R v Richards [2017] QCA 299

SUPREME COURT OF QUEENSLAND

CITATION: R v Richards [2017] QCA 299

PARTIES: R v RICHARDS, Daniel John (appellant)

FILE NO/S: CA No 318 of 2016 / SC No 54 of 2015

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: Supreme Court at Townsville – Date of Conviction: 27 October 2016 (North J)

DELIVERED ON: 8 December 2017

DELIVERED AT: Brisbane

HEARING DATE: 29 May 2017

JUDGES: Sofronoff P and Fraser JA and Henry J

ORDERS: Allow the appeal.Set aside the convictions on counts 1 and 3 and quash the sentences on those counts.Enter verdicts and judgments of acquittal on those counts.Quash the sentence on count 2 and substitute a sentence of imprisonment for four years.Order that the term of imprisonment on count 2 be suspended after serving a period of 20 months imprisonment, and the appellant must not commit another offence punishable by imprisonment within a period of four years if he is to avoid being dealt with for the suspended term of imprisonment.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was found guilty by a jury of carrying on the business of unlawfully trafficking in a dangerous drug, unlawful possession of a dangerous drug with the circumstance of aggravation that the quantity of the dangerous drug exceeded two grams, and possessing a vehicle he had used in connection with the commission of a crime – where the conduct alleged to constitute the offence was the appellant aiding Mr Moran to carry on his business of trafficking – where the appellant contended that, in the absence of any direct evidence of any conversation or conduct evidencing knowledge by the appellant of any intention of Mr Moran to repeat the transaction or follow it by any further conduct relating to the drug, the jury could not exclude the reasonable hypothesis consistent with the appellant’s innocence of count 1 that, to the knowledge of the appellant, Moran acted only as a one-off courier – whether the verdict of the jury was unreasonable and cannot be supported by the evidence / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was found guilty by a jury of carrying on the business of unlawfully trafficking in a dangerous drug, unlawful possession of a dangerous drug with the circumstance of aggravation that the quantity of the dangerous drug exceeded two grams, and possessing a vehicle he had used in connection with the commission of a crime – where the conduct alleged to constitute the offence was the appellant aiding Mr Moran to carry on his business of trafficking – where there were jointly admitted facts – where one of those facts was that the other person was convicted by his own plea of guilty of one count of trafficking in methylamphetamine – where during the hearing the respondent acknowledged that evidence of a conviction of a person of an offence is not proof in a subsequent criminal proceeding against a different person – where defence counsel had sought a direction to this effect – where the prosecution did not cavil with the direction proposed by defence counsel – where the trial judge indicated that the direction sought would have to be said in any event – where the direction actually given was diametrically opposed to that which should have been given – whether the learned trial judge erred in directing the jury that it could use the co-offender’s plea of guilty to count one on the indictment in proof of the appellant’s guilt as an aider / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – POWERS OF APPELLATE COURT – where the appellant appealed his conviction on count 1 but did not appeal the convictions on counts 2 and 3 – where the appellant did not seek leave to appeal his sentence – where the appellant was sentenced to four and a half years’ imprisonment on count 1 but no sentence was imposed upon counts 2 and 3 – where the appellant will be left with no penalty for counts 2 and 3 if the conviction on count 1 is set aside – whether the appellate court has the power to impose a sentence on the affirmed convictions in circumstances where the appellant has not lodged an appeal against his sentence on those counts / Criminal Code (Qld), s 7(1)(c), s 668E(1), s 668E(1A), s 688F(1), s 672 / Drugs Misuse Act 1986 (Qld), s 5 / Penalties and Sentences Act 1992 (Qld), s 188 / Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, cited / R H McL v The Queen (2000) 203 CLR 452; [2000] HCA 46, cited / R v Dent (2002) 132 A Crim R 151; [2002] QCA 247, cited / R v Edirimanasingham [1961] AC 454, cited / R v Elhusseini [1988] 2 Qd R 442; (1988) 33 A Crim R 155, cited / R v Hervey & Goodwin (1940) 27 Cr App R 146, cited / R v Kirkby [2000] 2 Qd R 57; [1998] QCA 445, cited / R v Lovelock [1956] 1 WLR 1217; (1956) 40 Cr App R 137, cited / R v O'Grady (1943) 28 Cr App R 33, cited / R v Patena [1996] QCA 152, cited / R v RH McL [1999] 1 VR 746; [1998] VSCA 61, cited / R v Simpson [2008] QCA 413, cited / Ryan v The Queen (1982) 149 CLR 1; [1982] HCA 30, cited

COUNSEL: J Trevino for the appellant / N Rees for the respondent

SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Queensland) for the respondent

THE COURT: The appellant was found guilty by a jury of carrying on the business of unlawfully trafficking in a dangerous drug (count 1), unlawful possession of a dangerous drug with the circumstance of aggravation that the quantity of the dangerous drug exceeded two grams (count 2), and possessing a vehicle he had used in connection with the commission of a crime (count 3).

The appellant has appealed against conviction on two grounds:

“1. The learned trial judge erred in directing the jury that it could use the co-offender’s plea of guilty to count one on the indictment in proof of the appellant’s guilt as an aider (pursuant to s 7(1)(c) of the Criminal Code)…

The verdict of the jury was unreasonable and cannot be supported by the evidence.”

The appellant challenges the convictions only on counts 1 and 3, the challenge to the conviction on count 3 being based upon the arguments advanced in the challenge to count 1.

The trial

The Crown case was that the appellant aided Ramon Moran to carry on his business of trafficking by participating in the transportation from Sydney to Townsville of a vehicle in which a large quantity of methylamphetamine was hidden. The Crown relied upon s 7(1)(c) of the Criminal Code, which deems to be guilty of an offence “every person who aids another person in committing the offence”. That provision requires proof of these matters: a person (“the principal offender”) committed the offence; the defendant assisted the principal offender to commit the offence; the defendant did so intending to help the principal offender to commit the offence; and the defendant then had actual knowledge or expectation of the essential facts of the principal offender’s offence, including any required state of mind of the principal offender.¹

After the close of evidence, the prosecutor amended the Crown particulars of the charges. As amended, the particulars of count 1 alleged that the appellant aided Moran to traffic by four acts (any or all of which were said to be sufficient to prove aiding): providing the vehicle; booking the vehicle for transport; dropping the vehicle off to be transported; and arranging for the vehicle’s collection in Townsville. The appeal record book does not include any Crown particulars of the business of trafficking in methylamphetamine allegedly carried on by Moran or of any state of mind of the appellant.

The Crown prosecutor opened the case to the jury by summarising the effect of the evidence that was subsequently adduced in the Crown case. In relation to count 1, the prosecutor submitted to the jury that the Crown was “not saying here that [the appellant] and Mr Moran were the source or involved in producing the drugs in any way. What we’re really saying is that they were materially involved in facilitating these drugs and their transport from interstate into North Queensland here, all right.” That opening did not explain the basis upon which the Crown alleged that Moran carried on the business of trafficking in the drugs, that the appellant knew that to be the case, or that he intended to assist Moran to carry on any such business.

The evidence upon which the prosecutor relied to prove count 1 was not controversial. On 20 February 2012 police executed a search warrant upon a utility vehicle at the Townsville depot of a vehicle transport business known as “CEVA”. The appellant was the registered owner of the vehicle. Police removed panels from inside the front passenger side of the vehicle and found two cryovac bags in a plastic bag. The combined weight of the substance in the bags was 1,812 grams. Upon analysis the substance contained 176.6 grams of pure methylamphetamine. Police found various documents in the vehicle, including receipts for various purchases in the appellant’s name and other documents in Moran’s name.

A fortnight earlier the appellant and Moran had travelled in the vehicle to a CEVA depot in Sydney. They left the vehicle there under an arrangement that CEVA would transport it to Townsville. A CEVA tax invoice/receipt for the booking dated 6 February 2012 recorded CEVA’s receipt of $1,336.98 for the transport of the vehicle to Townsville, named the appellant under the heading “PICKUP” (referring to the collection by CEVA of the vehicle at its Sydney depot) and named the appellant’s brother, Jason Smith, under the heading “DELIVERY” (a reference to the person who would be entitled to collect the vehicle in Townsville). CEVA would deliver the vehicle also to any person authorised by the appellant or by Jason Smith to collect the vehicle. It was admitted that from 6 February 2012, when the vehicle was dropped off at the CEVA Sydney address, to when police searched the car on 20 February 2012 at the CEVA Townsville address, no items in the car were moved and the front passenger side door was not tampered with.

On 16 February 2012 Moran enquired of CEVA about the arrival date of the vehicle at the Townsville depot. He was told it would arrive on 20 February 2012. The appellant’s brother’s partner gave evidence that on 20 February 2012, she went with the appellant’s brother to CEVA’s premises in Townsville to pick up a car. The police were there. She denied having any knowledge of drugs in the car. A police officer also gave evidence that the appellant’s brother and his former partner attended at CEVA’s premises in Townsville to collect the vehicle. Shortly after 2.00 pm on 20 February 2012 the appellant sent a message to Moran, “that place rung jason n he grabbed that rig n its at mums kickin back.” (In fact the vehicle had not been collected.) Moran responded at 4.21 pm, “Any luck yet ?” The appellant replied, “nah bro, ive rung literally ten times and sent 2 msgs n no reply, so as if he hasnt checked his fone in 2 hours…” A police officer contacted the appellant and they arranged to meet at 3.00 pm on 21 February 2012.

The appellant and Moran spoke to each other by phone twice on 20 February 2012 and again in the afternoon of 21 February 2012. In the first conversation, the appellant told Moran:

“Game over bro…mum just rung me and said better sort something out for ya brother ‘cause he’s lookin’ at six years jail for the drugs that were in ya car…he’s locked up…this is a set up…no one knew”.

In the second conversation on 20 February 2012, Moran told the appellant that Moran had got the appellant onto a plane on the following morning. (The appellant was then out of the State). In the conversation on 21 February 2012, the appellant told Moran:

“This is bullshit bro fucken’ someone tipped ‘em off mate I’m fucken’ hundred percent sure”.

When Moran referred to someone setting up the appellant, the appellant replied that the sad thing was that he and Moran were the only people who knew about it.

