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R v Willoughby

 

[2009] QCA 105

 

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

DELIVERED ON:

28 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2009

JUDGES:

Chief Justice, Chesterman JA and Atkinson J
Separate reasons for judgment of each member of the Court, the Chief Justice and Chesterman JA concurring as to the order made, Atkinson J dissenting

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – applicant pleaded guilty to five offences against the Drugs Misuse Act 1986 – most serious offence was that of trafficking a dangerous drug, namely MDMA – sentenced to 10 years imprisonment – whether sentence was manifestly excessive when compared to similar cases

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where applicant was apprehended with a number of other co-offenders during an operation by the National Crime Authority – whether sentence was comparable to that of the other co-offenders

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – RESPONSE TO CHARGES – DELAY BETWEEN OFFENCE AND SENTENCE – where delay between offence and sentence was approximately six years – where applicant had demonstrated rehabilitation – whether sentencing judge gave adequate consideration to issues of delay and rehabilitation

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – RESPONSE TO CHARGES – PLEA OF GUILTY – where applicant pleaded guilty to all charges on the indictment – avoided the need for lengthy trial – whether sentencing judge gave adequate consideration to plea of guilty

Drugs Misuse Act 1986 (Qld), s 5, s 13
Penalties and Sentences Act 1992 (Qld), s 161A, s 161B, s 161B(2)

R v Bradforth [2003] QCA 183
R v Cockerell (2001) 126 A Crim R 444; [2001] VSCA 239
R v D’Arcy (2001) 122 A Crim R 268; [2001] QCA 325
R v Donnelly and Corbic [2007] QCA 77
R v Elizalde [2006] QCA 330
R v Klasan [2007] QCA 268
R v L; ex parte Attorney-General [1996] 2 Qd R 63; [1995] QCA 444
R v Nabhan; R v Kostopoulos [2007] QCA 266
R v Rizk [2004] QCA 382
R v Rizk & Raciti [2004] QCA 359
R v Saunders [2007] QCA 93
R v Tiburcy, Gardner and Zeuschner (2006) 166 A Crim R 291; [2006] VSCA 244
R v Tilley; ex parte A-G [1999] QCA 424
Vartzokas v Zanker (1989) 51 SASR 277

COUNSEL:

B W Farr for the applicant
M B Lehane for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

[1]  CHIEF JUSTICE:  I have had the advantage of reading the reasons for judgment of Chesterman JA.  I agree that the application should be refused for those reasons.

[2]  CHESTERMAN JA:  On 30 May 2008 the applicant pleaded guilty to five counts on an indictment charging him with offences against the Drugs Misuse Act 1986 ("DMA").  The first count charged the applicant with trafficking the dangerous drug MDMA (ecstasy) between 25 June 2002 and 20 August 2002.  The second charged him with unlawfully supplying MDMA on 27 June 2002.  The third was a charge of possessing MDMA on 2 July 2002.  The fourth count charged him with unlawfully supplying MDMA on 4 July 2002 and the fifth count charged the unlawful supply of methylamphetamine on 5 August 2002.

[3] On 17 July 2008 the primary judge sentenced the applicant to 10 years imprisonment on count one, five years imprisonment on each of counts two, four and five and two years imprisonment on count three.  All sentences were to be served concurrently.

[4] Prior to 1 June 2008 MDMA was listed in Schedule 2 to the DMA.  On and from 1 June 2008 it became a drug listed in Schedule 1.

[5] The primary judge did not declare that the applicant had been convicted of a serious violent offence although, as a matter of law, he had.  Section 161A of the Penalties and Sentences Act 1992 ("Penalties Act") provides that an offender is convicted of a serious violent offence if he is convicted on indictment of an offence against a provision mentioned in the Schedule to the Act and is sentenced to 10 or more years imprisonment.  Section 5 of the DMA, which makes it a crime to carry on the business of unlawfully trafficking in a dangerous drug, is included in the schedule.

[6] Section 161B of the Penalties Act provides that if an offender is convicted of a serious violent offence the sentencing court must declare the conviction to be one of a serious violent offence as part of the sentence.  This was not done but s 161B(2) provides that the failure of the court to make the declaration required "does not affect the fact that the offender has been convicted of a serious violent offence."

[7] Nothing flows from the omission to make the declaration.  The applicant accepted that the learned primary judge merely overlooked the need for it, as did both counsel, after giving detailed and careful reasons.  Her Honour was well aware of the consequence of the sentence imposed, and intended it.

