- Unreported Judgment
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
R v GBC  QCA 152
CA No 147 of 2017
NSWSC No 64 of 2007
Court of Appeal
Reference under s 672A Criminal Code
Supreme Court at Sydney, New South Wales – Date of Sentence: 30 November 2007 (Berman AJ)
29 June 2018
13 March 2018
Sofronoff P and Philippides JA and Boddice J
In the opinion of the Court, the petitioner is entitled to a 40 per cent reduction on sentence for the offence of murder, and would therefore be eligible for parole on 29 November 2018.
Criminal law – Appeal and new trial – Pardon, commutation of penalty, reference on petition for pardon and inquiry after conviction – Reference to court – where the petitioner pled guilty to murder – where the offence was committed during an attempt to extort money from the complainant – where the petitioner and a co-offender were instructed by a third man – where the petitioner and co-offender were armed with guns – where the petitioner later killed that co-offender in ‘self-defence’ – where the petitioner later assisted police with their investigations into the first murder – where the petitioner provided assistance pursuant to s 13A Evidence Act 1977 (Qld) – where the petitioner undertook to provide evidence pursuant to s 13B Evidence Act 1977 (Qld) – where the petitioner promised to provide evidence against the third man, who had instructed the extortion, once formal charges were laid against that man – where it was uncertain whether that man would be charged with those related offences – where the sentencing judge refused to apply any discount to the sentence on the basis of future co-operation because it was unclear at that time whether charges would be brought against the third man, and what benefit might be gained from the petitioner’s evidence – where the third man was subsequently charged and convicted – where the evidence provided by the petitioner was significant – whether the petitioner should be afforded the royal prerogative of mercy – where the Attorney-General seeks the advisory opinion of the Court in this regard
Constitution of Queensland 2001, s 36
Criminal Code (Qld), s 672A(b)
Evidence Act 1977 (Qld), s 13A, s 13B
Prisoners (Interstate Transfer) Act 1982 (NSW)
Prisoners (Interstate Transfer) Act 1982 (Qld), s 27(5)
Kelleher v Parole Board (NSW) (1984) 156 CLR 364;  HCA 77, cited
R v Brain (1999) 74 SASR 92;  SASC 358, applied
R v Dib  NSWCCA 117, cited
R v Martens (No 2)  1 Qd R 575;  QCA 351, cited
R v Munday  2 NSWLR 177, applied
R v Secretary of State for Home Department: Ex parte Bentley  QB 349, cited
SZ v The Queen (2007) 168 A Crim R 249;  NSWCCA 19, cited
J J Allen QC for the petitioner
P Dunning QC SG, with A D Keyes, and J A Wooldridge, for the respondent
Legal Aid Queensland for the petitioner
Crown Law for the respondent
THE COURT: By letter dated 11 July 2016, the Governor of Queensland was asked to exercise the royal prerogative of mercy in favour of GBC (“the petitioner”), a prisoner serving a sentence of imprisonment pursuant to the Prisoners (Interstate Transfer) Act 1982 (Qld) (“the Act”).
On 30 June 2017, the Attorney-General for the State of Queensland referred to this court, for its opinion under s 672A(b) of the Criminal Code, whether the sentence imposed on the petitioner on 30 November 2007 for the offence of murder, should be remitted in recognition of assistance provided by him after the imposition of that sentence and, if so, to what extent.
On 7 November 2007, the petitioner pleaded guilty in the Supreme Court of New South Wales to the murder of EHT. On 30 November 2007, the petitioner was sentenced to imprisonment for 19 years and six months with a non-parole period of 14 years and six months. Allowing for time already served, the non-parole period expires on 29 November 2019.
On 30 November 2010, the petitioner was granted permission to transfer his imprisonment to Queensland on welfare grounds. He transferred to Queensland on 3 February 2011.
EHT was murdered in northern New South Wales. EHT, was a [PXT] and businessman. Among his business interests was a financial interest in a legal brothel. Prior to his death, that interest was transferred to a man named STO. At the time of his death, EHT was in the process of building another legal brothel.