A police officer, Detective Sergeant Phelps, gave evidence in the Crown case about the market value of methylamphetamine in Townsville at the relevant time. He ascribed different values depending upon the nature of the sale and the quantity of the drug. A street level sale of methylamphetamine was .1 of a gram and the sale price was usually between $50 and $150, with $50 being the most consistent price in Townsville over a long period; methylamphetamine was also sold by the pound or multiple pounds, with the prices ranging between $45,000 and $90,000 per pound, depending upon a number of variables; in the case of sales of four pounds, the resulting price of between $180,000 and $360,000 would reflect a wholesale price; methylamphetamine was also sold by the ounce (28 grams) for between about $5,000 and $7,000 per ounce; it was also sold by the gram for about $300 per gram; and the police officer agreed that, at that price, 1,812 grams would “equate to $543,600”. (Phelps did not suggest that such a large quantity of methylamphetamine would be sold at a price per gram.)

The appellant did not give or call evidence.

The Crown and the appellant jointly admitted eight facts. The eighth admitted fact was that on 21 October 2016 “Moran was convicted by his own plea of guilty of one count of trafficking in methylamphetamine on or about 20 February 2012.”

Ground 1: direction that the jury could use Moran’s plea of guilty to count 1 on the indictment in proof of the appellant’s guilt as an aider

The trial judge directed the jury that they could find the appellant guilty of the count of trafficking only if they were satisfied beyond reasonable doubt of four things;

“The first is that Moran committed the offence; that is, Moran trafficked in the methylamphetamine that was found in [the vehicle]. Now, that fact is, I would suggest, established by the admission of his plea – relating to his plea of guilty. The second is that the defendant either in some way assisted Moran to traffic or did an act with the purpose of assisting or enabling Moran to traffic, even if that act did not assist.

Now, the acts that are alleged against Mr Richards that it’s said he did with the purpose of assisting or enabling Moran to traffic…providing the vehicle, booking the vehicle for transport, dropping the vehicle off to be transported and arranging for the vehicle’s collection in Townsville…It’s a matter for you whether you can conclude beyond reasonable doubt that the defendant did those acts or a combination of them. The big question though is whether it was done for the purpose of assisting or enabling Moran to traffic, and with that in mind, the third fact or matter that you must be persuaded of beyond reasonable doubt is that he did those acts, assisting, with the intention of helping Moran to traffic.

The fourth matter that you must be persuaded of beyond reasonable doubt is that when he assisted Moran or did the acts with that purpose, he knew that Moran intended to move that quantity – those packages of methylamphetamine as part of a commercial enterprise with a view to subsequent sales. And as I’ve already said, as to the first two, there is the evidence of Moran’s conviction that establishes the first point, that he was the trafficker in the drugs. As to the second point, the evidence relied upon of assistance …is the evidence relating to the dealings at [Sydney] on 6th of February. However, the defendant can only be found guilty of the trafficking only if you’re satisfied beyond reasonable doubt that when he did those things that are alleged to be of assistance to Moran, he did so intending to help Moran, knowing that Moran was going to traffic those drugs in North Queensland, and that means that the defendant had to know of the presence of the drugs and what Moran was intending to do with them.”

(Emphasis added)

There was a live issue at the trial as to whether or not the jury could be satisfied beyond reasonable doubt that the appellant knew of any intention on the part of Moran to repeat the conduct of transporting dangerous drugs or to engage in other conduct in relation to the transport of drugs with a view to making a financial gain. The appellant submitted that the trial judge’s directions invited the jury to ignore consideration of whether the evidence established any such intention on the part of the appellant, rather than merely an intention to assist Moran in the singular movement of the methylamphetamine without any intent to repeat or embark upon other conduct sufficient to establishing carrying on the business of trafficking. The appellant submitted that in consequence of the trial judge’s directions about the eighth admission he was denied a viable avenue of defence to count 1.

In the course of the hearing of the appeal, the respondent acknowledged that evidence of a conviction of a person of an offence is not proof in a subsequent criminal proceeding against a different person that the convicted person did the acts that amount to that offence. So much was established by R v Kirkby.² In that case the appellant was charged with unlawfully doing grievous bodily harm, the Crown case being that the appellant had procured a third party to attack the complainant. McMurdo P expressed the rule in general terms:

“The general rule of evidence is that the conviction of a third party is ordinarily inadmissible as evidence of the facts on which it is based. A plea of guilty by one defendant is in no sense to be regarded as evidence against a co-defendant.”³

The President considered that one exception to the rule was that evidence of the conviction of the principal offender is admissible on the trial of an accessory after the fact.⁴ (The appellant was not charged as an accessory after the fact.) Thomas JA concluded that there was “no principle in the law of evidence which makes evidence of conviction of a third party admissible against an accused in criminal proceedings to prove that the third party did the acts that amounted to the offence”.⁵ McMurdo P and Thomas JA (with each of whose reasons Jones J agreed) also held that in cases in which evidence is adduced of a conviction of a co-offender the trial judge generally should instruct the jury that the co-offender’s conviction is not evidence against the accused.⁶ The principle that the conviction of a third party is ordinarily inadmissible in a subsequent proceeding against a different person as evidence of the facts on which the conviction was based was described in R v Simpson⁷ by White AJA (with whose reasons de Jersey CJ and Keane JA agreed) as “fundamental”.

The respondent accepted in argument that the emphasised parts of the quoted directions are inconsistent with those authorities. The respondent argued that those directions were nevertheless appropriate in this case because of the way in which defence counsel conducted the trial. The essence of the argument was that defence counsel relied upon the eighth admission as proof that Moran did carry on that business. That argument should not be accepted.

In the absence of the jury at the beginning of the second day of the trial, the trial judge recorded that both counsel had sent him a draft of proposed admissions. At that time the draft of the eighth admission included a second sentence which apparently indicated that Moran had admitted possessing the drugs and the vehicle.⁸ Defence counsel submitted that it would be best to delete the second sentence, “and simply instruct the jury that the basis upon which [Moran] entered his plea of guilty forms no part of this case and the charge of trafficking against Mr Richards is to be decided only on the facts presented against him in this trial.”⁹ The trial judge observed that this would have to be said in any event. In subsequent discussions the prosecutor agreed with the statement by defence counsel that, subject to instructions which were being obtained, it accorded with the law that “the plea of guilty doesn’t prove those facts for the purpose of these proceedings”. The prosecutor closed the case for the prosecution immediately after tendering the document setting out the joint admissions, which by then had been amended by the omission of the second sentence of the eighth admission. After the trial judge rejected submissions by defence counsel that the appellant had no case to answer on any of the counts in the indictment there was discussion about appropriate directions to the jury. Defence counsel referred to the direction that he had mentioned earlier the same day that, “Moran’s plea of guilty proves nothing in this trial and doesn’t affect the presumption of innocence”.¹⁰ The prosecutor made submissions and did not cavil with the direction proposed by defence counsel. Before the commencement of addresses, the trial judge gave directions to the jury, including a direction that the prosecution case on count 1 was confined to a case that the appellant aided Moran and that the jury knew that Moran had pleaded guilty to trafficking in the methylamphetamine; the trial judge added that he would be directing the jury about the consequences of that plea of guilty.

The prosecutor submitted to the jury that it was known from the eighth admission that Moran was a drug trafficker. He submitted that the appellant assisted Moran in his business of trafficking in methylamphetamine. The prosecutor relied particularly upon the evidence of Detective Sergeant Phelps, the large quantity of methylamphetamine transported, and suggested sophistication in the way in which that transport was effected.

Defence counsel submitted to the jury that they knew that Moran had pleaded guilty to trafficking drugs in the car being transported,¹¹ it was “the drug trafficker himself” who made an enquiry of CEVA about the arrival date of the vehicle at Townsville,¹² the jury now knew why Moran was very interested in what was going on¹³ (whereas the appellant acted consistently with having no interest or involvement in the car after it was delivered to CEVA in Sydney), and it was now known why Moran kept a close eye on the car that was under the name of his mate the appellant.¹⁴ Defence counsel’s final submission to the jury was to this effect:

Proof by the prosecution that the appellant aided Moran to traffic in drug required proof that the appellant knew about the offence being committed by Moran.

A courier in a single activity was not carrying on the business of trafficking unless he performed the activities with sufficient repetition such as to amount to trafficking.

If the jury found that the appellant knew the drugs were in the car, before they could convict him of trafficking the prosecution also had to prove that he had knowledge of the trafficking committed by Moran.

The prosecution had not proved that Moran was carrying on the business of trafficking because the presence of drugs in the car did not establish that Moran was carrying on the business of trafficking as opposed to being merely a one-off courier for somebody else’s trafficking.

The prosecution did not prove that the appellant knew that Moran was carrying on the business of trafficking.

Thus defence counsel submitted to the jury both that Moran had pleaded guilty to trafficking in the drugs in the car and that Moran was the drug trafficker, but those submissions were made separately, defence counsel did not link the first submission to the second submission, and defence counsel also submitted that the prosecution had failed to prove that Moran was carrying on the business of trafficking as opposed to him being merely a one-off courier of the drug. Furthermore, defence counsel’s address to the jury was made in the context that the trial judge had indicated that he would direct the jury that Moran’s plea of guilty was not evidence against the appellant on the trafficking charge against him.

The respondent argued that other parts of the summing up must have made it clear to the jury that the onus was on the Crown to prove beyond reasonable doubt the circumstances justifying the conclusion that Moran had engaged in the unlawful business of trafficking and that the appellant knew those facts and intended to assist Moran to traffic. The trial judge directed the jury that the appellant was presumed to be innocent, the burden of proof rested on the prosecution to prove his guilt, the appellant could be convicted only if the prosecution established that he was guilty of the offence in question, “the fact that Mr Moran pleaded guilty to trafficking in the methylamphetamine that was found in the car does not affect this presumption”, and the appellant “remains presumed innocent, notwithstanding that Moran has pleaded guilty”. Those directions were given before the directions that the admission of Moran’s plea and his conviction established that Moran trafficked in methylamphetamine. The differing directions are reconcilable upon the basis that although the presumption of innocence was unaffected, the Crown could rely upon the admission as proof of the element of the offence in count 1 that Moran was guilty of carrying on the business of unlawfully trafficking in a dangerous drug. The earlier directions do not assist the respondent’s argument.

