Court of Appeal (Qld)|2015-05-01|Before: Chief Justice and Morrison JA and Dalton J, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Chief Justice and Morrison JA and Dalton J, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– POWERS OF APPELLATE COURT – TO ADMIT NEW EVIDENCE
– where
the applicant sought to rely upon four categories of new evidence –
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– POWERS OF APPELLATE COURT – TO ADMIT NEW EVIDENCE– wherethe applicant sought to rely upon four categories of new evidence –whether leave should be given to adduce newevidenceCRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLYEXCESSIVE ORINADEQUATE – where the applicant pled guilty to one count of unlawfullytrafficking in cocaine for a 12 monthperiod and was sentenced to 12 yearsimprisonment, with no discretion as to parole eligibility – where theapplicant pled guiltyto 14 counts of importing a marketable quantity of cocaineand one count of money-laundering and was sentenced to nine years imprisonmentfor each count with a five year non-parole period – where all sentencesimposed were concurrent – where the applicantconducted an elaboratebusiness importing cocaine and selling it domestically with a motive for profit
– where the applicant
submitted that the sentences imposed were akin to
double punishment – where the applicant submitted that the sentences
imposed
did not adequately reflect the principle of remorse and contrition
– where the applicant submitted that the primary judge should
have
expressly referred to the principle of ensuring consistency across Australia in
sentencing Commonwealth offences – where
the applicant submitted that the
primary judge did not adequately consider the applicant’s rehabilitation,
status as a model
prisoner, psychological issues or drug dependency –
whether the sentences imposed were manifestly excessive
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– GROUNDS FOR INTERFERENCE – JUDGE ACTED ON
WRONG PRINCIPLE/OTHER
MATTERS – where the applicant submitted that the primary judge erred in
receiving a submission on sentencing
range from the Crown – whether the
primary judge contravened statements made in Barbaro v The Queen [2014]
HCA 2
Corrective Services Act 2006 (Qld), s 182(1)
Crimes Act
1914 (Cth), s 4C
Penalties and Sentences Act 1992 (Qld), s
161A(a)(ii)
Barbaro v The Queen (2014) 88 ALJR 372
[2014] HCA 2,
cited
Lau v The Queen [2011] VSCA 324, cited
Matthews v The
Queen [2014] VSCA 291, cited
R v Campbell (2008) 73 NSWLR 272
[2008] NSWCCA 214, cited
R v Ly & Kyprianou [2008] QCA
149, cited
R v Maniadis [1997] 1 Qd R 593
[1996] QCA
242, cited
R v Markovski [2009] QCA
299, cited
R v Mirzaee [2004] NSWCCA 315, cited
R v
Mokoena [2009] 2 Qd R 351
[2009] QCA
36, cited
R v Patena [1996] QCA
152, cited
R v Peters, unreported, P Lyons J, SC No 788 of
2011 and SC No 98 of 2012, 19 April 2012, cited
R v Tesic,
unreported, Douglas J, SC No 125 of 2010 and SC No 1545 of 2009, 16 April
2010, cited
R v Tran (2007) 172 A Crim R 436
[2007] QCA
221, cited
R v Tricklebank [1994] 1 Qd R 330
[1993] QCA
268, cited
Ratten v The Queen (1974) 131 CLR 510
[1974] HCA 35,
cited
Judgment (166 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - TO ADMIT NEW EVIDENCE - where the applicant sought to rely upon four categories of new evidence - whether leave should be given to adduce new evidence
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where the applicant pled guilty to one count of unlawfully trafficking in cocaine for a 12 month period and was sentenced to 12 years imprisonment, with no discretion as to parole eligibility - where the applicant pled guilty to 14 counts of importing a marketable quantity of cocaine and one count of money-laundering and was sentenced to nine years imprisonment for each count with a five year non-parole period - where all sentences imposed were concurrent - where the applicant conducted an elaborate business importing cocaine and selling it domestically with a motive for profit - where the applicant submitted that the sentences imposed were akin to double punishment - where the applicant submitted that the sentences imposed did not adequately reflect the principle of remorse and contrition - where the applicant submitted that the primary judge should have expressly referred to the principle of ensuring consistency across Australia in sentencing Commonwealth offences - where the applicant submitted that the primary judge did not adequately consider the applicant's rehabilitation, status as a model prisoner, psychological issues or drug dependency - whether the sentences imposed were manifestly excessive
[3]
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE/OTHER MATTERS - where the applicant submitted that the primary judge erred in receiving a submission on sentencing range from the Crown - whether the primary judge contravened statements made in Barbaro v The Queen[2014] HCA 2
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, cited
[22]
Director of Public Prosecutions (Commonwealth) for the respondent
[23]
[1] THE CHIEF JUSTICE: The applicant applies for leave to:
[24]
1. adduce new evidence not before the sentencing judge; and
[25]
[2] I think both applications should be refused for substantially the same reasons given by Dalton J, but would like to add some brief remarks of my own.
[26]
[3] New evidence is admissible in an application for leave to appeal against sentence if it demonstrates that some other sentence is warranted by law.
[27]
[4] However, whether admission is granted is a question of discretion. The competing discretionary factors are wide ranging and their weight will depend on the circumstances of the case.
[28]
[5] Evidence available but deliberately withheld from the sentencing judge will generally not be received by an appellate court unless failure to do so would cause serious or gross injustice. Parties should not be entitled to rely on their own negligence, inattentiveness or tactical choices to effectively secure a re-sentencing on a whole new basis. Otherwise, the courts would experience a multiplication of proceedings, and the appellate jurisdiction would quickly become a forum for testing alternative case theories not advanced during the original sentencing determination.