On 26 May 2000, EHT left the building site of that proposed new brothel. It was late afternoon. He was driving a black [QBC]. As he alighted from that vehicle to lock the gates to the premises, a Nissan Patrol 4WD motor vehicle stopped, blocking his exit. The petitioner, and another man named TOL, emerged from that vehicle, heavily armed. Their purpose was to kidnap EHT to extort money from him. EHT resisted and was shot and killed as he tried to escape. He sustained in excess of twelve bullet wounds.
TOL and the petitioner engaged in the extortion attempt at the request of STO, who had developed significant resentment towards EHT, following the transfer of EHT’s interest in the legal brothel to STO. As part of that transaction, EHT received STO’s family home. STO resented the transfer of that home to EHT.
STO initially approached TOL with the proposition of extorting money from EHT. TOL enlisted the assistance of the petitioner. Together, they constructed a plan to kidnap EHT and demand money from him. They obtained firearms and large quantities of ammunition. Two of the firearms were AK47 assault rifles, capable of rapid fire. Another weapon obtained was a silenced .22 pistol. Both TOL and the petitioner were trained in the use of firearms.
The police investigation into EHT’s murder identified independent evidence supporting the involvement of both TOL and the petitioner. That evidence revealed that EHT was chased by one of them before being shot. That evidence did not identify which of the two actually shot and killed EHT. The petitioner pleaded guilty on the basis TOL shot and killed EHT.
That contention could not be contradicted by TOL as he was dead. He had been shot and killed by the petitioner in March 2003. A trial of the petitioner in respect of that killing had resulted in a verdict of acquittal of having unlawfully killed TOL. The petitioner successfully contended he had killed TOL in self-defence.
The petitioner was sentenced on the basis he was guilty of murder in two ways. First, by participating in a joint criminal enterprise where the petitioner foresaw, at least the possibility that EHT would be murdered. Second, on the basis of felony murder.
At the petitioner’s sentence hearing for the murder of EHT, the prosecution accepted the petitioner should be sentenced on his version of the roles played by the petitioner and TOL in the death of EHT. It was accepted there was corroborative evidence supportive of that version.
According to that version, EHT resisted being bundled into the four wheel drive that had been driven by TOL and the petitioner. He ran across the road where a struggle took place between him and TOL. During the course of that struggle, TOL shot EHT with the .22 pistol. That injury did not disable EHT, who broke free and again ran away towards a parking area.
At that point, the petitioner grabbed an assault rifle and fired a “burst” in the direction of EHT. The petitioner’s stated intention was to stop EHT running away. Six spent cartridges were later found in the vicinity of where the petitioner said he fired that burst. Five of the bullets missed EHT completely, damaging a nearby building. There was no evidence as to the whereabouts of the sixth.
When TOL caught EHT, he forced him to the ground. TOL placed his foot on EHT’s legs, took his assault rifle and shot EHT. The magazine attached to that rifle contained 30 rounds of ammunition. The petitioner believed TOL emptied the magazine into EHT. A forensic examination revealed 15 fired cartridge cases near the body of EHT. Twelve of those rounds had struck EHT’s body, along with two bullets from the silenced .22 pistol.
TOL and the petitioner left the scene in the four wheel drive. The petitioner was given the task of destroying that vehicle. He failed to do so and the vehicle was found by police shortly thereafter. An examination of the vehicle revealed a number of finger prints. Some of those finger prints were the petitioner’s finger prints.
The petitioner was interviewed by police on 19 November 2000. He denied any involvement in EHT’s murder. At that point, an investigation did not proceed further. However, an investigation in March 2003, into the killing of TOL by the petitioner, revealed evidence linking the petitioner to EHT’s murder. The petitioner then assisted police in a variety of ways, including in the recovery of a large number of firearms.
