Court of Appeal (Qld)|2008-05-26|Before: McMurdo P, Mackenzie AJA and Jones JSeparate, reasons for judgment of each member of the Court, each concurring as to the, order made
McMurdo P, Mackenzie AJA and Jones JSeparate, reasons for judgment of each member of the Court, each concurring as to the, order made
Catchwords
APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE –
QUEENSLAND – TIME FOR APPEAL – EXTENSION OF
TIME – where
applicant pleaded guilty to trafficking in cannabis and other less serious drug
Source
Original judgment source is linked above.
Catchwords
APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE –QUEENSLAND – TIME FOR APPEAL – EXTENSION OFTIME – whereapplicant pleaded guilty to trafficking in cannabis and other less serious drugoffences – where applicantsentenced to seven years imprisonment withparole eligibility after two years and nine months – where brief delayadequatelyexplained by the instruction of new solicitors – whereapplicant made full and frank admissions as to his involvement in trafficking,confessing to a wider scope of criminal conduct than was known to police –whether the sentence made sufficient allowance forthe applicant’scooperation – whether the sentence was manifestly excessive –whether an extension of time in whichto appeal against sentence should begrantedAB v The Queen (1999) 198 CLR 111[1999] HCA 46,consideredR v Brown [2004] QCA
229, consideredR v Cacopardo, Cacopardo and D’Ortona
[1997]
QCA 88, consideredR v Kennedy and Watkins
ex parte A-G
of Queensland [2002] QCA
26, consideredR v Lammonde [2007] QCA
75, consideredR v Lobwein and Statham [2000] QCA
100, consideredR v Parsons and Sanders [1999] QCA
402, considered
Judgment (26 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
THE PRESIDENT: Justice Mackenzie will deliver his reasons first.
[3]
MACKENZIE AJA: The applicant seeks leave to extend time within which to appeal against sentences imposed upon him in the Supreme Court in Townsville for trafficking in cannabis and other less serious drug offences. He was effectively sentenced to seven years imprisonment with a parole eligibility date of two years and nine months. The sentences were imposed on 12 October 2007. Affidavits from the applicant and his wife depose to seeking advice promptly about appealing against the sentences from the solicitors who represented him at sentence. The applicant says he was not aware that there was a time limit for making an application for leave to appeal. The applicant's wife says that she was told that there was a 60 day period within which to do so.
[4]
The applicant received advice that disappointed him from the solicitors on or about 5 November 2007. As a result he contacted his wife to pursue the issue of appealing with other solicitors. She contacted the present solicitors on 19 November 2007 and was seen by them on 22 November 2007. The application for an extension of time and the proposed notice of appeal were filed on 23 November 2007. The delay is therefore quite brief and the circumstances are adequately explained. It is a case where an extension of time would ordinarily be granted if there were merit in the appeal.
[5]
The facts of the matter briefly are that police, executing a search warrant at the applicant's business premises, found two 21 litre containers containing nine separate shopping bags with cannabis in them. The total weight was 3.973 kilograms. Two small quantities of cannabis amounting to 13 grams were also found in two other places. $55,000 in cash was also found in a concealed place.
[6]
The applicant had been using a courier service to transport cannabis from South Australia. A search warrant executed on the courier service revealed a carton addressed to the applicant within which was another 21 litre container containing 3.236 kilograms of cannabis. The applicant admitted to dealing in cannabis to financially support his legitimate business that was in difficulty.
[7]
He said in his record of interview that he had engaged in trafficking in cannabis over a 12 month period, supplying on average 10 pounds a week over that period. He made $200 profit on each pound he sold, amounting to $2,000 profit each week. Over the 12 month period of trafficking he sold about 236 kilograms of cannabis, for a total profit of about $100,000. On the basis of the figures given by him as the purchase price, the cannabis was valued at about $1.8 million. The applicant is therefore to be regarded as a significant wholesaler of cannabis.
[8]
The applicant had two minor drug convictions in 2000 and 2002. He was 48 years old at the time of the offence. Among the mitigating circumstances placed before the sentencing Judge was the cooperation with the police which culminated in the admissions that revealed an involvement in trafficking which, it was said, was larger than may otherwise have been able to be proved. Reliance was also placed on the minor criminal history, that the applicant had been a hard worker with an exemplary work history, that he used cannabis for back-related pain arising from a work-related injury, that his involvement in trafficking occurred because of financial difficulties caused by the failing business and a timely plea of guilty after a full hand-up committal.