Defence counsel did not ask the trial judge to give any redirections to the jury. That is opposed to a conclusion that there was a miscarriage of justice, but here it must be borne in mind that defence counsel had sought the appropriate direction before the trial judge summed up to the jury, the prosecutor did not oppose that direction, the trial judge indicted that the direction would be given, and the direction actually given was both diametrically opposed to that which should have been given and directly inconsistent with defence counsel’s submission that the prosecution had not proved that Moran had carried on the business of drug trafficking.

The appellant has established the error contended for in ground 1.

Ground 2:

The contention in the second ground of appeal that the verdict of the jury is unreasonable and cannot be supported by the evidence obliges the Court to conduct an independent assessment of the sufficiency and quality of the whole of the evidence and decide whether it was reasonable open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence.¹⁵ In conducting that exercise, the Court must steadily bear in mind that the jury is entrusted with the primary responsibility of determining guilt or innocence;¹⁶ “the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial”.¹⁷

As the appellant accepted, the evidence allowed the jury to find that the prosecution had proved beyond reasonable doubt that the appellant knew of the presence of the drug in the vehicle and that he knowingly did acts to assist Moran in transporting that drug from Sydney to Townsville. The appellant’s contention was that, in the absence of any direct evidence of any conversation or conduct evidencing knowledge by the appellant of any intention of Moran to repeat the transaction or follow it by any further conduct relating to the drug, the jury could not exclude the reasonable hypothesis consistent with the appellant’s innocence of count 1 that, to the knowledge of the appellant, Moran acted only as a one-off courier.

The respondent submitted that the necessary inferences could be drawn from the following circumstances. The appellant was registered as the owner of the vehicle in which the drug was found. The appellant and Moran were captured on the CCTV footage at the CEVA premises in New South Wales on 6 February 2012. The appellant’s name appeared on the tax invoice/receipt issued by CEVA on the same day. His brother was named on that tax invoice/receipt and the appellant was also known by the surname Smith. The quantity of methylamphetamine found in the vehicle was very large. The appellant’s brother was intercepted by police at the CEVA premises in Townsville whilst he attempted to collect the car. Police arranged to meet the appellant at 3.00 pm on 21 February 2012. The appellant spoke with Moran on 21 February 2012 and confirmed he had such an appointment. He also spoke with Moran on 21 February 2012 and stated that he and Moran were the only people that knew about it. The respondent contended that when all of the circumstances were taken together, they justified inferences that to the knowledge of the appellant there were drugs in the vehicle that were going to be on‑sold.

Those facts, taken together, are consistent with the appellant knowingly assisting Moran only to transport the drug from Sydney to Townsville. Insofar as there was some sophistication in the transport of the drug that is consistent with Moran knowing that there was a valuable quantity of methylamphetamine concealed in the vehicle. For present purposes, the most significant evidence is the statement by the appellant to the effect that the appellant and Moran were the only people who “knew about it”. That was capable of being treated by the jury as evidence that the appellant and Moran were the only people who knew that a valuable quantity of the drug was concealed in the vehicle transported from Sydney to Townsville. Taken in the context of the other evidence, that justifies a suspicion that the appellant anticipated that Moran would deal further with the drug upon its arrival in Townville, but the evidence is not capable of safely excluding the hypothesis that the appellant knew nothing about Moran’s intended dealings beyond the single transportation of the drug to Townsville. The advantage of a jury in seeing and hearing the evidence unfold at trial could not make up for that deficiency in the Crown case.

The offence in issue was created by s 5 of the Drugs Misuse Act 1986 (Qld). Section 5 was amended in 2016,¹⁸ but the relevant provision remains unchanged:

“A person who carries on the business of unlawfully trafficking in a dangerous drug is guilty of a crime.”

It is relevant to note that in the same part of the Act, Part 2 (“Drug Offences”), s 6 provides (and always has provided) that “A person who unlawfully supplies a dangerous drug to another … is guilty of a crime”. The term “supply” is given an extended definition, which comprehends “distribute” and “doing … any act preparatory to, in furtherance of, or for the purpose of” any such act.

In R v Elhusseini,¹⁹ which the respondent cited, the offender made statements which established that he imported a wholesale amount of a dangerous drug, sold a quantity of it on one date, and subsequently negotiated for regular sales of large quantities at fairly frequent intervals. The respondent referred to a passage in the judgment of Connolly J:

“Acting as a courier of heroin is a commercial transaction and is part of the movement of the heroin from its original source to its ultimate consumer. A courier who engages in the activities connected with the movement of heroin with an appropriate degree of continuity could be said to be carrying on business.”²⁰

Here the evidence did not allow the jury safely to draw an inference that the appellant assisted in the transport of the drug with knowledge that Moran did or intended to do anything amounting to any degree of continuity in that sense. Furthermore, whilst McPherson J referred to authority for the proposition that “trafficking” in a context of the present kind meant “knowingly engaging in the movement of drugs from source to ultimate user”, ordinarily in the context of a commercial enterprise, it is a different question whether the activities established by the evidence amount to “carrying on the business” of trafficking. Proof of the carrying on of a business requires something more than proof merely that the person participated in one transportation of drug. In R v Dent²¹ Williams JA (with whom Davies and Jerrard JJA agreed) observed, with reference to authority,²² that:

“Whilst a single disposal of a quantity of drug may constitute a trafficking provided the transaction is intended to be repeated, ordinarily it will be necessary to establish a degree of repetition or continuity for the offence to be established. The relevant conduct includes all acts which are part of such a business and that includes negotiations with respect to future transactions. Communications with prospective buyers, setting up lines of supply, negotiating prices and terms of supply, arranging for places and times of delivery and like activities can be the indicia of carrying on a business of the type in question.”

Williams JA’s reference in that passage to “a trafficking” was shorthand for the carrying on the business of trafficking in dangerous drugs. The use of that shorthand should not obscure the requirement for proof beyond reasonable doubt of the carrying on of the business of trafficking in a dangerous drug. In one of the cited cases, Patena, Pincus and Davies JJA observed:

“It should be noted, however, that the offence commonly referred to as trafficking is in truth one of carrying on the business of trafficking; see s. 5 of the Drugs Misuse Act 1986…The reference to carrying on business in the section was discussed in Quaile [1988] 2 Qd.R. 103. There, Macrossan J., as his Honour then was, pointed out that a single action, not repeated, can constitute a trafficking and a business can be said to be carried on from the point when the first transaction performed in the conduct of that business has occurred. That conclusion can only be drawn, his Honour said, if the transaction is intended to be repeated…In Elhusseini [1988] 2 Qd.R. 442, it was said that carrying on a business for the purposes of s.5 of the Act implies a degree of continuity (445), that carrying on a business usually involves a series of activities (451) and that evidence of intention with respect to future transactions is particularly relevant where a single sale is relied on by the prosecution (454).

These cases, and indeed the simple proposition that even the largest business must have a beginning, show that the offence of trafficking may be proved even though there has been only a small number of dealings – even one dealing can be enough if it is intended to be the first transaction in what is expected to be a continuing activity.”

An intention to repeat a single drug transaction in some cases may, but not necessarily will, establish that the transaction was an aspect of a business of drug trafficking. In R v Elhusseini, the example was given of a young man with no assets or substantial contacts with drug suppliers who made a sale of a small quantity of heroin at a profit intending to make similar transactions to make his fortune through the sale of dangerous drugs. Williams JA concluded that in such a case a jury could not conclude merely from proof of the intention that the offender was carrying on the business of trafficking in dangerous drugs when he made the first sale. Each case must turn upon its own particular facts and circumstances.

In this case there was no evidence of any “indicia of carrying on a business” of the kind mentioned in R v Dent. The evidence in the Crown case established only one actual or intended transportation of drugs, from somewhere in Sydney to somewhere in Townsville (including the transportation using CEVA as an innocent carrier). There was no evidence against the appellant in the trial of count 1 that Moran had in the past transported, or intended in the future to transport, any drug. The circumstances upon which the respondent relied evidenced a “trafficking” by Moran, in the sense that he was “knowingly engaging in the movement of drugs from source to ultimate user” in a commercial context,²³ but that was not itself a basis for any particular inference about any other relevant conduct of or state of mind held by Moran. The jury could conclude there was a commercial aspect to Moran’s conduct in knowingly participating in the transportation of the drug – he would not have incurred the risk of detection and a long term of imprisonment without reward – but so much is consistent with the appellant believing that Moran acted only as a paid courier in the single transportation proved by the evidence. It may also be accepted that a person who, knowing that a large quantity of the drug was concealed in the vehicle, participated in transporting the drug from Sydney to Townsville, must have assumed that it was destined for retail sale, but that does not justify an inference that, as was the Crown case, Moran himself had sold or intended to sell the drug as an aspect of a business of trafficking in drugs carried on by him.

The evidence of Detective Sergeant Phelps was of no assistance upon this question. Even without that evidence, the inference readily could be drawn that at some time and place the drug transported in the vehicle was destined for sale to an end user, but the Crown case against the appellant was that he aided Moran in the carrying on by Moran of a business of unlawfully trafficking in the drug. It is not to the point that it was likely that some unidentified person at some future time would break the parcels of drug up into smaller parcels and sell the drug to others. Taken as a whole, the evidence in the Crown case was incapable of excluding the reasonable hypothesis that, to the knowledge of the appellant, Moran’s role was confined to the transportation of the drug from Sydney to Townsville.

The respondent did not contest the proposition that acceptance of ground 2 would require the verdict of guilty on count 1, and consequentially also the verdict of guilty on count 3, to be set aside and verdicts of acquittal to be entered instead.

Jurisdiction to re-sentence on count 2

The appellant was sentenced upon count 1 to four and a half years’ imprisonment, with an order suspending the term of imprisonment after two years for an operational period of four and a half years. He was convicted and not further punished upon counts 2 and 3. The sentencing judge explained that no further punishment was imposed on count 2 and count 3 because that criminal conduct was subsumed in the trafficking offence. Accordingly, if the convictions on counts 1 and 3 are set aside, the appellant will be left with no penalty for the remaining conviction on count 2.

After the hearing of the appeal, a directions hearing was convened to seek further submissions about whether the Court would have power to resentence the appellant on count 2 if the convictions on counts 1 and 3 were set aside. In subsequent written submissions, the appellant referred to s 668F(1) of the Criminal Code:

“(1) If it appears to the Court that an appellant, though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the Court may either affirm the sentence passed at the trial or pass such sentence, whether more or less severe, in substitution therefor, as it thinks proper, and as may be warranted in law by the conviction on the count or part of the indictment on which it considers the appellant has been properly convicted.”

