R v Parsons & Sanders [1999] QCA 402

Court of Appeal (Qld)|1999-09-24|Before: McMurdo P, Pincus JA, Thomas JA, Mr P, Murdo P

1 McMURDO P: I have read the joint reasons for judgment of Pincus and Thomas JJA and agree with them that both applications should be refused for the reasons they have given.

2 I would only add these additional comments in respect of Parsons' application. The learned primary judge noted in the course of sentencing the applicant:

"Certainly, your pleas of guilty have saved the cost to the Crown of a trial, but it is clear that this undercover operation would have been extraordinarily expensive as well as dangerous for some of the people involved, and I have to weigh up that as well."

3 Whilst it is legitimate to take into account the extent, scale and professionalism of the trafficking in determining an appropriate head sentence, I am not persuaded that the weight to be given to a plea of guilty should be diluted because of the expense and danger involved in gathering the evidence against the applicant. The applicant's plea of guilty warranted a recommendation for parole slightly earlier than the norm but the discount in this case was rightly a modest one taking into account the strength of the prosecution case and the absence of any co-operation with the authorities in identifying other drug dealers. The overall sentence, which includes the parole recommendation, of 8 years imprisonment with a recommendation for parole after 3½ years was, on the facts set out in Pincus and Thomas JJA's reasons, within the exercise of a proper sentencing discretion.

4 I agree with the orders proposed by Pincus and Thomas JJA.

5 PINCUS AND THOMAS JJA: These are two applications for leave to appeal from sentences imposed in the Supreme Court for cannabis offences. The applicant Parsons is a middle-aged man who was at the head of a chain of distribution of cannabis, in the sense that he was buying substantial quantities from people who imported it from Papua New Guinea. The applicant Sanders is a woman aged 37 years who was engaged in the wholesale business of dealing in cannabis, supplied by Parsons. Each of the applicants pleaded guilty to charges of trafficking in cannabis, Parsons being sentenced to 8 years imprisonment with a recommendation for consideration of parole after having served 3 years and 6 months, Sanders being sentenced to 4 years imprisonment with a recommendation for consideration of parole after having served 18 months. The principal arguments for Parsons are that the learned sentencing judge gave too much weight to his past criminal history and that Parsons was too harshly treated by comparison with the sentenced imposed on one Cotchin, who was sentenced to 6 years imprisonment with a recommendation for parole after 2 years 9 months. It is argued for Sanders that the sentencing judge acted on the basis that her business of dealing in cannabis was much more substantial than, according to the information before the court, it was in reality.

6 It is convenient to discuss the applications separately.

7 This applicant had a substantial criminal record. He had committed property offences including breaking and stealing offences and had also been found guilty of illegally using motor vehicles and of assaulting police. From 1967 to 1973 he was sentenced to imprisonment on nine separate occasions, the longest term being 3 years imposed in 1972. But it is argued on his behalf that he had few offences and no terms of imprisonment since 1973, when he was 25 years of age. The submission is correct; nevertheless, there is no doubt that Parsons' criminal history is a point against him. Comparing Parsons with Cotchin, we note that Cotchin (who had only one previous custodial sentence, of 3 months) had in his record a number of drug offences, one as recent at 1996, and that Parsons, so far as the record shows, had committed no such offences previously.

8 We have indicated above what was submitted against Parsons; no submission was made below to counter the Crown contention that Parsons was buying substantial quantities of cannabis from persons who imported it from overseas. Extensive details of the results of telephone surveillance were placed before the sentencing judge. Both Cotchin and Parsons were present when on 30 April 1998 there was a sale of 4 kilograms of cannabis for $20,000, arranged by Parsons and Cotchin; Parsons received $19,000 in cash, the $1,000 discrepancy apparently being said to be an error. On that day, there were also discussions to which Parsons and Cotchin were party for the supply of 40 kilograms of cannabis per month. Parsons gave details of the way in which the 40 kilogram packs would be made up; on that occasion the $1,000 short-paid in relation to the $20,000 transaction was handed over to Cotchin. There were numerous other telephone conversations consistent with Parsons being engaged in the cannabis dealing business.

9 On 10 June 1998, Parsons discussed having to get rid of 10 one kilogram slabs and offered the 10 kilograms at a price of $40,000. On 23 June there was a conversation indicating that Parsons and Cotchin were to deliver a 1 kilogram slab of cannabis at Yeppoon and it appears Parsons travelled on that day for that purpose. There was an arrangement made for the supply of 20 kilograms of cannabis for $100,000 to an undercover officer; that was to take place on 24 July 1998. By pre-arrangement Parsons came to a shopping centre car park with the $100,000 worth of cannabis. The undercover officer and Parsons agreed that that would be a "permanent arrangement each month". On that occasion Parsons was arrested.

10 Comparing Parsons with Cotchin, who was also convicted of trafficking, the critical difference between the two is that, as was not disputed below, Cotchin was at least in general dealing at a lower level than Parsons was. This proposition is best illustrated by the transaction just referred to, a sale by Parsons of $100,000 worth of cannabis, intended to be the first of a series of such sales, each month. It has to be conceded that, as was submitted on behalf of Parsons, the telephone summaries show Cotchin to have been heavily involved in cannabis dealing. The basic ground of distinction between Cotchin and Parsons, however, which we have mentioned, justified such a discrepancy in their treatment by the sentencing judge as that complained of.

11 The question remains whether, parity apart, Parsons' sentence was too heavy. We have been referred to a number of sentences relating to cannabis, but none of them appears to be directly comparable with Parsons' circumstances. As is commonly the case, there is no accurate information as to the precise scale of trafficking actually engaged in or the income Parsons derived from it. But one must be impressed by the circumstance that Parsons was in a position not only to obtain and supply $100,000 worth of bulk cannabis, but to arrange to do that monthly. If carried out, such an arrangement would have produced an income in excess of $1M a year. Although it may well be that such a return would have been greatly in excess of the amounts Parsons was in reality receiving, on business actually conducted, the $100,000 sale with the potential for regular repetition is in our opinion an important factor against his application.

12 We would refuse Parsons' application for leave to appeal.

13 It was contended on behalf of Sanders, who has no previous convictions, that she was not involved in the larger transactions, as Parsons was, and that her role was "regularly to pass on messages". The learned sentencing judge took a different view; her Honour thought she had "greater organisational skills and intelligence" than Cotchin and said:

" . . . you had a large number of transactions with many dealers, very large quantities of cannabis were involved, very large sums of money and there were extensive dealings with suppliers".

Having read the summary of the telephone intercepts involving Sanders (Exhibit 5) we have formed the view that her role was not confined to passing on messages. The clear conclusion from a perusal of these notes is that Sanders was actively involved in the business of dealing in cannabis. On 3 April 1998 she was contacted and a proposed purchase of 1 kilogram of cannabis previously arranged by Cotchin was put off. On 13 April 1998 Sanders asked if an operative was in a position to make the "big" order that week. On 23 April 1998 Sanders was engaged in conversation relating to a first transaction of a sale of 4 kilograms of cannabis for $20,000, and in that conversation future similar supplies were spoken of. It is true that other conversations are suggestive of dealings at a much lower level, but the primary judge was right in thinking that Sanders' trafficking had to do with some substantial transactions.

14 It may be admitted that the passage we have quoted from the remarks made on sentencing produces an impression of dealing on a grander scale than the telephone intercepts support. Nevertheless, the contention that Sanders was too harshly treated appears to us unsustainable, having regard to the magnitude of some of the transactions in which she was involved.

15 We would refuse each of the applications for leave to appeal against sentence.

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