[29]
[6] However, the failure of the applicant to understand the significance of the evidence at the time of a self-represented sentence proceeding is a factor militating in favour of the admission of the new evidence.
[30]
[7] The proposed new evidence is adequately described by Dalton J at [29] - [38]. I agree with the reasons of Dalton J in refusing leave to admit the affidavit of Shayne Albert White, the psychological report of Shelley Keane, and the letter of the applicant's prospective employer. However, I wish add some comments about the records of the Department of Corrective Services.
[31]
[8] The apparent purpose of the admission of the departmental records is to demonstrate that the applicant is a "model prisoner" and has taken steps towards rehabilitation. As this evidence arises as a result of conduct in prison, its existence necessarily post-dates the applicant's sentencing.
[32]
[9] There is a difference between evidence which is discovered, and that which comes into existence, after sentencing. There is little justification for admitting new evidence falling within the latter category for consideration. This is because the sentence is calculated on the factual matrix of the case accruing up until the time of the hearing. The sentencing judge cannot have erred by failing to contemplate all possible events which may converge following the rendering of sentence impacting on the rehabilitation of the applicant. In this respect, an accused is sentenced "once and for all" at the time of sentencing, and it cannot be disturbed based on post-sentencing events.
[33]
[10] As the reported behaviours signalling rehabilitation eventuated only after sentencing, leave to appeal against sentence on this ground must be refused.
[34]
2. an asserted contravention of the principles of Barbaro v The Queen.[1]
[35]
[12] I agree with the reasons of Dalton J in respect of the claim that the sentence was manifestly excessive. I note that the reasoning of the primary judge shows no error of principle and the sentence received by the applicant was substantially comparable to sentences imposed on other offenders in similar circumstances.
[36]
[13] However, the second ground for leave to appeal requires additional comment. The decision of the High Court of Australia in Barbaro v The Queen has had a substantially modifying effect on pre-existing practices relating to submissions made by the prosecution in respect of an appropriate sentencing range. Despite criticisms, this Court is bound to apply Barbaro.
[37]
[14] The joint judgment of French CJ, Hayne, Kiefel and Bell JJ in Barbaro establishes the following propositions and associated conclusions:
[38]
1. Statements regarding the available penalty range result from underlying assumptions regarding the facts to be found by the sentencing judge;
[39]
2. The proposed penalty range is determined from the application of the relevant law to the assumed facts, and balancing competing discretionary considerations;
[40]
3. Accordingly, representations regarding the available penalty range are conclusions constituting an expression of opinion;
[41]
4. As the expression of opinion derives from a synthesis of legal and factual findings, this tends to cause the prosecutor to assume the judicial function;
[42]
5. Because the law requires the maintenance of a sharp distinction between prosecutorial and judicial functions, it is inappropriate for the prosecutor to provide a penalty range.
[43]
[15] The public policy behind maintaining the sharp distinction between the prosecutorial and judicial roles reflects the separate functions of the executive and the judiciary in the criminal justice system. The prosecution, despite acting as a model litigant and minister for justice, represents the interests of the executive which are not always aligned with the impartial administration of justice. The executive may, for instance, give disproportionate weight to the avoidance of public expense or the rewarding of cooperation with law enforcement agencies. Prosecutors may be subject to undue political and community pressure to secure excessively retributive penalties in cases of well-publicised and socially repugnant offences. Accordingly this Court cannot assume that the submissions of the prosecution on penalty range are always entirely dispassionate or neutral.
[44]
[16] Judicial independence, a vital safeguard of the integrity of the administration of justice, requires the judiciary to engage in an independent and impartial decision-making process, not merely adopt the opinion of the prosecutor.
[45]
[17] However, this Court does not grant leave to appeal merely because of identified errors or impropriety in the submissions of the prosecution. The purpose of the appeal against sentence is to correct errors in principle of the sentencing judge, not to sanction or discipline errant prosecutors. Accordingly, the applicant must demonstrate that there has been some error of principle of the sentencing judge for leave to appeal against sentence to be granted.
[46]
[18] It is manifestly inconsistent with principle and logic to suggest that the mere receipt of a penalty range from the prosecution amounts to an error in law.[2] Rather, the applicant must adduce some reasonable basis which establishes, on the balance of probabilities, that the sentencing judge was swayed by the improper penalty range submission. The mere fact that the ultimate sentence determined by the judge happened to fall within the range proposed by the prosecution does not show that.[3]
[47]
[19] There is no evidence from which this Court could reasonably infer that the judge was influenced by the submissions. The significant experience and skill of the sentencing judge militates against that conclusion.
[48]
[20] Even if the judge did act on the submissions on penalty range, the applicant has failed to show that some other sentence is warranted in law. For the reasons explained by Dalton J, the sentences imposed were clearly appropriate.
[49]
[21] The applications to adduce new evidence and for leave to appeal against sentence should be refused.
[50]
[22] MORRISON JA: I have had the advantage of reading the draft reasons of Dalton J. I agree with those reasons and the orders her Honour proposes.