The appellant argued that s 668F(1) would be inapplicable because of the absence of any appeal against conviction on count 2²⁴ and the absence of any challenge to the sentence on count 2,²⁵ either by way of an application for leave to appeal against sentence by the appellant or an appeal against sentence by the Attorney-General.

The respondent asked the Court to make an order under s 672 of the Criminal Code staying for a period of seven days any order the Court might make to set aside the conviction on count 1 so as to allow time for the respondent to apply to the Court to reopen the sentence on count 2 under s 188 of the Penalties and Sentences Act 1992 (Qld). Section 672(1) of the Criminal Code provides:

“Where an appeal to the Court is upheld, and the appellant is entitled to have the conviction against the appellant quashed by order of the Court, the Court may, upon application on behalf of the Crown, at any time before the release of such appellant, either by the same or by a separate order, direct that execution of the order quashing the appellant’s conviction be stayed for such time (not exceeding 7 days) as the Court thinks fit; and the Court or a judge thereof shall thereupon make such order for the detention of the appellant or the appellant’s return to any former custody, or for granting bail to the appellant, as the Court or judge thinks fit, for the time during which such stay has been directed.”

The appellant did not make any submission about the viability of the Crown’s foreshadowed application to reopen the sentence on count 2 but he did not oppose a stay to facilitate the timely and orderly disposition of such an application. The appellant submitted that the Court of Appeal did not have jurisdiction to hear such an application. The appellant argued that s 188(1) authorised only a reopening by the court that imposed the sentence. Implicit in this argument was the proposition that for the purposes of s 188 the Court of Appeal is a different “court” from the Trial Division notwithstanding that each is a division of the Supreme Court.

In circumstances identified in s 188(1), s 188 empowers “the court” which has imposed a sentence to reopen the proceeding and resentence the offender. The word “court” and the expression “the court” are not defined for the purposes of Part 11 of the Penalties and Sentences Act, in which s 188 appears. Section 188(1) provides that “the court” may reopen a sentence imposed by it whether or not it is “differently constituted”. The appellant cited R v McQuire,²⁶ R v Dobie²⁷ and R v Thomas.²⁸ The first two decisions are not on point because they concerned attempts to reopen in the Court of Appeal a sentence imposed in the District Court. In Thomas reference was made to the question whether the Court of Appeal could reopen a sentence imposed in the Trial Division. In that case, there were no submissions about the construction of s 188, but McMurdo P referred to McQuire and observed that she would take a wider view of that section when the interests of justice required it. None of the cited cases decided that the Court of Appeal lacks jurisdiction to reopen a proceeding under s 188(1) where the sentence was imposed in the Trial Division. Assuming that the Court of Appeal has the power to reopen a sentence imposed in the Trial Division, it seems likely that in most cases it will be more appropriate and efficient from the perspective of the parties and the Court for any application to reopen a sentence imposed in the Trial Division to be heard in the Trial Division. It is not necessary to pursue that topic.

Section 668F(1) of the Criminal Code

For reasons which will appear, this is a case that falls for consideration under s 668F(1) of the Criminal Code.

The history of the legislation is relevant to the interpretation of s 668F(1).²⁹ Section 668F(1) was enacted by the Criminal Code Amendment Act 1913 (Qld). The Criminal Code Amendment Act was passed following the enactment in the United Kingdom of the Criminal Appeal Act 1907 (UK), which established the Court of Appeal and created a right of appeal in criminal cases.

In the United Kingdom, from 1836 until 1907 various bills had either been proposed or actually laid before one or other of the Houses of Parliament to create a right to appeal a conviction but with little success. It was well known that there had been, and would continue to be, wrongful convictions, even in capital cases. In 1848 an Act was passed³⁰ which established the Court of Crown Cases Reserved. That Act empowered a trial judge in a criminal trial to reserve a question of law for consideration by that Court, which sat as a bench of five puisne judges. The Court sat in public and had to give reasons for its decisions. The procedure was cumbersome. It required the preparation of a written special case. The finding of error would result in acquittal but no retrial could be ordered. Moreover, it lay in the discretion of the trial judge whether or not to refer a point of law. It was apprehended that the most incompetent, and intellectually dishonest, judges and magistrates might, by refusing to refer, protect their decisions against review. If the bench of five judges could not agree, it was necessary to assemble all the judges to consider the case.

When the Queensland Criminal Code was first enacted it provided for no right of appeal. There was provision for a procedure to review errors of law in a manner analogous to the procedure of the United Kingdom Court of Crown Cases Reserved. That jurisdiction continues to this day in s 668B of the Code. It is rarely invoked.

There had always been a second avenue by which to correct wrongful convictions. This was by the Royal Prerogative to grant pardons. By the middle of the nineteenth century this power was being exercised on the recommendation of the Home Office. Applications for review that took this route usually agitated errors of fact which could be demonstrated by reference to the evidence at trial or by means of new evidence placed before the Home Office. This meant that public servants within the Home Office, advising the Minister, were entrusted with the process. The results were frequently unsatisfactory and led to public disquiet.

The judges in England held a great objection to the creation of a Court of Criminal Appeal on the basis that the question of guilt was a matter for juries and not for judges. The judges, almost as a body, firmly rejected the propriety of any jurisdiction that gave judges power to review a jury’s conclusions of fact. This objection has also to be understood in the context of practical conditions at the time. Most prosecutions were private ones. It would have created a real burden upon private prosecutors to oblige them to shoulder the expense of an appeal after succeeding at trial and they might choose not to do so. A public prosecutor would not be established in England until the late 1800’s. In addition, there was a question who would fund an appellant’s case. A majority of judges and politicians opposed general legal aid for appellants. Also, trials were simpler and shorter and only took place after the allegations had been considered by a magistrate or coroner and a grand jury. For these reasons a trial was, in this sense, regarded as an appeal against these earlier conclusions.

At the time the only way to have a sentence reviewed was also by petition to the Home Secretary. The main impetus for the creation of a right of appeal was a perception that there was no consistency in the myriad single instances of sentences imposed by single judges. By 1892 there was, at least, a judicial consensus that there ought to be a right to appeal sentences. However, there was disagreement about whether an appellate court should have a power to raise sentences as well as to lower them. A power to raise sentences offended judicial and professional sensitivity about double jeopardy but it was necessary if consistency in sentences was to be achieved.

An Act to establish a Court of Criminal Appeal was finally passed in the United Kingdom in 1907. It created a right of appeal on questions of law. It provided for appeals by leave on questions of fact or mixed questions of law and fact. There was no power to order a retrial. The only orders that could be made were to affirm a conviction, to set it aside or to modify it. The court could confirm, reduce or increase a sentence. The Crown could not appeal against an acquittal or against a sentence. The prerogative of mercy was expressly preserved.

This Act was replicated in New South Wales in 1912, in Queensland in 1913 and in Victoria in 1914.

The 1913 Act introduced ss 668A to 668G into the Criminal Code. A power to order a retrial was conferred by s 669. Section 671B conferred power on the Court to require the attendance of witnesses and the production of evidence in aid of an appeal if necessary. The old process of reserving a case by way of case stated was preserved in s 668B and the power was to be exercised by the newly created Court of Criminal Appeal.

The Act provided for only four possible grounds upon which an appeal could be allowed. These were, and still are:

The verdict of the jury is unreasonable;

The verdict of the jury cannot be supported having regard to the evidence;

The judgment of the trial court should be set aside on the ground of a wrong decision on a question of law;

On “any ground whatsoever” there has been a miscarriage of justice.

The new appellate procedure gave the Court of Criminal Appeal flexibility in dealing with the result of appeals. Indeed, once a general right of appeal was admitted, the multifarious circumstances in which such a right might be exercised, and the many possible outcomes of an appeal were immediately appreciated and had to be accommodated.

Now the Court could order a retrial, either of its own motion or on the application of a party. What is more, despite an appellant’s demonstration that there had been an error, the appeal might nevertheless be dismissed if the Court was of the view that “no substantial miscarriage of justice has actually occurred”.³¹

It was also apprehended that there would be cases in which an appellant would succeed upon an appeal against a conviction but was nevertheless, on the evidence at trial, plainly guilty of some other, lesser, offence proved by that evidence but of which he or she had not been convicted.

There could be cases in which, upon the Court’s examination of a sentence at the instigation of an offender who has appealed, it appeared that far from being too harsh, the sentence was too lenient. There would be cases in which a special verdict was delivered by a jury but in respect of which the trial judge has reached a wrong conclusion as to the result mandated by law.

Finally, and this is the possibility with which this present appeal is concerned, there could be cases in which an appellant has been convicted and sentenced on a number of charges on the one indictment and in which one conviction is set aside while the other convictions have been affirmed or, perhaps, have not been challenged at all. In many such instances the sentence or sentences imposed at first instance will reflect the totality of the criminality. The excision of any single conviction might have the effect that the sentence or sentences, in the result, are too lenient or too severe.

All of these different possibilities were the subject of separate provisions in the Act. The primary position about the outcome of an appeal against conviction is contained in s 668E(2):

“(2) Subject to the special provisions of this chapter, the Court shall, if it allows an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.”

For the case of a successful appeal in which, on the evidence, there is some other offence of which the appellant might have been found guilty, s 668F(2) provides:

“(2) Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the Court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.”

Several features of s 668F(2) should be noticed. First, the section is premised upon there having been an appeal against a particular count on an indictment.

Second, there must be “some other offence” of which the appellant could have been found guilty on that indictment. Manslaughter as an alternative to murder and attempted rape as an alternative to rape are examples. This simply involves a legal question about alternative counts open on the facts.

Third, the section limits the scope of the Court’s factual inquiry under the jurisdiction which the sub-section confers. The Court is obliged to examine “the finding of the jury” to determine whether that finding makes it apparent to the Court that “the jury must have been satisfied of facts which proved the appellant guilty of that other offence”. The inquiry is, therefore, into the facts about which, it can be inferred from the actual guilty verdict, the jury must have been satisfied on the evidence at trial. The Court, in performing its task, is required to consider the elements of the count the subject of the successful appeal, the elements of the “other offence” to which s 668F(2) refers, the jury’s verdict, the evidence that must have supported that verdict, and the necessary findings implicit in the verdict. Upon that examination, the Court must consider whether the inferred findings of fact by the jury upon the evidence led at trial support a finding of guilt of the “other offence”. If those facts that had necessarily been found support a conclusion of guilt of the “other offence” the Court has a discretion to substitute a verdict of guilty for that offence.