An analysis of that material revealed a bolt which was positively identified as the bolt in the AK47 assault rifle, which discharged the six rounds fired by the petitioner in EHT’s direction during the failed kidnap attempt. Police also received information from a OQ, who was present when the petitioner killed TOL. That information incriminated the petitioner in EHT’s murder. As a consequence, police re-interviewed the petitioner on 19 March 2003. During that interview, the petitioner admitted his role in the murder of EHT.
The sentencing judge observed that the circumstances of EHT’s death were truly appalling. The kidnapping and extortion attempt had involved considerable planning. The petitioner and TOL had armed themselves with weapons and a considerable quantity of ammunition. EHT had been pursued and fired at by both of them, before being executed by TOL whilst he lay helpless on the ground. The petitioner had himself discharged six rounds in the direction of EHT as he attempted to flee the scene.
The sentencing judge did not consider it a mitigating factor that the petitioner had only discharged six shots in the direction of EHT. It was not a case where the petitioner deliberately shot away from EHT’s position, so that the sound of gun fire would cause him to stop running. The petitioner fired in EHT’s direction, recognising the significant risk it would kill him.
The sentencing judge also observed that the petitioner had no grudge against EHT, yet was prepared to kidnap and extort money from him, purely for significant financial reward. It was greed that had involved the petitioner in the crime.
The sentencing judge took into account, in the petitioner’s favour, that the plan was that EHT not be killed. It was necessary for him to be alive in order to extort money from him. The sentencing judge accepted the petitioner did not want to be responsible for the death of another human being. The sentencing judge also accepted the petitioner played a less important role than TOL. TOL had made all of the arrangements, undertaken most of the planning and was obviously the leader. However, the petitioner was not involved due to pressure or persuasion. His motivation was financial gain and he was prepared to take the risk.
After having regard to what was described as the petitioner’s unremarkable upbringing and remorse, as well the petitioner’s past criminal history, which included a conviction for armed robbery, the sentencing judge had regard to the petitioner’s assistance to the authorities. Relevantly, that assistance included information about STO’s involvement in EHT’s murder. The petitioner had also undertaken some actions at the request of authorities in order to obtain evidence which would incriminate STO, and had offered to give evidence against STO, if he were ever charged with the crime.
The sentencing judge observed that until the petitioner made admissions to police during his interview of 19 March 2003, police did not have enough evidence to charge the petitioner with EHT’s murder. His admissions were therefore of considerable assistance in making out the case against the petitioner. That assistance went beyond merely providing confirmation of police suspicions. The petitioner had volunteered information previously unknown to police. That information related to the involvement of STO.
The sentencing judge observed that whether STO was ultimately charged by police, affected the utility of the petitioner’s assistance. However, investigating police believed the information the petitioner had provided was truthful and accurate. Police also had no reason to think the petitioner was withholding any information. It was conceded that without the petitioner’s information, there was no case against STO in relation to a murder charge. The petitioner’s assistance was therefore potentially very important.
The sentencing judge noted two other relevant factors. First, the petitioner had, prior to 19 March 2003, been interviewed by police on two occasions. In both of those interviews he proclaimed his innocence, rendering his credibility subject to attack should he give evidence against STO. The petitioner’s undertaking to give evidence and assist the authorities also came a considerable time after EHT’s murder. Second, the petitioner’s assistance would result in his serving a sentence on protection. That placed the petitioner at risk that he would serve his sentence in custody harder than a prisoner in the general population. The sentencing judge noted that there was a real risk to the safety of the petitioner whilst in custody. The petitioner would have to always be vigilant, a circumstance which would affect the harshness of his custodial conditions.
Finally, the sentencing judge noted the petitioner had a genuine desire to rehabilitate, but observed that was not the same as saying his prospects of rehabilitation were good. The sentencing judge was not satisfied, having regard to all of the circumstances, the petitioner had established he had good prospects of rehabilitation or that he was unlikely to reoffend.