[51]
[23] DALTON J: The applicant asks for leave to appeal against sentences imposed on 16 April 2013. He was sentenced on his own plea on 16 counts. The first was the most serious: that between 13 February 2007 and 13 February 2008 he carried on the business of unlawfully trafficking in cocaine. For this offence he was sentenced to 12 years imprisonment. Because of the operation of s 161A(a)(ii) of the Penalties and Sentences Act 1992 (Qld) and s 182(1) of the Corrective Services Act 2006 (Qld) there was no discretion in the sentencing judge as to the applicant's eligibility for parole on this sentence. The remaining charges on the indictment were 14 counts of importing a marketable quantity (over 2 grams) of cocaine and one count of dealing with money, intending that it would become an instrument of crime (money-laundering). For each of these counts the applicant received a sentence of nine years imprisonment, with a non-parole period of five years. All sentences were concurrent.
[52]
[24] The applicant pled guilty on 11 November 2009. He applied unsuccessfully to set aside his pleas on 30 May 2011. He appealed, and judgment was given against him on 13 November 2012.[4]
[53]
[25] The sentence hearing was contested. It ran over two days. The applicant acted for himself. The applicant continued to act for himself in filing this application for leave to appeal against sentence. An amended application was filed with leave on the hearing of the appeal. So was an application to adduce evidence not before the sentencing judge. The applicant had by this time secured representation.
[54]
[26] In R v Maniadis[5] this Court held that its power to admit evidence not adduced below was at least as wide on an appeal against sentence, as on an appeal against conviction. It set out the principles from Ratten v The Queen:[6]
[55]
(1) may order a new trial where fresh evidence (that is evidence which was not actually available to the appellant at the time of trial and which could not then have been available to him by the exercise on his part of reasonable diligence in the preparation of his case) was capable of being accepted by the jury and, if accepted, was likely to produce a different verdict; and
[56]
(2) may admit relevant and credible new evidence, notwithstanding that it is not fresh in the above sense, if the court is satisfied, on the basis of that evidence, that the guilty verdict should be set aside ..."
[57]
"But a court of appeal will admit new evidence on such an appeal, notwithstanding that it is not fresh in the above sense, if its admission shows that some other sentence, whether more or less severe, is warranted in law ... Evidence of events occurring after the date of sentence is generally unlikely to show this unless it shows what the state of affairs was at the time the sentence was imposed.
[58]
There will no doubt be cases in which, notwithstanding that, if such evidence were admitted some other sentence would be warranted, the evidence should nevertheless be excluded. Where the evidence was known to the appellant at the sentence hearing and deliberately withheld, that will generally be so."[7]
[59]
[28] Whether the applicant understood the significance of the evidence at the time of the sentencing hearing is a relevant consideration in exercising the discretion whether or not to admit evidence not adduced below.[8] It is particularly relevant here because the applicant represented himself on the sentence.
[60]
[29] The applicant sought to rely upon four categories of new evidence. First was an affidavit of Shayne Albert White, his younger brother. Mr White swore that he noticed a change in the applicant's behaviour before his drug offending in the midtolate 1990s, and noticed the same sort of change in his personality again in late 2007. He noticed that his brother was taking less care with his appearance and that his house was dirtier. He noticed that he looked worn out and sounded fed up. He suspected the applicant was involved with drugs again. The applicant never lived a grand lifestyle that he saw. He says he has not had "a lot of contact" with the applicant over the years but recalls his good nature from times past.
[61]
[30] The primary judge accepted that the applicant did not live a lavish lifestyle. Otherwise, I cannot see that the evidence which Mr White could give is relevant to any matter on sentence. Nor can I see that it was not evidence available to the applicant on the sentence. There should be no leave to rely upon evidence of Mr White.
[62]
[31] The second piece of evidence which the applicant sought to rely upon was a report from a psychologist, Shelley Keane. The report was obtained well after sentence was passed. It was open to the applicant to obtain a psychologist's report before the sentencing hearing; there was no explanation as to why he did not do so.
[63]
[32] An affidavit filed in this Court by the applicant's solicitor describes the psychologist's report as "outlining the Appellant's background leading to the offending behaviour" and says that the report "will assist the Court to understand the background of the Appellant, his motivation for committing the offences including his drug dependence where the sentencing Judge had no evidence to that effect leaving the Appellant in the category of a person simply motivated by commercial benefit". And as bearing upon "the Appellant's prospects for rehabilitation within the community ... not engaging in recidivism". It was well within the applicant's ability to place all those factual matters before the sentencing judge had he chosen to do so. He does not swear that he did not appreciate their significance. To the contrary, in running the sentencing hearing before the primary judge, he referred to numerous cases dealing with sentencing principles.
[64]
[33] The psychologist's report is largely based on hearsay. For example, "Mr Verrall reported that the offences occurred against a background of addiction". The applicant was asked on a number of occasions during the sentencing hearing whether or not he wished to give evidence.[9] He declined to do so. Before the sentencing judge, the applicant's submissions attempted to downplay his drug use and addiction - see below at [65]. He did not seek leave to give evidence himself on appeal, to explain this contradictory approach, or to swear to addiction, or dependency. The applicant was aware of the significance of his drug use at the sentencing hearing. He said to the primary judge:
[65]
"What I'd like to just quote now, your Honour, just a very short thing. In the Criminals Carter Code I copied out a citation I wish to quote and it's [3080.13] and it was sentencing generally per Muir J, R v Radforth, and it's the citation is [2003] QCA 183, and it was stated, 'Major determinants for the penalty in trafficking cases include the type of drug supplied, the quality of the drug, the value, the nature of the venture undertaken, and whether the activities are commercial or are engaged [in] to feed a habit.'"[10]
[66]
[34] The psychologist gives the opinion that the applicant would have met the criteria for an alcohol use disorder and a stimulant use disorder according to DSM-V. A psychologist does not have the expertise to make a medical diagnosis. In any event, this diagnosis is based on hearsay information as to the applicant's state years before the psychologist examined him. The information, if true, was available to the applicant and he deliberately chose not to put it before the primary judge. He chose instead to make statements to the primary judge which tended to the opposite effect.