The section is remarkable because it confers power upon the Court to interfere with a jury’s verdict not merely by setting aside a jury’s verdict, something that even the Court of Crown Cases Reserved used to do; it actually arrives at its own verdict about a different offence. The significance of this interference with the entrenched constitutional monopoly of a jury as finder of fact is justified by the pre-condition that it is the jury’s own findings, inferred from its verdict under appeal, that support the substituted verdict.

It is significant that the appellant’s guilt of such an alternative offence need not have been the subject of issue joined between the parties to the appeal. Often an appellant convicted of murder will expressly advocate for a verdict of manslaughter; at times it is the prosecution which does so as an alternative. Sometimes each side avoids the alternative.³² The section does not require either party to raise the necessary issue before the section is engaged on appeal.

The power conferred by s 668F to substitute another sentence is different. No interference with a jury’s decision is required because a sentence is, after all, the result of a decision by a judge and not by a jury. However, there is this similarity with s 668F(2). A decision of the Court of Appeal to set aside a conviction may, if justice is to be done as between the appellant and the Crown, require an order setting aside a conviction and the substitution of another order – either a new conviction or a new sentence.

The distortion of a sentence after a successful appeal against conviction can arise in a number of ways. An appellant who has been convicted on a number of counts charged in the one indictment, and who has been sentenced accordingly, will have been sentenced upon the essential premise that the punishment takes into account all convictions. In this respect a sentence may comprehend various elements.

In a passage that has been approved by the High Court, the author of Principles of Sentencing³³ said:

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”

In Mill v The Queen³⁴ Wilson, Deane, Dawson, Toohey and Gaudron JJ said:

“Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.”

When multiple offences have been properly joined, the totality principle requires a court to consider the “overall criminality” manifested by all of the offences of which the offender has been convicted. This may require the court to impose, in respect of individual sentences for multiple offences, lower sentences than would have been imposed for a single offence so as to ensure that the total penalty is not excessive.³⁵

Whether a successful appeal on one count results in a sentence that is too lenient or one that is too severe on the remaining conviction depends on which conviction an appellate court quashes.

Further, there may be cases in which an accused is charged on the one indictment with counts that contain overlapping elements. Pearce v The Queen³⁶ was such a case. The appellant had been charged and convicted of two offences one of which was a charge of inflicting grievous bodily harm with intent. The other charge was one of breaking and entering a dwelling house and therein inflicting grievous bodily harm. He was sentenced to 12 years imprisonment on each charge to be served concurrently. McHugh, Hayne and Callinan JJ observed that to the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of elements that are common to each offence.³⁷ Their Honours emphasised that a judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality.³⁸ In that particular appeal, their Honours concluded that the sentences on the two counts were flawed because the same sentence had been passed on each count with the result that they doubly punished the appellant for a single act, the infliction of grievous bodily harm.

Finally, there are many cases in which there is a principal offence, such as trafficking, in which the other offences are really particulars or instances of crimes committed in prosecution of the principal offence. In such cases it is right to impose a sentence on the principal offence that takes into account all offences and to impose no further punishment on the remaining convictions so as not to breach the prohibition in s 16 of the Criminal Code against a person being twice punished for the same act or omission.³⁹ The present was such a case.

Each of these kinds of cases contains common features. First, an appellant has succeeded in persuading the Court to set aside a conviction on one (or more) of a number of counts. Second, the sentence that was imposed at trial for the convictions that remain were premised upon the validity of all of the convictions including the conviction that has been set aside. Third, the result of the quashing of a conviction is that the sentence becomes one that would not have been imposed.

It will be observed that the conditions that may give rise to an unjust sentence of this kind do not require that there has been an appeal against the other convictions or any appeal against sentence. They arise because an appeal that has been made has been successful and not because some other appeal was unsuccessful.

Like s 668F(2), s 668F(1) prescribes conditions that give rise to the occasion to exercise the discretion and also it defines the scope of the Court’s inquiry.

The section is premised, of course, upon there having been an appeal against conviction and a decision of the Court to set aside the conviction “on some count or part of the indictment”. The “part of the indictment” might have been a circumstance of aggravation. The case will therefore always be concerned with a single indictment. That element of the jurisdiction conferred by the section is important because it does two things. First, it excludes from the scope of the section cases such as Mill where an appellant has been convicted of counts on one indictment in Queensland and also on another indictment in another State but which still raise for consideration the principle of totality. Second, excluding cases of multiple indictments it engages the rules for joinder of counts on one indictment.

Section 567 of the Criminal Code provides:

“Joinder of charges

Except as otherwise expressly provided, an indictment must charge 1 offence only and not 2 or more offences.

Charges for more than 1 indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.

Where more than 1 offence is charged in the same indictment, each offence charged shall be set out in the indictment in a separate paragraph called a count and the several statements of the offences may be made in the same form as in other cases without any allegation of connection between the offences.

Counts shall be numbered consecutively.”

It follows that s 668F(1) will always involve offences that have a close relationship with each other and in respect of which the principle of totality will usually figure heavily on sentence. Even if separate trials are ordered under s 597A, the relationship between the counts that exists will not be broken.

It can therefore be seen that the section has been enacted to deal with the problem that is created when one or some but not all convictions, that are so related that they warrant a single indictment, are set aside on appeal and the sentence that remains thereby becomes anomalous. The elements that give rise to the exercise of the discretion conferred by the section are:

There has been an appeal against conviction;

A conviction or convictions are quashed;

It appears to the Court of Appeal that the appellant has been properly convicted on some other count or part of the indictment.

The existence of these factors confers upon the Court a jurisdiction to deal with the sentence passed at trial on the count or part of the indictment “on which the Court considers the appellant has been properly convicted”. The Court may:

Affirm the sentence passed at trial; or

Pass a more severe sentence than was passed at trial in substitution; or

Pass a less severe sentence than was passed at trial in substitution.

Provisions in other jurisdictions that are identical to s 668F(1) have been applied or considered in several cases. There have been five such cases in the United Kingdom one of which was a case from Ceylon decided by the Privy Council.

In R v Hervey & Goodwin⁴⁰ one of the appellants had been convicted on four counts in an indictment. A sentence of two years was passed on all offences, sometimes termed a “general sentence”. The Court of Criminal Appeal quashed one conviction and, although there had been no appeal against sentence, it reduced the sentence. The Chief Justice, Lord Hewart, observed that “It appears to us … it is within the power of the Court to treat his notice of appeal as if it had included an appeal against sentence”. Section 5(1) of the Criminal Appeal Act 1907 was not mentioned. This was, it appears, an ex tempore judgment.

In R v O'Grady⁴¹ the Court of Criminal Appeal considered an appeal in which the appellant had been convicted, relevantly, of two offences under the Treachery Act 1940 and several other, lesser, offences under other legislation involving aid to the enemy. The trial judge pronounced sentence of death in respect of the two principal offences and pronounced no sentence upon the other convictions. The Court of Criminal Appeal set aside the convictions upon the two offences that carried the death penalty. It dismissed appeals against certain of the other convictions. It is not clear if all convictions had been the subject of appeal. In any case, the Court observed that in respect of the convictions that had not been set aside “the verdicts of guilty stand”. The Court pronounced a sentence of 14 years upon these other convictions. This judgment was also evidently given ex tempore and there is no mention in it of the source of the power invoked to impose the substituted sentence.

The section was expressly considered for the first time by the Court of Criminal Appeal in R v Lovelock.⁴² The appellant had been convicted of attempted rape. He had pleaded guilty to a further count of indecent assault arising out of the same incident. He was sentenced to six years’ imprisonment on the attempted rape count and two years’ imprisonment (the maximum) on the other count to which he had pleaded guilty. The appellant appealed his conviction on the count of attempted rape. The Crown conceded that the evidence at trial was insufficient to support the charge and invited the Court to re-sentence the appellant on the indecent dealing charge pursuant to s 5(1) of the Criminal Appeal Act 1907.

The Lord Chief Justice, Lord Goddard, said, in a passage that should be quoted in full:

“I should think the reason why that subsection was included was this: Suppose there is an indictment containing three or four counts, and on the major count or the first count there is a conviction. The court passes a sentence of three years' or five years' imprisonment as the case may be. It then should proceed to pass some sentences which may be concurrent or consecutive, but are generally concurrent, upon the other counts; and the court may very easily think: “A sentence of five years' imprisonment has been passed on count 1, so it will be enough on counts 2 and 3 if we pass a sentence of three or five years' imprisonment concurrent on each count.” Then the case comes before the Court of Criminal Appeal and the court says: “What has happened here obliges us to quash the conviction on count 1, but we affirm the conviction on count 2.” It may be on the merits there is very little difference, if any, and perhaps no difference, between count 1 and count 2. The Court of Criminal Appeal, on quashing the conviction on count 1, will then have power to pass an adequate sentence for the conviction on count 2. That seems quite clearly to apply to this case. We have found that the appellant was not properly convicted on the first count which carried the sentence which Stable J. passed of six years' imprisonment, but he was properly convicted on the second count, which would normally carry only a maximum sentence of two years' imprisonment, but, as the necessary notices were served and convictions proved, it would in this case have been possible for the appellant to be sentenced to preventive detention, and that would be a sentence warranted in law. I have already said that a sentence of two years' imprisonment for a horrible offence of this sort was quite inadequate, and now what does one find? One finds that this is the fourth time he has been convicted of indecent assaults on little girls. He is therefore not safe to be at large with children, and the Court considers, therefore, it right to put into force the provisions of section 5 (1) of the Criminal Appeal Act, and we shall pass a sentence which could have been lawfully passed on the count of indecent assault, and that is a sentence of preventive detention.”

It is significant, for reasons that will appear, that a fresh sentence was substituted for the sentence that had been passed on a conviction in respect of which there had been no appeal against either conviction or sentence.