In coming to an appropriate sentence, the sentencing judge observed he was required to quantify a reduction in sentence, due to the petitioner’s early plea of guilty and his assistance with authorities. The sentencing judge declined to separately quantify those reductions. It was unknown whether STO would ever be charged with EHT’s murder. If he was, and the petitioner gave evidence against him, that assistance would be of substantial value to the authorities. However, as at the date of sentence, it could not be said it would include giving evidence against STO.
The sentencing judge acknowledged the petitioner’s promise to assist in the future extended beyond the giving of evidence and encompassed active cooperation with police. However, it was not known what form that cooperation would take or how useful it would be, causing considerable difficulties in quantifying the value of the petitioner’s promised assistance. The sentencing judge decided to indicate a discount on the sentence that would otherwise have been imposed, which combined the petitioner’s early plea of guilty and assistance to the authorities, but which assumed he would not be giving evidence against STO. The sentencing judge expressly noted that if STO was charged and the petitioner gave evidence against him, that assistance would be significant assistance, and any reward for that assistance would be a matter for the executive.
The sentencing judge reduced the sentence of 30 years imprisonment he would otherwise have imposed by 35 per cent to reflect the early plea of guilty and the petitioner’s assistance. The sentence was agreed to commence on 30 May 2005. Accordingly, the petitioner was sentenced to imprisonment for 19 years, six months with a non-parole period of 14 years, six months. The non-parole period expires on 29 November 2019.
The petitioner has provided further assistance to authorities, for which he has not received any benefit by way of mitigation at the time of his sentence. First, the petitioner provided evidence about the theft of two registration plates from a vehicle in the Tweed Heads area. Those registration plates were subsequently attached to the four-wheel-drive vehicle used by TOL and the petitioner to attend EHT’s premises. That statement did not implicate STO in this aspect of the offending but gave background to the events culminating in EHT’s murder.
Second, the petitioner gave evidence at STO’s committal proceedings. STO was charged with the murder of EHT on 17 June 2008. He was also charged with the offences of detaining for advantage and causing injury to a victim and assault with intent to rob while armed with a dangerous weapon. On 13 November 2009, STO was committed for trial in respect of those offences.
Initially, the petitioner gave evidence at those committal proceedings that he had no recollection of any of those events. When an adverse witness application was foreshadowed, the petitioner indicated he had concerns for his safety of a consequence of which he neither remembered, nor wanted to remember those details. After a break in proceedings, the petitioner indicated a willingness to give evidence. He then recalled details he previously denied remembering of those events. It was accepted by the prosecutor at committal that the petitioner’s evidence was significant. The objective evidence supporting the petitioner’s version of events was obtained through the petitioner’s assistance provided before his sentence for murder.
Third, STO entered a plea of guilty to EHT’s manslaughter and to being an accessory before the fact to the charge of armed assault with intent to rob on 4 August 2010. It was accepted on STO’s sentence that the facts alleged against STO were largely derived from the petitioner’s statements to police, implicating STO in those offences.
Section 36 of the Constitution of Queensland 2001, provides, relevantly, that the Governor of Queensland has power to grant an offender “a pardon, a commutation of sentence or a reprieve of execution of sentence for a period the Governor considers appropriate”. This power is the equivalent of the former royal prerogative of mercy.
The prerogative of mercy is recognised as a flexible power. Its exercise is to be adapted to meet the circumstances of a particular case. It extends to a remission which releases a prisoner from the obligation to serve a sentence in whole or in part in custody, without altering the term of the sentence itself.
On the consideration of any such petition, the Attorney-General may refer a point to the Court for its opinion, if the Attorney-General decides the assistance of the court on that point will assist the determination of the position. The Court is bound to consider the point so referred and furnish to the Attorney-General the opinion of the Court. In providing that opinion, the Court acts only in an advisory capacity. The Court does not deal with the petition itself. It simply provides an opinion to assist the Executive in advising the Governor in relation to the petition.
Although the petitioner’s sentence was imposed by the Supreme Court of New South Wales, the petitioner’s sentence is a ‘translated sentence’ by section 27(5) of the Act and by the provisions of its New South Wales counterpart, the Prisoners (Interstate Transfer) Act 1982 (NSW). The Governor of Queensland is authorised to exercise the royal prerogative of mercy in favour of a person who is the subject of a translated sentence.