[67]
[35] Various psychological tests were administered to the applicant, the results of which apparently reveal that he has likely experienced a disturbing traumatic event in the past, is suspicious and hostile in his relations with others and has a personality style which is adventurous, risk-taking and impulsive. The psychologist thought that the applicant would benefit from referral to a psychologist when he was released from prison. I cannot see that any of that bears in any substantial way upon the likely sentence imposed.
[68]
[36] For all the above reasons, there should be no leave in relation to the psychologist's report.
[69]
[37] The applicant further wished to put before this Court records from the Department of Corrective Services since the time of sentence. The gist of these materials is that the applicant has continued to study and that he is behaving well in jail since sentence. The primary judge accepted the applicant's evidence as to his undertaking various courses during his time on remand. There can be no warrant for introducing material which post-dates the sentence.
[70]
[38] Lastly, the applicant sought to put before this Court a letter from a private company to the effect that he had full time employment as a labourer with that company when he is released on parole. The general manager expresses the views that the applicant will become "an integral part of our team" and "be open to many possibilities to enhance his professional career" while working at the company. The letter is only three sentences long, so it is difficult to know exactly what the general manager had in mind. There is nothing to explain why such an offer of employment might not have been put before the primary judge. In any case, having regard to the seriousness of the trafficking in this case, this letter could not have made a material difference to the sentence. There should be no leave to rely on this new evidence.
[71]
[39] The sentencing judge set out the facts as to the trafficking:
[72]
"Between February 2007 and February 2008, Mr Verrall conducted his business of importing cocaine, sourcing the product in Thailand and bringing it to Australia, initially by post and later, by courier service.
[73]
Mr Verrall was the proprietor of the business. It was he who arranged for the post office boxes and other addresses to which parcels containing cocaine from Thailand could be sent. He arranged with the supplier in Thailand for the imports. He received the cocaine, and he sold it, ordinarily at wholesale level. He also sent money to Thailand to pay for the cocaine and to enable the illicit cocaine business to continue to be conducted.
[74]
Mr Verrall was in regular contact with his supplier in Thailand, mainly through a web mail address. The two of them had the password to the account. They saved messages to the drafts folder that the other could then read.
[75]
Internet intercepts and web mail fragments disclosed the strategy that was implemented for importing and then selling the cocaine. These included, renting post office boxes in false identities to receive shipments of the cocaine from Thailand, recruiting friends and associates to receive shipments of cocaine delivered for him, selling the cocaine, and then remitting money to Thailand to fund ongoing purchases.
[76]
The internet communications included discussions with the supplier about quality, price and competition in the market in Queensland, as well as details of the imports.
[77]
Two methods were used to receive the cocaine. One involved using the postal system accessing private post office boxes. After a while, that method changed and cocaine was then delivered in packages to residential addresses using a courier service.
[78]
Between February and May 2007, Mr Verrall opened 10 post office boxes at different Australia Post offices. He did so to receive the shipments of cocaine. The boxes were opened in false names using fake drivers' licences. Mail boxes were also opened with MBE, a private franchise agency. These, too were in false names using fake drivers' licences. Mr Verrall used the two sets of mail boxes, and he had control of them. Ten intercepted packages containing cocaine were addressed to eight of the post office boxes. Two of the intercepted packages were addressed to one of the four MBE boxes.
[79]
Mr Verrall's cocaine business was decidedly more extensive than the intercepted imports.
[80]
The volume of sales and the profit generated cannot be estimated with any pretence at precision. But the business was conducted actively and, as Mr Rice submitted, elaborately, in substantial quantities of cocaine over a 12 month period.
[81]
Twelve postal articles were seized between April and September 2007. The courier service seizures took place in November 2007 and January 2008. In all, somewhat more than a kilogram of powder was seized. It contained a calculated pure weight of 435.7 grams of cocaine.
[82]
When he used the courier service, Mr Verrall imported larger quantities of cocaine per shipment than when the mail was used.
[83]
The courier system required the use of a street address for the delivery of the larger consignments. Mr Verrall recruited friends and associates to allow their premises or neighbouring premises to be used as destination points. Intercepted draft e-mails contained several illustrations of arrangements to identify suitable locations at which the packages might be received in Australia.
[84]
Despite the periodic seizures, Mr Verrall continued with his business.
[85]
The amount of money in his trade cannot be ascertained. Some, perhaps slight indication, of the extent of it is revealed by money transfers made using Western Union. Mr Verrall made 171 such transfers between mid-May and mid-November 2007 using a range of false names for the purpose. Sometimes, there were multiple transfers on the one day. Typically, the amount of a single transfer was below $1,000. The money was, it seems, generated from the successful imports. The money was transferred to pay for supplies and, presumably, to remunerate the supplier. The business plainly yielded additional profit for Mr Verrall.
[86]
Eventually, he became apprehensive about the risk of detection using Western Union transfers. He asked his Thailand contact to get another box so that the money could be sent to him. Another means of money transfer, most likely to a post office box in Thailand, was thereafter successfully used once the Western Union transfer ceased.
