalties and Sentences Act.
[63]
[39] There was little to be said in Ly's favour other than his early plea of guilty at the committal proceedings. He was involved at a high level in trafficking in the addictive drug heroin. He was not himself an addict, but enthusiastically and substantially profited from the addiction of others, through a highly organised business operation in which he took a top level managerial role. His sentence of 12 years imprisonment was well within range.
[64]
[40] Kyprianou had considerably more mitigating features than Ly. As the sentencing judge recognised, although Kyprianou was also involved in the heinous business of trading in heroin at a high managerial level, his role seemed to be slightly below that of Ly. He was not an addict, but, like Ly, was keen to profit from the misery of those who were. The references and the psychiatric report tendered on his behalf (although almost 12 months out of date) did suggest that he had real prospects of rehabilitation. No such material was placed before the Court in Ly's case.
[65]
[41] Kyprianou's voluntary return to Australia was a relevant mitigating feature. I am not persuaded, however, that it was in the truly remarkable category as his counsel contended. Kyprianou had an 11 year relationship with his current partner. She and both sets of their ageing parents lived in Australia; he owned valuable real estate here. The reality was likely to be that life as a fugitive, separated from his financial assets and loved ones, would not have been an especially attractive alternative.
[66]
[42] More detailed material in Mr Carew's affidavit about Kyprianou's settlement of the Commonwealth's action against him under the Proceeds of Crime Act has been filed in this Court and placed with the Judges' papers. Section 320 of that Act (which provides that a sentencing court may have regard to co-operation with the Commonwealth under that Act) does not have legal effect when sentencing for an offence against Queensland law. By contrast, s 260Criminal Proceeds Confiscation Act 2002 (Qld) ("the Qld Act") requires that a court must not have regard to forfeiture proceedings under the Qld Act in deciding the sentence to be imposed. Section 260 does not, however, preclude a sentencing court from taking into account co-operation with the authorities, whether Federal or State. Co-operation with Commonwealth authorities, whether under the Proceeds of Crime Act or in other ways, may be a factor which a judge sentencing for an offence against Queensland law could take into account in a general way when considering remorse, rehabilitation and co-operation with the administration of justice: cf ss 9(2)(i) and 9(2)(r) Penalties and Sentences Act. Such co-operation, whether with Federal or State authorities, may be a relevant mitigating factor when sentencing for either a State or Federal offence. Appropriate credit should be given in the sentences imposed on such offenders to encourage them and others to fully co-operate in every way. It is unnecessary to determine whether this Court should receive Mr Carew's affidavit. The evidence contained in it was not before the primary judge. But in any case it does not demonstrate whether the settlement reached between the Commonwealth and Kyprianou was one which demonstrated co-operation with the authorities. It may have been a favourable settlement to Kyprianou and his partner. The evidence from Mr Carew does not demonstrate any particular co-operation with the administration of justice. Indeed, the large amount of money forfeited to the Commonwealth by Kyprianou provides compelling evidence of his extensive commercial heroin trafficking. This, no doubt, was why the settlement was not emphasised by Kyprianou's experienced senior counsel at sentence.
[67]
[43] The sentence of ten and a half years imprisonment imposed on Kyprianou was 18 months less than that imposed on Ly. This reduction gave sufficient recognition to the greater mitigating factors in his case. Those mitigating features cannot, however, outweigh the gravity of the offence to which he pleaded guilty. His sentence was much less than the 15 or 16 years imprisonment which he would have faced without mitigating features. As this Court said in Kashton and Nabhan and Kostopoulos, it is not helpful to attempt to apply mathematical precision by comparing the sentences imposed on one offender for trafficking in dangerous drugs with that imposed on another. Each case turns on its own relevant features. What can be said is that the sentences imposed on Ly and Kyprianou were within the established range demonstrated by other broadly comparable sentences. The sentences appropriately balanced the mitigating features and the pertinent distinctions between the two offenders, who both committed extremely serious offences against society.
[68]
[44] Each application for leave to appeal should be refused.
[69]
[45] FRASER JA: I have had the advantage of reading the reasons for judgment of the President. I agree with the orders proposed by her Honour, and with her reasons for those orders.
[70]
[46] FRYBERG J: In each matter I agree with the order proposed by the President and with her Honour's reasons for that order.