[9]
The applicant's argument is essentially based on the mitigating circumstances of cooperation and the failing business. The applicant's argument is that the comparative sentences for this kind of offence suggest a maximum head sentence of no greater than seven years imprisonment. It was submitted that the extensive admissions made by the applicant which proved the extent of the trafficking charge against him was a particularly significant mitigating factor, distinguishing the applicant's circumstances from other cases. Reference was made to AB v The Queen[1999] HCA 46; (1999) 198 CLR 111 at 155, where Justice Hayne referred to the sentencing principle that an offender who confesses to a crime is generally to be treated more leniently than an offender who does not, to which further reference will be made later.
[10]
In sentencing the applicant the learned sentencing Judge referred to the applicant engaging in the purchase of cannabis at a very substantial level, that the offending occurred over a significant period and involved substantial sums of money. He expressly took into account the applicant's plea of guilty and cooperation with the police in fixing the head sentence and the parole recommendation. Nevertheless, it was submitted that both the seven year head sentence and the parole recommendation did not reflect the special leniency, to use the phrase from AB v The Queen, which the applicant was entitled to by reason of his full and frank admissions. The ultimate submission was that a period of imprisonment not exceeding six years should have been imposed and a more generous recommendation for parole should have been made. A two year period was suggested.
[11]
The Crown submitted that a head sentence of seven years for trafficking in significant amounts of cannabis was within range and not manifestly excessive. The written submissions suggest that the amount of cannabis sold in the period of this trafficking was significantly higher than in any of the cases relied on as relevant to the appropriate level of sentence. There was some debate about whether that was in fact correct, but it was also said that when very large quantities are concerned the precise amount is often not a critical factor.
[12]
The applicant's motivation was financial gain. A reduction in the parole eligibility period by nine months from the time when half the sentence would expire gave appropriate recognition to the guilty plea and cooperation.
[13]
It was submitted that while the cooperation saved the police a deal of investigation, the extent of the trafficking would still have been relatively easily investigated by reference to the number of deliveries through the courier service. That submission, of course, has an element of speculation about it as well. Further, it was submitted a trafficking charge could have been made out in any event on the basis of the quantity of drugs recovered and the sum of money found on the premises.
[14]
The applicant relied on several authorities in support of a proposition that the sentence was manifestly excessive. Firstly, reliance was placed on the passage from the judgment of Justice Hayne in AB v The Queen, where there was a discussion about the benefits available to offenders who confess to a crime. In particular, reliance was placed on the observations that an offender who brings to the notice of authorities criminal conduct that was not previously known and confesses to that conduct is generally to be treated more leniently than an offender who pleads guilty to offences that were known. Justice Hayne also said that the offender who confesses to what was an unknown crime may properly be said to merit special leniency on the basis that such a confession would often be seen as exhibiting remorse and contrition.
[15]
On one view of what Justice Hayne said, he was saying that the case deserving most benefit was one where a person not under suspicion confesses spontaneously to a crime he has committed. The category into which the applicant falls is an intermediate one where his involvement in criminal conduct has been discovered, but he confessed to a wider scope of conduct than was immediately known to the police. Nevertheless, it is true that he is entitled to a degree of consideration that adequately recognises that his cooperation with the police expanded the extent of his liability.
[16]
Turning to the authorities, R v Brown[2004] QCA 229 involved trafficking over a period of 14 months, to which police attention was drawn by a large number of electronic mail orders for sums that suggested an intention to evade the financial transaction reporting obligations under Commonwealth law. $700,000 was spent in purchasing cannabis and forensic financial analysis suggested unexplained income of about $1.3 million. The applicant had a minor history of fraud offences. The offence of trafficking, like the present case, involved importation of cannabis from South Australia. It was described as a cross-border operation of a sophisticated kind involving significant sums of money. She also had continued the business after her husband was taken into custody in New South Wales. She was sentenced to seven years imprisonment on a plea of guilty, with a parole eligibility date after three years.
[17]
In R v Parsons and Sanders[1999] QCA 402, Parsons was described as the head of a chain that distributed cannabis sourced from Papua New Guinea in quantities that were substantial, although not precisely quantified. He was arrested after supplying 20 kilograms for $100,000 to an undercover police officer, which he agreed to do monthly. There was also talk on surveillance tapes about supplying 40 kilograms per month. Parsons had a substantial number of criminal convictions but the most serious of those had apparently occurred some 25 years prior to sentence. He was sentenced to eight years imprisonment with a parole eligibility date after three and a half years. Those two cases were relied on by both counsel in support of their respective position.