[87]
It is possible that there were other ways in which the supplier was paid. Recordings show Mr Verrall raising the idea of taking 'paper' to Hong Kong or cash to Bali personally. Whether that eventuated does not emerge.
[88]
Mr Verrall was in the business of selling his cocaine, predominantly at wholesale level. In one communication he is recorded as writing that, 'The people I normally play with are up the chain.' He was anxious to ensure good quality drugs of high purity for them.
[89]
Typically, he dealt in quantities of an ounce or a few ounces. There were occasional sales at street level. But the recorded information shows that Mr Verrall had a distaste for that.
[90]
The street value of the seized powder was about $250,000 if sold by the ounce and about $350,000 if sold by the gram."
[91]
[40] There were two grounds of appeal advanced. The first was that the sentences were manifestly excessive and the second was based on the case of Barbaro v The Queen.[11]
[92]
[41] The applicant's counsel put four arguments as to why the sentences imposed were manifestly excessive.
[93]
[42] The first was that the primary judge: "failed to reflect the objective criminality of the offence of trafficking being that of the other charges in sentencing the Appellant to a heavier penalty where the subject matter was the same as for the other charges". The amended outline of argument on appeal filed on 24 November 2014 says, in support of this argument, "the Appellant's trafficking sentence should not have been greater than for the other matters being the same subject matter, that being akin to double punishment".
[94]
[43] Orally the applicant's argument was that the sentence on the trafficking count ought not to have been greater than nine years. There is no merit in this argument. The trafficking was conducted on a mainly wholesale level within Australia. The drug sold was imported by the applicant. Thus the importing was for the purpose of trafficking and gives an indication as to the scale of the trafficking. However the trafficking was separate offending to the importing. There was substantially more activity comprised in the trafficking than is indicated from the mere fact of the importations and moneylaundering the subject of the other counts of the indictment.
[95]
[44] The applicant highlighted gaps and weaknesses in the factual matrix put before the sentencing judge by the Crown. They do not (individually or collectively) show that the sentence imposed was manifestly excessive. Absent co-operation from the applicant, the police were not able to prove any precise volume of sales, either to the applicant, or by him. Nor were precise details of the finance for the operation available to the Crown. The evidence which was available indicated a substantial, predominantly wholesale, operation involving importation of large quantities of drug, with more than a kilogram of powder (435 grams pure) being seized. There were sales by the applicant in quantities of an ounce or a few ounces and evidence of hundreds of thousands of dollars changing hands. There was simply no basis to contend, as the applicant appeared to do in this Court, that the enterprise was not substantial, commercial and wholesale. That the applicant did not lead a lavish lifestyle was recognised by the primary judge. It is plainly relevant to this issue but not something which would overwhelm the other evidence.
[96]
[45] There was evidence of more importations: 19 October 2007 and 13 November 2007 by UPS courier service and 24 October 2007 by DHL courier service,[12] and evidence of another supply to a post box.[13] There was considerable work involved in setting up post office boxes and other addresses to receive supplies of cocaine, many which were in false names. There was considerable work involved in sourcing cocaine and sending money to Thailand.
[97]
[46] The applicant advanced a further argument that the charge of trafficking was duplicitous because the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2009 (sic) amended s 307.2 of the Commonwealth Criminal Code to widen the meaning of importation so that it includes dealing with drugs after their arrival into Australia. The amendments relied upon came into effect on 20 February 2010, well after the applicant pled guilty on 11 November 2009. The case of R v Tranter[14] was relied upon. The case is not authority for the point the applicant advanced.
[98]
[47] The applicant further relied upon s 4C of the Crimes Act 1914 (Cth) which provides as follows:
[99]
(2) Where an act or omission constitutes an offence under both:
[100]
(a) a law of the Commonwealth and a law of a State; or
[101]
and the offender has been punished for that offence under the law of the State ... the offender shall not be liable to be punished for the offence under the law of the Commonwealth."
[102]
[48] The Crown submitted that this section did not apply because the punishable act or acts comprised in importing a bordercontrolled drug were not offences under the law of Queensland. I think this is correct.[15] The applicant's real submission was aimed at reducing the trafficking sentence. It was that he ought not to have been further punished for the trafficking because "the importation encompasses the trafficking". Section 4C cannot assist him in that argument.
[103]
[49] The second argument relied upon by the applicant's counsel to support the notion that the sentences imposed were manifestly excessive was that the primary judge, "failed to adequately reflect the principle of remorse and contrition under s 4(i) Penalties and Sentences Act in the mention of the Appellant's attempt to reverse his pleas of guilty where the Appellant said he was guilty for 'something'". I accept that remorse is relevant to sentencing, although I do not understand the reference to s 4(i).
[104]
[50] The primary judge said the following in relation to Mr Verrall's pleas of guilty:
[105]
"A factor in mitigation is the extensive efforts at rehabilitation by Mr Verrall while he has been in custody for a prolonged period since his arrest. But whether the courses he has undertaken are likely to reduce the risk of re-offending may be doubted, given his criminal history and his determined efforts since the pleas were entered to deny their clearly proven reliability.
[106]
Another factor to be considered in mitigation is the pleas of guilty. But their significance needs to be assessed in the light of the subsequent history concerning them.
[107]
In November 2008, Mr Verrall was committed for trial. His legal representatives at the committal had cross-examined the witnesses. In June 2009, the case was listed for trial in November that year. At a trial review on 23rd October 2009, Mr Verrall's lawyers confirmed that the matter was to proceed to a trial. The trial was to commence on 10 November. On 11 November, before a jury was empanelled, Mr Verrall pled guilty. The matter was adjourned to 20th November for a contested sentence. That proceeding was then adjourned for further negotiations.