Section 6(1) of the Court of Criminal Appeal Ordinance of Ceylon was identical to s 668F(2). In The Queen v Edirimanasingham⁴³ the respondent had been convicted of one count of murder and two counts of attempted murder. He was sentenced to life imprisonment for the murder and no further sentences were passed on the other two convictions. He appealed his conviction on the murder conviction, but not the other convictions. The Court of Criminal Appeal of Ceylon set aside the murder conviction but decided that s 6(1) of the Court of Criminal Appeal Ordinance of Ceylon conferred no jurisdiction to pass sentences upon the convictions that had not been the subject of appeal. The Crown appealed to the Privy Council which decided that s 6(1) did confer jurisdiction. Their Lordships held that the sentence had been passed on the murder conviction only and had not been passed as a “general sentence” on all offences. The respondent argued that s 6(1) could not apply when no sentence had been passed. It was put that the section was not apt to fill the omission of a sentencing judge. That submission had been accepted by the Court of Appeal but was rejected by the Privy Council. Lord Tucker, who delivered the judgment, said:

“Their Lordships, with respect, feel unable to accept this interpretation of the section. It is in terms dealing with a case where an appellant has not been properly convicted on some charge or part of an indictment. This applies to count 1 in the present case. The conviction and sentence thereon no longer stand, but the court is empowered to substitute for that which has disappeared such sentence as may be warranted in law by the verdict on the charge or part of the indictment on which the appellant has been properly convicted. This, in their Lordships’ view, can only mean that in place of the sentence that has been quashed the court can pass the sentence appropriate to the convictions on the remaining counts on which the appellant has been convicted but not sentenced. The section refers to “the sentence passed on the appellant at the trial”. Where the court affirms such sentence the application of the subsection may be restricted to cases where there has been a general sentence, but where the sentence passed on the appellant at the trial – in this case rigorous imprisonment for life – has been quashed, the words of the subsection in their ordinary and natural meaning appear to their Lordships to confer power on the Court of Criminal Appeal to substitute a proper sentence for that which has been quashed, which can only be done by passing sentence on the remaining good counts. This was the course adopted in O'Grady’s case in this country and their Lordships see no reason to suppose that this was done per incuriam.” (Footnote omitted)

This was, therefore, a case of the simplest kind, in which a successful appeal in respect of a conviction upon a single count in an indictment was successful, leaving intact convictions for serious offences that had not been challenged in any way and in respect of which no sentence had been passed. It should be remarked that in Queensland, the definition of “sentence” in s 668 for the purpose of Chapter 67 (which concerns appeals) was significantly broadened in 1989 so that it would include cases in which, after conviction, the court orders that no sentence be imposed.⁴⁴

In R v Craig⁴⁵ the appellant had been convicted on four counts and was sentenced to five years, three years, nine months and nine months on each count respectively. He appealed against his conviction on one of the counts only but appealed against his sentence on every count. The Court of Appeal allowed his appeal against conviction and substituted fresh sentences on the remaining counts in reliance upon s 5(1) of the Criminal Appeal Act 1907*.* Lord Parker CJ expressly relied upon that section as conferring jurisdiction upon the Court to “put up the sentence on count 4 against which there is no appeal and which stands.”⁴⁶ No reliance was placed upon the fact that the appellant happened to have appealed against the sentences.

In Australia the equivalent provision has been considered four times.

In Ryan v The Queen⁴⁷ the High Court considered s 569(1) of the Crimes Act 1958 (Vic) which was in materially identical terms to the Queensland provision. The appellant had been convicted on one count of trafficking in heroin and four counts of handling stolen goods. He was sentenced to four years imprisonment on the trafficking count and six months imprisonment on each of the handling counts. The sentences on two of the handling counts were made cumulative on each other and cumulative on the trafficking count. The Court of Criminal Appeal of Victoria set aside the trafficking conviction and, acting under s 569(1), resentenced the appellant to 18 months imprisonment on the handling charges.

The High Court allowed the appeal unanimously but for differing reasons.

Wilson J held that the section did not permit an appellate court to vary a sentence “in respect of which there was no appeal, and is not itself the subject of appeal” because “there is no occasion to consider its adequacy with a view either to affirmation or substitution.”⁴⁸ His Honour was of the view that it was not “open to say that the sentence which is imposed directly on the conviction which is later quashed on appeal contains any element of survival because of some relationship to the remaining counts”.⁴⁹ His Honour said that it was only “that sentence”, that is to say the sentence in respect of the conviction that has been quashed, which the section “says can be affirmed or for which another sentence can be substituted”.⁵⁰

In our respectful opinion these dicta present difficulties in application. First, the section expressly raises for examination the sentence that “may be warranted in law by the verdict on the count or part of the indictment on which the Court considers that the appellant has been properly convicted”. There may be no occasion to consider the adequacy of the sentence passed on the conviction that has been set aside if the sentence was passed principally on a conviction that stands. Consequently, it is difficult to understand how to apply Wilson J’s reasoning when the relevant sentence, the adequacy of which is in question, is the sentence passed on the conviction that has not been quashed.

Second, the text suggests that it is the section itself that confers jurisdiction to examine the adequacy of the sentence or sentences that have been left untouched by a quashing of a conviction. The jurisdiction is one to examine the adequacy of any remaining sentences passed on convictions on counts on the same indictment if the pre-conditions are satisfied. Indeed, if an appellant has appealed against a sentence upon a conviction that has not been set aside, then, at least in Queensland, s 668E(3) confers power on the Court to increase the sentence and s 668F(1) is unnecessary. The section need not have been enacted if its operation was to be limited to cases in which there had been an appeal against sentence by a convicted person. The section is premised upon there being a lack of power otherwise to deal with such sentences. Such cases would arise particularly if a convicted person, as the appellant did in this case, chooses to leave a “sentence” that carries no burden at all undisturbed.

In the same case Aickin J observed that in Lovelock⁵¹ the English Court of Appeal had merely assumed that the section applied to a case in which there had been no appeal against conviction or sentence in respect of the surviving convictions. His Honour was of the opinion that a court before which the relevant other convictions or sentences had not been appealed would not “have before it for consideration the convictions”. As a result, his Honour was “unable to see how it can appear to that Court that an appellant was properly convicted when the propriety of the conviction is not before it”.⁵² His Honour added that the fact the accused has not appealed “is not a sufficient basis for an assumption that he was ‘properly convicted’.”⁵³ The result is that the section would only apply if there was an appeal against conviction in respect of more than one count and the appeal is only partly successful. It would therefore not apply where the appellant chooses not to appeal against convictions in respect of which there was no further sentence, as he did in the present appeal.

Aickin J said that the remedy for any such outcome lay in the hands of the Crown, which could appeal against sentence on such counts.

This reasoning also presents difficulties. Just as s 668F(2) obliges the Court to inquire into the “finding of the jury” in order to decide whether the appellant might have been found guilty of another offence, so too s 668F(1) obliges the Court to consider whether it is satisfied that there are other counts upon which the appellant has been properly convicted. The text of the provision itself does not require that a quite different jurisdiction by way of appeal against sentence or conviction by a convicted person or by way of an Attorney-General’s appeal against sentence be invoked as a pre-condition. If there is no appeal then the record of the Supreme Court itself, in which the conviction is recorded, is incontrovertible evidence that the conviction was and remains a proper conviction. The recording of a conviction is a significant thing. It may be relied upon to support a plea of autrefois convict.⁵⁴ The mere production of a certificate of such a conviction purportedly signed by the officer with custody of the Court’s records is proof of the conviction.⁵⁵ Even a pardon does not expunge a conviction, only the sentence,⁵⁶ so that an appeal against conviction can be maintained even after a pardon has been granted.⁵⁷

But most importantly, the hallmark of a court of record is that its formal record is infallible.⁵⁸ The consequence of that feature of such a court and its record, a record that contains final orders and convictions, is that, subject to any right of appeal, no such order or conviction can even be questioned. In Bailey v Marinoff⁵⁹ Barwick CJ said:

“Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.”

It is sometimes correct to say that a person is convicted upon a jury’s verdict of guilty.⁶⁰ However, such a “conviction” has no effect until judgment is pronounced upon it by the Court.⁶¹ Subject only to appeal, a court record of conviction should, eo ipso, be conclusive that the person convicted has been “properly convicted” within the meaning of s 668F(1).

It is also difficult to apply the suggested remedy of an Attorney‑General’s appeal. The position of the Attorney‑General, in appealing an adequate sentence upon the footing that a possible outcome of a convicted person’s appeal might render the sentence inadequate, would be a difficult one for her to justify. Such an appeal would be hypothetical; it would be based upon a contingency that might not eventuate. In addition, it should not be forgotten that when the section was first enacted the prosecution had no right to appeal against sentence. Consequently, it is difficult to see that this consideration, which did not exist in 1913, can be an aid to the interpretation of the provision.

Stephen J, in Ryan, considered that the result in Lovelock⁶² had been justifiable because the conviction on the count of indecent dealing, while not the subject of any appeal, was a conviction that arose out of the same incident as the attempted rape that was the subject of the appeal. For that reason, the Court in Lovelock was readily able to and did conclude that Lovelock “was properly convicted on the second count”.⁶³

In Ryan all the judges agreed that the counts had been improperly joined in a single indictment. Stephen J concluded that because of misjoinder the Court of Appeal was “never placed in a position in which to conclude … that “it appears to the Full Court that (the appellant) … has been properly convicted” on those counts”.⁶⁴ Where the counts are properly joined, it was his Honour’s preferred view that the mere absence of appeal on some counts would not, in a case like Lovelock in which the offences arose out of the same incident, preclude an appellate court satisfying itself that the un-appealed convictions were proper.⁶⁵ With respect, that must be right for the section is premised, for its operation, upon the existence of a nexus between the charges that permits them to be joined on one indictment.