[18]
The applicant also relied on R v Cacopardo, Cacopardo and D'Ortona[1997] QCA 88 and R v Kennedy and Watkins; ex parte A-G of Queensland[2002] QCA 26, at least in the written submissions. The former was a rather different sort of case from the present case. There was an Attorney-General's appeal against sentence in relation to each offender and an application for leave to appeal against sentence by D'Ortona. All accused were involved to varying degrees in the cultivation of a crop of cannabis from the proceeds of which each received $200,000. The Cacopardos, who were father and son, were sentenced after going to trial effectively to eight years imprisonment and five years imprisonment respectively for trafficking, and D'Ortona to eight years imprisonment with a non-parole period of three and a half years after pleading guilty. All had significant criminal histories. It was held that the sentences imposed were within the range of a sound sentencing discretion and the Attorney General's appeals and D'Ortona's application were therefore dismissed.
[19]
R v Kennedy and Watkins; ex parte A-G of Queensland is of little assistance. The submission in the written submission was that the overall level of criminality on the part of Watkins, who also pleaded guilty to extortion, deprivation of liberty and assault occasioning bodily harm, was worse than in the present case. Separate sentences of four years imprisonment for trafficking and three years imprisonment to be served cumulatively for the other offences were imposed. Both the offenders and the Attorney-General appealed. All appeals were dismissed. The Court of Appeal in doing so said that while the effective sentences of seven years and four and a half years may properly be described as somewhat lenient, even allowing for the pleas of guilty, they did not call for the sort of correction that this Court contemplates on an appeal by the Attorney-General. It was also said that neither the three years for the torture nor the four years for the trafficking should be regarded as sitting comfortably with the requisite range and should be regarded as low order penalties which survived appeal only because the Court had to focus on the aggregate terms in the context of the constraints by which the Court is limited in determining appeals by the Attorney-General.
[20]
R v Lammonde[2007] QCA 75, in which a six year head sentence with a parole release date after two years and six months for trafficking in cannabis was imposed, is an example of a lower level of trafficking than the present one, over a longer period than the applicant was involved in. The reduction by the Court of Appeal of the parole eligibility date to 18 months was due to personal circumstances peculiar to the applicant and more compelling than those in the present case, which were said to have been overlooked by the sentencing Judge.
[21]
The respondent also relied on a sentence imposed on the offenders in R v Lobwein and Statham[2000] QCA 100. The trafficking period extended over about two years four months. Statham was sentenced to seven years imprisonment with a recommendation for parole after two and a half years not disturbed on appeal. He had a minor criminal history and was carrying on the business of trafficking by growing hydroponic cannabis in houses adapted for the purpose. There was unexplained expenditure, presumed to be profit from the sale of cannabis, of $130,000. While the presumed profit was a little higher than in the present case the accumulation of it was spread over a longer period. He cooperated with the police and pleaded guilty to an ex officio indictment, but did not identify the person to whom he sold the cannabis. The motive was solely greed. The issues argued were different from those in the present matter but overall the outcome does not suggest that the present sentence is manifestly excessive.
[22]
The present applicant's offending involved repetitive wholesale dealing in cannabis obtained in a well-organised way from an interstate supplier. The quantities and profits were quite large. Analysis of the authorities suggests that the head sentence of seven years, having regard to the facts of the case, is neither manifestly excessive nor even at the top of the range that might have been properly imposed. As the sentencing Judge said, "The seriousness of the events plainly requires a substantial term of imprisonment and I take into account in striking that and the parole eligibility date I will fix, your pleas of guilty and your cooperation with the police."
[23]
Having regard to that, the sentence of seven years accompanied by a parole eligibility date of two years nine months, that is to say nine months before the statutory time at which eligibility would arise in the absence of any other order, makes sufficient allowance for the factors in the applicant's favour. Since the appeal could not succeed I would refuse application for an extension of time within which to appeal.
[24]
THE PRESIDENT: I agree. The maximum penalty for this offence of trafficking in cannabis was 20 years imprisonment. The applicant, James Gregory Wallace, was a mature man. His offending was an extensive commercial wholesaling operation extending over a 12 month period. The sentence imposed of seven years imprisonment with parole eligibility fixed after two years and nine months was within the appropriate range, even taking into account Mr Wallace's early plea of guilty and his extensive cooperation with police. That this is so is demonstrated clearly by Justice Mackenzie's reasons.
[25]
Although the application for leave to appeal was but 11 days out of time, the application for an extension of time should be refused because any application for leave to appeal against sentence would inevitably fail.
[26]
JONES J: For the reasons already expressed, I agree that the application should be dismissed.