[108]
Thereafter, Mr Verrall sought to have the pleas of guilty set aside. That application was refused, by me as it happens, in May 2011. Mr Verrall appealed to the Court of Appeal. That appeal was dismissed last November. He has a pending application in the High Court of Australia seeking special leave to appeal against the decision of the Court of Appeal.
[109]
A trial might have occupied about three weeks. This sentence hearing has proceeded into a second day. There has, therefore, been a considerable saving of resources arising from the pleas of guilty, despite Mr Verrall's later initiatives to have the pleas set aside. Because of the resource savings associated with the pleas, Mr Verrall will receive a lesser sentence than that which would have been imposed had he proceeded to trial; but he will not receive the degree of discount he would have secured had he entered a timely plea and proceeded promptly, and co-operatively, to sentence."
[110]
[51] The primary judge clearly took into account the effect the applicant's plea had in terms of Court time and resource savings. He addressed this in a detailed way. No doubt a plea can also be relevant on sentencing because it indicates remorse. Where a plea is indicative of remorse, that in turn is relevant to prospects of rehabilitation. So much is acknowledged by the first part of the extract from the sentencing judge's reasons above. The connection between failure to acknowledge the seriousness of the offending to which he pled guilty, remorse, and rehabilitation, was made expressly by the sentencing judge during the hearing of the matter. Twice the sentencing judge invited the applicant to address this very topic:
[111]
"Well, Mr Verrall, you've made much of your rehabilitation, and you've now just mentioned the question of your attitude to the pleas. It makes me wonder whether you want to say anything about this: in view of the way in which you have sought to challenge the pleas over the last few years, what, if any, significance should be attached to any unwillingness there may be on your part to acknowledge the seriousness of your offending?
[112]
It's one thing to draw my attention to all the efforts you've made towards rehabilitation, and I do understand that, but as you stand before me now it might be thought that you present as unwilling to acknowledge or accept the seriousness of your offending, and what I would ask you to address is whether that is a fair characterisation and if it is what, if any, significance it may have for the suggestion that your rehabilitation deserves substantial recognition in the sentencing process. So I'd be grateful if you'd reflect on that and let me know what your answer is when I resume this afternoon." - AB 166167.
[113]
[52] This was in the context where the applicant had repeatedly made submissions which in substance were that he ought not to be sentenced as an importer because, although he pled guilty to importation, he had not in fact imported - see eg AB 59 and AB 67-69. Immediately prior to the primary judge's invitations (above) the applicant made the submission, "... [t]he story I've put to you today, your Honour, of my actions and my involvement in the crime. And I'm sorry for the situation that it's caused. And I know I'm guilty of something. I just don't believe I'm guilty for the charge on the indictment." - AB 165.
[114]
[53] The only response the applicant made to the invitations to address this topic was to blame the lawyers who represented him at the time of his plea, essentially reaffirming that he did not consider himself guilty of importation.
[115]
[54] Although the applicant referred the sentencing judge to many cases about matters relevant to sentence, he made no express submission that he was remorseful. The sentencing judge was entitled to conclude, as he did, that while the applicant ought to be given credit for the fact that his plea had saved time and resources, that was to be moderated having regard to the matters I have just discussed. There was no error by the sentencing judge in this regard.
[116]
[55] The written submissions advanced on behalf of the applicant both criticised the prosecutor and relied upon the applicant's being self-represented in support of this point. Underlying both these arguments was a continuing assertion that the applicant ought not be regarded as guilty of importation. I cannot see that there is any argument that the Crown acted improperly. Nor is there any basis to act other than in accordance with the pleas of guilty entered by the applicant. As well, the facts adduced by the Crown clearly show the applicant did import.
[117]
[56] The next argument advanced in support of the submission that the sentences imposed were manifestly excessive is that the primary judge did not expressly refer to the principle that, in sentencing for Commonwealth offences, a judge must strive for consistency with sentences imposed across Australia. It is not necessary that a primary judge refer to every proposition relevant to the imposition of sentence, however trite. There is no error demonstrated in the primary judge's approach to authority.
[118]
[57] Argument was advanced on behalf of the applicant having regard to statistics and general statements of principle. They are not useful in determining whether or not the sentence in any particular case is excessive.
[119]
[58] So far as argument was advanced by reference to cases said to be comparable, the cases of R v Toe,[16] R v Tesic[17] and R v Peters[18] were relied upon. The case of Toe is an appeal against conviction. The other two cases are single judge decisions which do not purport to deal with more than the facts of the matters they concern. Comparing them to the present case does not show that the sentence here was manifestly excessive. The contrary is the case.
[120]
[59] The case of Peters involved a charge of trafficking based on three supplies. The supplies involved quantities of 4,000, and on two occasions, 3,000 tablets of MDMA which were of a low purity. That is, the offending was much less than the applicant's. Peters had a considerable criminal history. He was a drug dependent person. He had made attempts to improve himself in prison and taken steps to rehabilitate himself, which the judge in that case said caused him to impose a lesser sentence on the trafficking charge than he otherwise would have. He was given a sentence of seven and a half years.
[121]
[60] Tesic trafficked in MDMA over a period of about five months. The evidence showed that the supplies were significant in amount, and high in quality. Tesic was able to obtain large amounts of drug quickly and reliably. He also supplied cocaine. He had a significant enough criminal history, including drug convictions. There was evidence that he had made considerable efforts at rehabilitation. He was sentenced to eight years imprisonment on the trafficking count.