The Attorney-General and the respondent both submit that evidence of post sentence events may be received in the present proceedings as the Court is performing an advisory, not a judicial function. The receipt of such information is consistent with the exercise of the prerogative of mercy, which necessarily involves a consideration of matters which have arisen only after sentence.
They further submit that in giving its opinion, the Court ought to apply the applicable law in New South Wales. The term of imprisonment was imposed by a New South Wales Court. The grounds for the exercising of the prerogative relate to cooperation with the administration of justice in New South Wales.
Such an approach is also consistent with the purpose of the interstate scheme, which provides that nothing in it permits in Queensland any appeal against or review of the conviction, judgment or sentence. It is also consistent with the terms of section 27(5)(b) of the Act, which provides that the Governor of New South Wales may give an indication to the Governor of Queensland as to what the Governor of New South Wales may have done, had the person not been transferred.
The Attorney-General submits that courts in New South Wales allow a combined discount to reflect both an early plea of guilty and assistance to authorities. However, where possible, a separate component of the discount attributable to future assistance should be identified for guidance, in the event that the proposed assistance is not forthcoming.
Whilst the overall discount in recognition of pleas of guilty and assistance to authorities has ranged between 20 per cent and 50 per cent, discounts of more than 40 per cent, should very exceptionally, if at all, be granted in a case where there is no evidence the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population.
At sentence, the petitioner’s sentence was reduced by 35 per cent in recognition of his plea, his cooperation in relation to his own offence and his assistance to date in relation to STO. Since that sentence was imposed, the petitioner had provided significant further assistance to the authorities which was of substantial value in obtaining STO’s conviction for manslaughter. Had the future assistance in relation to STO been a relevant factor at the time of sentence, a reduction of 40 per cent would, in the Attorney-General’s submission, appropriately have represented the applicant’s overall assistance.
The Attorney-General submits no further reduction is warranted in the present case as there is no evidence the petitioner’s conditions of custody in Queensland have been affected by his subsequent assistance. Further, his assistance must be viewed in the context that that cooperation only came to light after the investigation into the death of TOL, which linked TOL and the petitioner to the murder of EHT. Until that time, the petitioner maintained he had no involvement in the murder of EHT.
The petitioner submits a reduction of 40 per cent does not appropriately reflect the extent and significance of his assistance, or of the more onerous conditions in which he has spent a substantial part of his sentence. His initial denials must be viewed in the context of fear of repercussions from TOL. Further, the assistance provided after TOL’s death extended over a period of more than five years, involved numerous episodes of contact with police, including acting as a police agent and giving evidence in STO’s committal proceedings, despite fears for his safety.
The petitioner submits his assistance was at a very high level. The investigating officers acknowledge his assistance was essential for the successful prosecution of STO. Allowing for all of those factors, the appropriate discount for the petitioner’s pleas of guilty and assistance, including future assistance, should be 45 per cent.
At sentence, the sentencing judge expressly acknowledged there was a risk that the petitioner may serve his sentence in more onerous conditions than a prisoner in the general population. The evidence that the petitioner has suffered more onerous conditions relates to the fact he has been subject to verbal abuse and been treated as a protection prisoner for a significant part of his sentence. However, he has been entitled to take advantage of the various educational and other opportunities available in the Queensland prison system. To that extent, the more onerous conditions are not more significant than was considered a risk at the time of the original sentence.
The more significant post-sentence factor is the petitioner’s cooperation in giving evidence at STO’s committal and his willingness to give evidence at trial, which only became unnecessary as a consequence of the Crown accepting STO’s plea to the offence of manslaughter. That cooperation was crucial to the successful prosecution of STO and was given in circumstances where the petitioner expressed genuine fear as to the consequences for him in giving evidence against STO.