Brennan J was of the opinion that the section had no application to a case in which multiple counts had wrongly been joined in the one indictment. His Honour then explained the operation of the section in two lengthy passages which must be quoted in full because of the approval given to them in a later case. Brennan J said:

“Where there has been a regular joinder, the gravest conduct may be common to two or more of the convictions upon the joined counts. Then, if the trial judge has imposed a penalty appropriate to the gravity of that conduct in respect of one conviction only – as frequently happens – and only that conviction were quashed, it would be anomalous to allow the gravest conduct to escape condign punishment. Or again, if there be a series of offences of the same character and the trial judge imposes an appropriate penalty in respect of one conviction which reflects the seriousness of the course of conduct of which that offence is a part, he may not be concerned to impose as severe a penalty in respect of other convictions which have been regularly joined. That also frequently happens, and it would be anomalous to allow the quashing of the conviction in respect of which the heavier penalty was imposed to result in leaving the course of criminal conduct without condign punishment. In these classes of cases it is appropriate to exercise the powers conferred by s 569(1).”⁶⁶

A little later his Honour said:

“It was further submitted that it could not “appear to the Full Court that an appellant … has been properly convicted” on some count in the indictment unless the propriety of the conviction had been canvassed in argument before the Full Court. Though the Full Court, in determining whether an order should be made under s 569(1), is at liberty to inquire into the merits of the convictions on those counts in respect of which there is no appeal, the Full Court is entitled to accept an unchallenged conviction as sufficient ground for satisfaction that an appellant “has been properly convicted on some other count” in the indictment before the Court. In proceedings upon that indictment, a conviction is conclusive of the issues joined between the Crown and the accused except for the purposes of appeal against that conviction. Moreover, where a quashed conviction is founded upon the same facts as a conviction which stands or where it was a conviction for one of a series of offences of the same or a similar character, the Full Court would frequently acquire some knowledge of the merits of the convictions which stand.”⁶⁷

The main point that must be drawn from these dicta of Brennan J, which echo those of Stephen J and Lord Goddard in Lovelock, is that the operation of the section does not depend upon the fact of the convicted person’s choice about which conviction to appeal. Rather, the section is engaged when counts have been properly joined as a matter of law on a single indictment.

Gibbs CJ agreed with Wilson J.

There is no single ratio that is discernible from this case. What does emerge without any doubt is that the section cannot apply, or, at least, the discretion under it ought not be exercised, in cases in which the counts under consideration have been wrongly joined.

The issue came again before the Court of Appeal of Victoria in R v Gibb.⁶⁸ In that case the appellant had been convicted on two groups of counts on the same indictment. He was sentenced to an effective term of eight years on the first group and two years on the second group, concurrent with each other but cumulative on the first group. A non-parole period of eight years was fixed. He appealed against his convictions and sentences on the second group only and the appeal succeeded. The question was whether s 569(1) of the Crimes Act 1958 (Vic) could be applied to fix a new parole date for the first group of offences that had not been the subject of any appeal. Relying upon Ryan, the Court concluded that there was no power under the section to substitute head sentences under the remaining counts because there had been no appeal in respect of those convictions.⁶⁹ However, the Court concluded that a new parole period could be set because the parole period set in respect of the remaining convictions that had not been appealed “did not relate exclusively to the applicant’s convictions on the first group of counts”.⁷⁰

The operation of the section arose again in Victoria in R v RH McL.⁷¹ The appellant had been convicted on 16 counts of sexual offences against two complainants. He was sentenced on all counts to varying terms of imprisonment, some of which were concurrent and some of which were cumulative. The effective sentence was one of 12 years with a non-parole period of 10 years. The appellant was successful in his appeal on four convictions. A new trial was ordered on those counts. The other convictions were affirmed. The appellant had appealed his sentences on those convictions but abandoned those appeals when the Court of Appeal intimated that the Court might be minded to increase them.⁷²

The appellant accepted that the counts had been properly joined but argued that there was not a “sufficient nexus” between them to allow the Court to undertake the exercise required by s 569(1) of the Victorian Act.

Batt JA, with whom Phillips CJ and Kenny JA agreed, was of the view that the ascertainment of the ratio in Ryan⁷³ was “not without its difficulties”.⁷⁴ His Honour observed that one matter that was critical to each judgment in Ryan was that there had been no appeal against conviction on the remaining counts. In McL there had been such appeals and, what is more, the counts had been joined properly. Consequently, his Honour was of the view that for these reasons the requirements of the section had been engaged. The unsuccessful appeals against conviction placed the Court in a position in which it could determine the propriety of the conviction on the “other count”. Accordingly, the Court substituted new sentences on the surviving convictions in reliance upon the section.

The case came to the High Court⁷⁵ where the appellant argued again that an appeal against sentence was a pre-condition to the exercise of discretion under the section.

Gleeson CJ, Gaudron and Callinan JJ said that the sentencing judge had adopted one of the sentencing approaches countenanced by the High Court in Mill, namely to lower individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed.⁷⁶ This meant that the quashing of four of the convictions on appeal rendered the remaining sentences inadequate. Their Honours cited with approval the two passages from the reasons of Brennan J in Ryan⁷⁷ quoted above. They agreed with the appellant’s submission that, before the section could be invoked, there had to be a connection between the counts on which an appellant had been convicted. However, their Honours said that that requirement would be satisfied by the proper joinder of counts on the indictment because such joinder was only permissible if there was a sufficient connection between the offences.⁷⁸ Their Honours said that when a judge, sentencing a person for a number of convictions, gives effect to the principle of totality partly by imposing individual sentences which were less than they would otherwise have been, then that was the “very kind of case which may call for an exercise of the power to re-sentence under s 569(1).”⁷⁹ Their Honours’ approval of Brennan J’s dictum, which contained an express rejection of the argument that without an appeal against the convictions which survived the section could not be invoked,⁸⁰ means that their Honours decided that neither an appeal against conviction nor an appeal against sentence was a pre-condition required by the section.

McHugh, Gummow and Hayne JJ were of the view that the section applied only when there had been “a proper joinder of the counts in the indictment, and appeals against one or more convictions have succeeded and appeals against one or more convictions have failed, so that the Court of Appeal could satisfy itself that the appellant had been “properly convicted” on the latter counts”.⁸¹

Kirby J was of the view that the operation of the section was not limited to cases in which there had been an appeal against sentence on the remaining convictions. His Honour said:

“At least in a case such as the present where it is possible for the appellate court to reach a conclusion, within the issues before it, as to those counts or parts of a presentment on which “the appellant has been properly convicted”, its power and authority to affirm the sentence passed on the appellant at trial or pass another sentence in substitution, is that stated in s 569(1) of the Crimes Act. It is a large power.”⁸²

His Honour did not advert to the question whether a relevant appeal against conviction was a pre-requisite before the section could be engaged.

It is as difficult to extract a ratio from McL as it is from Ryan. However, this much can be said. By their express approval of the dicta of Brennan J in Ryan, Gleeson CJ, Gaudron and Callinan JJ held that the exercise of the power did not depend upon the convicted person having appealed the other convictions or sentences. Kirby J expressly rejected the proposition that the power was conditioned upon there being an appeal against sentence whether by the Crown or the convicted person.⁸³ His Honour did not say that the jurisdiction conferred by the section depended upon the convicted person having appealed against the “other counts”. McHugh, Gummow and Hayne JJ concluded that the section would not be engaged unless there were appeals against conviction on the “other counts”.

All members of the Court appear to have concluded that an appeal against sentence was not a condition precedent to the engagement of the section. However, there was no majority view whether an appeal against conviction in respect of “other counts” was a necessary pre-condition for the engagement of the section to enable the Court to be in a position to determine its satisfaction whether the appellant was “properly convicted” on such counts.

Having the benefit of the decision of the High Court in McL, we would respectfully disagree with the analysis of Ryan that commended itself to the Victorian Court of Appeal in Gibb. We are of the view that that reasoning is wrong and should not be followed.

This is the first occasion in Australia, of which we are aware, in which the operation of the section has to be considered in which there has been a successful appeal against conviction in a case in which there were other counts, properly joined on the same indictment, which have not themselves been the subject of appeal against conviction or sentence. In those circumstances, the state of the authorities to which we have referred is that there is no ratio decidendi to be drawn from either Ryan or McL. We also bear in mind that the differing observations and conclusions in those cases were not the culmination of long-established authority supporting a single view.⁸⁴

Section 668F(1) is part of a set of provisions contained in a section of the Act enacted for the evident purpose of accommodating some of the possible consequences of a successful appeal by a convicted person. Section 668F(2) creates a jurisdiction under which the Court of Appeal may convict an appellant of an offence of which, in the Court’s view, the jury might have convicted. The section does not require any formal application to be made by anyone although, obviously, the power would not be invoked unless either the prosecution raised the point on notice or the Court itself gave the appellant notice of its potential applicability. The significant point is that the engagement of the section is not premised upon any election by an appellant and a decision is based upon material in the Court’s hands.

In the same way, s 668F(3) empowers the Court to act upon its conclusion that a trial court has misapprehended the legal effect of a special verdict.

Section 668F(1) aims at a similar set of problems, but in respect of sentences rather than convictions. The section does not in its terms provide that those other convictions or sentences must themselves have been agitated by way of appeal. Often they will not have been and could not properly have been. The occasion for intervention arises because, as a result of the quashing of a conviction, the remaining sentences are neither “proper” nor “warranted by law” and require “substitution”. This may be because of undue severity or undue leniency. The requirement that the Court “considers” that the appellant has been “properly convicted” is automatically satisfied in the result either by the dismissal of a convicted person’s appeal against a relevant conviction, if there was one, or by the appellant’s decision not to challenge it. The Court will be in a position to determine the propriety and legality of the remaining sentences in the way it always does – with the assistance of the parties by reference to the evidence at trial or sentence that will be before the Court of Appeal. That material before the Court will of necessity relate to both the sentence on the conviction that has been set aside and the sentence on any convictions that remain, for all the convictions had been in respect of counts on the same indictment dealt with together, or at least on the same indictment even if the trials under it had been conducted separately.

A requirement for there to be an extant, unsuccessful, appeal against conviction or sentence would add nothing to the record in such a case nor to the Court’s ability to determine whether the discretion should be exercised and how it should be exercised.

This construction avoids the consequences that would follow in the many instances in which a sentencing judge in Queensland imposes a single sentence on one conviction and none on any others if a just outcome for both parties on appeal depends upon a convicted person’s (perhaps tactical) election to appeal or not to appeal. It also accords primacy to a record of a conviction.

This construction of the section is reinforced by the content of the Criminal Appeal Act 1968 (UK) which replaced the 1907 statute. A fresh provision, s 4, replaced the original s 5(1) and now provides, relevantly:

“(1) This section applies where –

two or more related sentences are passed,

the Court of Appeal allow an appeal against conviction in respect of one or more of the offences for which the sentences were passed (“the related offences”), but

the appellant remains convicted of one or more of those offences.