[122]
[61] The applicant here was trafficking over a period of one year. He was the proprietor of the business. The trafficking was in a Schedule 1 drug. The business was active and elaborate. It involved more than the intercepted quantity of drug (435.7 grams). The applicant sold the imported drug, usually in wholesale quantities of an ounce or a few ounces. The business was dependent upon his importing cocaine from Thailand and considerable work, often using fake identities, to arrange post office boxes, and to transmit money to Thailand. The applicant was a mature man with a considerable criminal record, including significant imprisonment for drug offences in the past, who was entitled to less than the usual credit for a plea. He had undertaken many courses aimed at rehabilitating himself whilst on remand, but there were countervailing considerations indicating lack of remorse. A sentence of 12 years for this trafficking offence was not manifestly excessive.
[123]
[62] The case of R v Ly & Kyprianou[19] contains a useful summary of sentences imposed in comparable trafficking cases, including sentences of nine, 10 and 13 years. The sentences in that case were of 12 years and 10 years and six months. The case of Ly, and the cases there discussed: R v Omer-Noori,[20] R v Slivo,[21] R v Nabhan & Kostopoulos[22] and R v Tilley; ex parte Attorney-General (Qld),[23] are all comparable factual cases.
[124]
[63] The case of R v Markovski[24] is another comparable case involving trafficking in Schedule 1 drugs. The period of trafficking there was less than a year, although a variety of drugs was involved. The defendant in that case was a mature man. Unlike the present applicant, he had little criminal history. Markovski did not demonstrate remorse. He trafficked in wholesale amounts. After a trial, he was sentenced to 15 years and this Court refused to interfere.
[125]
[64] The fourth and final argument advanced in support of the ground that the sentences were manifestly excessive is that the primary judge did not adequately take account of "rehabilitation and model prisoner status, psychological issues and drug dependency features of the Appellant, some evidence not being presented due to lack of legal representation".
[126]
[65] The applicant presented an unusually long list of certificates and courses which he had undertaken whilst incarcerated awaiting sentence.[25] He said from the Bar table that he had been a model prisoner. The applicant denied or minimised his own drug use in his submissions on sentence - see for example AB 122-123. In discussing the courses he had completed whilst in jail, he mentioned that he had undergone a drug offender intervention and treatment program - AB 159 - and then made numerous imprecise comments that ran for over a page, the gist of which were to minimise his own use of drugs either in the past or at the time of the offending - see AB 160-161. Finally, after the lunch adjournment which followed the primary judge's second invitation extracted at [29] above, the applicant said:
[127]
"... I now realise I had a problem with the - with the using and the - my actions and so forth. I've gone to a remand centre. Whilst there I have committed every - I have done everything that I could possibly think of to rectify this problem in the way of participating in the offered programs and so forth, even - and passing any drug screening, testing, et cetera. I focused on getting rehabilitated on that first and then I moved on to education, as I've stated, and the reason I've done the education was to re-integrate myself to society." - AB 169.
[128]
[66] At the hearing below, the applicant demonstrated that he was well aware of principles relevant to sentencing. He chose not to tell the primary judge that he was drug dependent or addicted and not to give evidence.[26] There was no error on the part of the primary judge as to drug use or dependency.
[129]
[67] There is no suggestion at all from the record that the primary judge did not take account of the prisoner's efforts at rehabilitation. To the contrary, he expressly invited further submissions upon it, and mentioned it in his sentencing remarks as going in the applicant's favour. There is no error demonstrated.
[130]
[68] The second ground of appeal was that the primary judge contravened statements made by the High Court in Barbaro v The Queen.[27]
[131]
[69] While the amended notice of appeal raised this ground of appeal in relation to all the sentences, it was really unarguable that there was any contravention in relation to the trafficking charge. This sentencing hearing was unusually lengthy and involved the sentencing judge hearing much more factual information, and reference to many more cases (including from the defendant), than is normally the case. At pages 6 to 27 of the transcript below the prosecutor outlined the facts of the trafficking and importation to the sentencing judge in a very detailed way. He then took the sentencing judge to relevant cases in this Court. Those cases referred to ranges, and so did the prosecutor, for the sentencing hearing took place before the decision in Barbaro.
[132]
[70] It could not be said that the prosecutor gave the sentencing judge a range which he said marked the boundaries of the Court's proper discretion. The range offered and discussed was clearly a distillation or summary of information from a number of cases the prosecutor said were comparable on their facts. Between pages 28 and 32 of the transcript below, the prosecutor took the sentencing judge to the detail of those authorities, assisting the primary judge to impose a sentence which was consistent with sentences imposed in comparable cases - cf [39] - [41] Barbaro. Indeed, counsel for the applicant in this Court did not rely upon this exchange between the prosecutor and the sentencing judge as impermissible. There is no indication that the reference to a range by the prosecutor caused the experienced sentencing judge to improperly exercise his sentencing discretion.[28]
[133]
[71] Likewise as to the importation charges, and the money-laundering charge, there is no doubt that the prosecutor did offer the sentencing judge a range. Again, it was not put as a range which bounded the exercise of the sentencing judge's discretion. It was clearly enough offered, in the prosecutor's words, as a suggestion. Further, there is no doubt that the suggestion was offered on the basis of case law (which was given to the sentencing judge) showing what sentences had been imposed in cases the prosecutor thought comparable. The applicant relied upon the transcript below at pages 62 - 63. There is no doubt that the discussion at that part of the transcript, both of the facts of Mr Verrall's offending, and the offending in comparable cases, is more limited than the previous discussion of facts and comparable cases at pages 28 - 32 of the transcript. That is as might be expected when the sentence on the trafficking offence would likely involve the longest term of imprisonment, and where the facts of the defendant's importing and laundering had already been extensively discussed.