The assistance provided by the petitioner in such circumstances is properly to be regarded as significant and substantial assistance with the administration of justice. However, in considering the reduction to be afforded as a consequence of that further post-sentence assistance, regard must be had to all of the circumstances in which that assistance was provided, including the reduction which was made at sentence in recognition of the petitioner’s then assistance with the administration of justice.
At sentence, the petitioner received a significant discount for his cooperation with the authorities to date. That cooperation included providing detailed statements to police implicating STO in the unlawful killing of EHT. It included ongoing cooperation over a very lengthy period, during which the petitioner acted as a police agent to arrange for STO to be covertly recorded by police. The petitioner also assisted police at the scene of the murder and other locations. That information led to police being able to undertake investigations supportive of the petitioner’s evidence.
The reduction given at sentence expressly acknowledged that whether the petitioner provided future assistance, by way of giving evidence against STO, depended on STO being charged in relation to the unlawful killing of EHT. The reduction given at sentence included all of the petitioner’s assistance to police, other than the giving of evidence against the STO.
For that reason, there should be an increase in the overall reduction to reflect the significance of that future assistance which ultimately came to fruition, but not of a magnitude of 45 per cent as contended for by the petitioner. To allow a reduction of the sentence in excess of 40 per cent would be to inflate the effect of that additional future assistance in the context of the overall circumstances of the petitioner’s plea of guilty and assistance with the authorities prior to his sentence hearing.
Whilst that further assistance was substantial, there is nothing in those overall circumstances which would justify the exceptional step of a reduction in excess of 40 per cent, even allowing for the conditions in which the petitioner has served that sentence. As Barr J observed in R v Dib:
“The value to be attributed to a particular feature of a case, cannot be assessed without having in mind all the other features in the case, favourable and unfavourable. Sometimes a preponderance of favourable features will result in any one of them receiving less weight than it might have received in the absence of the other favourable features. An example is the credit that must be given to an offender who has provided or undertaken to provide assistance to the authorities. The legislation provides, as the common law before it provided, that there is a limit to the value that may be given to such a combination of features. The resulting penalty may not be disproportionate to the nature and circumstances of the offence.
In a similar way, different features which each entitle an offender to a less severe sentence may have overlapping effects, with the result that the appropriate total allowance will be less than the sum of the parts.”
In the opinion of the Court, the petitioner is entitled to a 40 per cent reduction on what would have been his sentence of 30 years for the murder of EHT. This reduction recognises his pleas of guilty, his assistance to the date of sentence, and his assistance provided to authorities after his sentence, which related to the involvement of STO in EHT’s murder.
A reduction of 40 per cent represents a head sentence of 18 years, with a non-parole period of 13 years and six months. The petitioner would therefore be eligible for parole on 29 November 2018.
 AB 144/20.
 R v Secretary of State for Home Department: Ex parte Bentley  QB 349 at 365.
 Kelleher v Parole Board (NSW) (1984) 156 CLR 364 at 367.
 Criminal Code, s 672A.
 R v Martens (No 2)  1 Qd R 575 at 586 .
 R v Brain (1999) 74 SASR 92 at 98 -.
 R v Munday  2 NSWLR 177 at 178.
 SZ v The Queen (2007) 168 A Crim R 249 at 258 .
 Ibid at 259 .
  NSWCCA 117 at - – citations omitted.
- Published Case Name:
R v GBC
- Shortened Case Name:
R v GBC
 QCA 152
Sofronoff P, Philippides JA, Boddice J
29 Jun 2018
|Event||Citation or File||Date||Notes|
|Primary Judgment||NSWSC 64/07 (No Citation)||30 Nov 2007||Date of Sentence (Berman AJ).|
|Appeal Determined (QCA)|| QCA 152||29 Jun 2018||Petition for royal prerogative of mercy; reference to Court of Appeal pursuant to s 672A(b) of the Criminal Code for its opinion; opinion provided that petitioner entitled to a 40% reduction on sentence for the offence of murder and would be eligible for parole on 29 November 2018: Sofronoff P and Philippides JA and Boddice J.|