… the Court may in respect of any related offence of which the appellant remains convicted pass such sentence, in substitution for any sentence passed thereon at the trial, as they think proper and is authorised by law.

…

For the purposes of subsection (1)(a), two or more sentences are related if –

they are passed on the same day,

they are passed on different days but the court in passing any one of them states that it is treating that one together with the other or others as substantially one sentence, or

they are passed on different days but in respect of counts on the same indictment.”

The plain meaning of the United Kingdom provision in its current form accords with the interpretation of the Australian analogue preferred by Brennan J, Gleeson CJ, Gaudron and Callinan JJ. It also accords with the construction we prefer and which we consider accords with the intent of the section as a whole and its natural language. The United Kingdom provision did not appear to involve a shift in the scope of the operation of the section except for the removal of the confinement of its operation to cases relating to a single indictment. The core element remains the nexus between counts.

The present is a perfect example of a case for the application of the provision. The appellant was convicted on one count of trafficking in a dangerous drug, another count of unlawful possession of a dangerous drug with a circumstance of aggravation and a count of possession of a vehicle used in connection with the commission of a crime. This is a common trilogy of charges. The trial judge sentenced him to four years and six months imprisonment on the trafficking count, suspending that order after two years with an operational period of four years and six months. His Honour imposed no punishment on the two other counts because, in his view, those offences were subsumed in the trafficking offence. This is a common mode of sentencing in such cases.

The result of the appellant’s success on his appeal leaves standing his conviction on count 2, against which, having regard to some of the dicta in the authorities, he understandably chose neither to appeal his conviction nor his sentence. Yet if s 668F(1) is inapplicable, the result would be that the appellant would suffer no punishment for the commission of that other serious offence. In our opinion the section was enacted to address this very mischief. Absent this provision, that might then be the result in many appeals because of the prosecution’s normal practice of joinder of charges and the Court’s practice of sentencing offenders according to law, including the application of the principle of totality and the avoidance of double punishment. The result would be that a common, simple and sensible approach to totality sentencing (in a process that has become very complicated) will be rendered unusable because of the effect of a rarely invoked provision about the result of some appeals.

Sentence

The parties made submissions about the sentence that should be imposed on count 2 if, as we would hold, the Court has and should exercise jurisdiction to re-sentence upon that count.

This was a serious possession offence having regard to the amount of pure methylamphetamine - 176.6 grams (9.8 per cent of the 1,812 grams of substance in the vehicle). That amount very substantially exceeds the quantity (2.0 grams) of that dangerous drug in Schedule 3 of the Drugs Misuse Regulation 1987, for which the maximum penalty is 25 years imprisonment for a person, like the appellant, who is not found to be drug dependant. The trial judge found that on the jury’s verdict the appellant knew the drugs were in the car. The appellant submitted that the evidence did not demonstrate that the appellant knew the actual amount of drug secreted in the vehicle. As has already been mentioned, the evidence plainly justified the conclusion that the appellant knew at least that a valuable quantity of methylamphetamine was in the car. It also must be accepted, as the respondent submitted without contradiction, that there was a commercial aspect to the appellant’s possession of the drug.

Upon the parties’ arguments an issue arises between them whether Moran was a co‑offender, such as to make considerations of parity with his sentence relevant, or whether the appellant and Moran were co-offenders only in the extended sense discussed in R v Illin,⁸⁵ such as to render Moran’s sentence one that must be taken into account as a guide or yardstick against which to examine a sentence proposed for the appellant. On either view, the appellant’s term of imprisonment should be significantly shorter than the term of six years imprisonment imposed upon Moran for his more serious offence of trafficking. Because Moran was convicted on his own plea of guilty his sentence to that term with parole eligibility after two years otherwise supplies only limited guidance here.

The appellant was 23 years old when he committed the offence and 28 years old when he was sentenced by the trial judge. He is now 29. He has a minor criminal history involving only offences for which he was fined, with no convictions recorded. The trial judge found that the appellant’s weakness allowed him to be inveigled by his co‑offender, who was roughly the same age but had considerably more experience in committing crimes. Also relevant are the circumstances accepted by the trial judge that the appellant had made many admissions through his counsel, he had not contested many of the facts, and in those ways he had materially assisted in the disposition of the trial. The trial judge accepted that the appellant was not responsible for the significant delay in a matter proceeding to trial, which had caused the appellant some vexation and perhaps hardship and the appellant also had shown the capacity to rehabilitate himself. The trial judge referred to the appellant’s efforts over the years since the events to demonstrate his usefulness as a citizen and a productive person, his reasonable work history, his recent hard work and significant achievements at work, and the common sense reflected in his instructions to counsel that enabled the trial to be shorter than otherwise might have been the case.

The appellant submitted that, having regard to his limited culpability, his youth, prospects of rehabilitation, progress towards rehabilitation during the long delay before trial that was not of his making, and his minor criminal history and cooperation at trial, the sentence of two and a half years imprisonment suspended after nine months imposed on appeal in R v Hesketh; Ex parte Attorney-General (Qld)⁸⁶ was an appropriate yardstick to take into account in the appellant’s sentence on count 2. That was a very different case. Whilst Hesketh was significantly older than the appellant (she was 39 years at sentence) and had a relevant criminal record, the total weight of pure drug (57.347 grams) was much less than the amount possessed by the appellant and she had more significant mitigating factors - she was an addict but had made some progress in rehabilitating herself, she had the sole care of a five year old child and was also caring for her elderly and frail mother, and she entered an early plea of guilty. The Court considered that a sentence as high as four years imprisonment might be open in the circumstances but that mitigating factors justified keeping the custodial sentence to a minimum. Such guidance as may be obtained from that case suggests that the appellant’s sentence should be more severe.

The respondent referred to R v Duong,⁸⁷ and R v Phillips.⁸⁸ In Duong the Court refused an application for leave to appeal against a sentence of nine years imprisonment, with statutory parole eligibility at the midpoint of the term. That offender was convicted after a trial of one count of possession in excess of 200 grams (204.391 grams) of methylamphetamine and one count of supplying the same drug. A combination of many factors illustrate the greater seriousness of that offending: that offender was older (he was aged 29) when he offended, he had a serious criminal history (including imprisonment for six years with parole eligibility after two years for offences that included armed robbery, unlawful wounding and deprivation of liberty), although the quantity of the drug was similar to the quantity in this case it exceeded 200 grams and the substance containing the drug was of a much higher purity, the sentencing judge found that the offender was not a low level courier, and he was found to have given dishonest evidence which reflected upon his lack of remorse and prospects for rehabilitation.

In Phillips, the court refused an application for leave to appeal against a sentence of five years imprisonment for possession of methylamphetamine, with lesser, concurrent sentences for three other possession counts. Parole eligibility was ordered at the one third mark (reflecting that offender’s timely pleas of guilty). The total amount of methylamphetamine possessed by that offender was less than 25 grams, but that comprised quantities possessed on separate occasions. After he had been arrested and released on bail for possession of less than four grams of pure methylamphetamine within a substance weighing about six grams, together with 147 grams of cannabis (also found were clipseal bags and $11,000 cash), the offender was arrested and released on bail. Three months later he was found to be in possession of 20.853 grams of methylamphetamine (within about 27 grams of substance), together with a small amount of cannabis, nearly $20,000 cash, and a glass pipe. The methylamphetamine was destined for commercial exploitation. As the respondent pointed out, that offender was drug-dependant, which is not the case in relation to the appellant, and the quantity of the drugs in Phillips was much less than in the present matter. More serious circumstances in Phillips were that the offender was more mature (he was aged 40 when he offended), he offended whilst on bail, he had a very lengthy criminal history for like offending, relatively lenient sentences designed for his rehabilitation in the past had been ineffective, and he committed another offence after the subject offences. That offender lacked the mitigating factors found by the trial judge in this case.

The term of four and a half years’ imprisonment imposed by the trial judge for the trafficking offence charged in count 1 falls away in consequence of the conviction on that count being set aside. That term is therefore not of any direct relevance in the present exercise, but the relative lenience of that term compared with the terms in cases such as Doung and Phillips reflects the trial judge’s favourable view of the variety of circumstances justifying mitigation of the appellant’s punishment. The trial judge was persuaded that although the appellant had pleaded not guilty, because of reasons of parity and factors to do with the appellant’s overall character, justice would be served if the appellant were required to serve less than one half of the term of imprisonment imposed. The trial judge accordingly suspended the sentence of four and a half years’ imprisonment after the appellant had served two years imprisonment. Adopting an analogous approach, in all of the circumstances the just sentence for the possession offence is four years’ imprisonment, suspended after 20 months for an operational period of four years.

Orders

The orders are:

Allow the appeal.

Set aside the convictions on counts 1 and 3 and quash the sentences on those counts.

Enter verdicts and judgments of acquittal on those counts.

Quash the sentence on count 2 and substitute a sentence of imprisonment for four years.

Order that the term of imprisonment on count 2 be suspended after serving a period of 20 months imprisonment, and the appellant must not commit another offence punishable by imprisonment within a period of four years if he is to avoid being dealt with for the suspended term of imprisonment.

Footnotes

1. See R v Roberts & Pearce [2012] QCA 82 at [170]-[171]; R v Beck [1990] 1 Qd R 30 at 38; R v Tabe [2003] QCA 356 at [36]. ↩

2. [2000] 2 Qd R 57. ↩

3. [2000] 2 Qd R 57 at 62 [14] (citations omitted). ↩

4. [2000] 2 Qd R 57 at 71-2 [44]. ↩

5. [2000] 2 Qd R 57 at 81 [82]. ↩

6. [2000] 2 Qd R 57 at 72 [45] (McMurdo P) and 78 [71] (Thomas JA). ↩

7. [2008] QCA 413 at [40]. ↩

8. Transcript 25 October 2016 at 2-4/45. ↩

9. Transcript 25 October 2016 at 2-5/5. ↩

10. Transcript 25 October 2016 at 2-68/35. ↩

11. Transcript 26 October 2016 at 1-25/45. ↩

12. Transcript 26 October 2016 at 1-26/30. ↩

13. Transcript 26 October 2016 at 1-27/25. ↩