[134]
[72] The case of R v Tran[29] was given to the sentencing judge by the prosecutor. That case is a significant one for judges who must sentence for importation in Queensland. In it this Court reviewed importation cases from across Australia in the face of a submission that sentences in Queensland were not consistent with the rest of Australia.[30] At first instance, Mr Tran was sentenced to 15 years imprisonment with a non-parole period of seven years. The Court of Appeal substituted a sentence of 10 years imprisonment with a non-parole period of five years.
[135]
[73] Mr Tran was a courier with no prior criminal record. He co-operated with police during a formal record-of-interview and pled guilty to an ex-officio indictment. In all these respects, he was deserving of a more lenient sentence than Mr Verrall. Both Mr Tran and Mr Verrall were charged with importing a marketable quantity of drugs. The one importation in which Mr Tran participated was an importation of 1.473 kilograms of heroin. In total, the importations by Mr Verrall were of 435 grams of cocaine. That is less than one-third of the amount of Mr Tran's importation, but still a considerable quantity. However, Mr Verrall's conduct was to supply his business of trafficking conducted over 12 months.
[136]
[74] The decision in Tran sets out other comparable cases on importation, in more detail than might normally be done, in order to ensure consistency of sentencing in Queensland for Commonwealth offences. I need not rehearse all the decisions reviewed in Tran. However, the decision in R v Mirzaee[31] is one which contains features comparable to Mr Verrall's case. The amount of the drug was more than Mr Verrall imported - 578 grams of heroin. However, Mr Mirzaee pled guilty, without the complications to that plea which Mr Verrall's case entailed. Mr Mirzaee had no criminal history. There was only one importation by Mr Mirzaee, and no associated offending of trafficking. Mr Mirzaee was sentenced to nine years imprisonment with a non-parole period of six years. The non-parole period was reduced to four and a half years on appeal.
[137]
[75] Comparison with Tran, and the cases reviewed there, shows that the sentences imposed on the importation charges and laundering charge in this case were not manifestly excessive. Cases since Tran compel the same conclusion. In R v Mokoena[32] this Court dealt with an applicant for leave to appeal who was 29 years old with no previous convictions, arrested at the airport with 497.5 grams of pure heroin in pellets which he had swallowed. He pled guilty and the sentencing judge accepted that he was remorseful. He had a family in Africa and was HIVpositive. The Court of Appeal refused to interfere with a sentence of nine years, carrying a nonparole period of four years and nine months. In terms of remorse, personal circumstances, and lack of criminal history, Mr Mokoena was entitled to more leniency than Mr Verrall. Further, although Mr Mokoena imported a slightly larger amount of drug than Mr Verrall imported in total, Mr Verrall's offending was committed over a long period of time and to supply a considerable trafficking business operated inside Australia. Comparatively, Mr Verrall's criminal conduct was worse than Mr Mokoena's. The Court of Appeal referred to R v Tran and also R v Mirzaee with approval. It described the head sentence of nine years as "unremarkable" - [17].
[138]
[76] A comparison with the facts in Lau v The Queen[33] also shows that the sentence imposed upon Mr Verrall was not manifestly excessive. Mr Lau was charged with one count of importation. He was arrested at the airport with luggage containing 709.8 grams of methamphetamine. Mr Lau had no prior convictions. He had a good work history and a wife and children. He pled guilty at the earliest stage. The sentencing judge did not find the plea indicative of remorse, but rather a plea in the face of a very strong Crown case. However, Mr Lau was entitled to leniency for his full cooperation with the Court process and his lack of prior criminal convictions. Mr Verrall's criminality must be considered worse because of the prolonged period of his offending, and his associated trafficking. The Victorian Court of Appeal refused to interfere with a sentence of nine years with a nonparole period of six years. It cited both Tran and Mirzaee with approval - [51].
[139]
[77] In all the circumstances, I would not grant leave to appeal the sentences. The sentencing hearing took place before Barbaro v The Queen was decided, thus, there was reference to ranges. It was not a case where ranges said to establish the bounds of permissible sentencing were proffered by the prosecution. The prosecution proffered ranges supported by reference to cases which had features comparable to Mr Verrall's case, and made submissions on that basis. The experienced sentencing judge was taken to the facts in the cases said to be comparable, and the facts of Mr Verrall's offending. The sentences imposed were appropriate to the offences and consistent with sentences in comparable cases.
[140]
[78] I would refuse the application to adduce new evidence. I would refuse the application for leave to appeal.
[2] It is unclear why this should be distinguishable from other cases where the court has received erroneous submissions from the Crown or any other party. In such cases, the appellant or applicant must still demonstrate that the erroneous submissions infected the ultimate decision of the judge.
[143]
[3] Indeed, provided the prosecutor properly discharged his or her role as a competent and dispassionate model litigant, one might reasonably expect that a judicial analysis of the same factual circumstances involving the application of the same law would derive a similar conclusion.
[26] See the express invitations and explanation as to the defendant's giving evidence at AB 56 and at AB 108-110, which course the applicant rejected.