[8] The applicant was one of a number of people charged with trafficking in dangerous drugs as a result of an extensive police and Australian Crime Commission investigation over many months involving the interception of telephone calls and covert surveillance.

[9] The applicant was 30 years of age at the time of the offences and 36 when sentenced.  He had a criminal history.  On 21 March 2001 he was sentenced to a period of two years imprisonment wholly suspended for an operational period of three years for defrauding his employer of almost $19,000.  The present offences were committed during the operational period of the suspended sentence.  The learned sentencing judge activated the whole of the sentence so that the applicant is required to serve the two year term though concurrently with the sentences imposed for the drug offences.

[10]  The applicant has two convictions for breaching his bail condition.  These were committed subsequently to his arrest on the present charges but appear to be irrelevant to the question of sentence.

[11]  The applicant seeks leave to appeal on the grounds that:

1. The sentence was manifestly excessive;

2. The primary judge failed to give adequate consideration to the plea of guilty;

3. The primary judge failed to give adequate consideration to the delay between the offences and the imposition of the sentence;

4. The sentencing judge failed to ensure appropriate parity between the sentences imposed on the applicant and those imposed on co-offenders.

[12]  Before turning to the grounds of the application it is appropriate to review the evidence which established the applicant's unlawful trafficking in ecstasy.  It comes from the contents of intercepted telephone calls made by and to the applicant between 26 June 2002 and 20 August 2002.  On 1 August the applicant changed mobile phones as a result of the police intercepting a large quantity of ecstasy tablets consigned to him in early July 2002.  The change was meant to help the applicant avoid detection.  Calls to the new phone were intercepted as they had been to the previous phone.  What is significant is the applicant's persistence in his criminal enterprise after he had noticed that the police knew something about the trafficking in which he was involved.

[13]  The applicant together with Betham, Nabhan, Kostopoulos and others "were involved in the large scale wholesale distribution of … ecstasy.  The (applicant) was involved in ... arranging for the purchase and distribution of quantities of ecstasy tablets in the order of 5 - 10,000 at a time worth hundreds of thousands of dollars. … surveillance and drug seizures … reveal that the (applicant) devoted extensive and time consuming efforts in arranging for the purchase and distribution of drugs.  On occasions it is possible to discern that successful transactions were completed, on other occasions the investigators foiled the transactions.  However it is also possible to discern that other transactions did not proceed for a variety of reasons, e.g. that the supplier was not able to supply the drugs … or there was a failure to reach agreement on price.  On other occasions it is not possible to discern … whether the transaction was successfully completed or not.  However it is possible to say that the (applicant) entered into extensive negotiations as a credible wholesale purchaser and distributor of (ecstasy)."

[14]  The applicant dealt, or agreed to deal, in ecstasy tablets used by different manufacturers and bearing different brand or maker's marks.  The quality (purity) of the drug in tablet form seems to have varied between makers.

Dealings with Betham

[15]  On 25 June 2002 the applicant offered to sell Betham between 5,000 and 10,000 tablets at between $18 and $18.50 per tablet (I interpolate that the maximum value of the transaction was $180,000).  Betham asked for and was given a sample for examination.  The applicant had difficulty in obtaining the 10,000 tablets but was offered 3,000 by one Mayo.  He agreed to buy them at $18 per tablet and Mayo arranged for their delivery from Sydney by a carrier whose name was King.  Betham agreed to buy the 3,000 tablets.  The total price was $72,000.  The drugs were duly sold.  The sale is the subject of count two in the indictment, the unlawful supply of MDMA.  Having obtained the 3,000 tablets from King for delivery to Betham the applicant spoke to Betham about the sale of a further 10,000 tablets, a sample of which he had already given to Betham.  On 6 July 2002 the applicant telephoned Betham and asked for 1,000 tablets.  On 18 July Betham told the applicant he was expecting a delivery of MDMA and the applicant said he had a customer for 5,000 tablets.  On 4 August the applicant offered to sell Betham tablets which Nabhan had obtained.  Betham ordered 5,000.

Dealings with Mayo

[16]  The applicant dealt with Mayo with a view to making long term substantial sales of 10,000 tablets per sale.  King was asked to supply a sample of the tablets and sent them by post to the Southport Post Office where the applicant collected them.  Prior to his arrival at the post office police executed a covert warrant, opened the parcel, extracted a small sample from one tablet and resealed it.  The sample taken by the investigators confirmed the tablets to be ecstasy.

[17]  On 2 July 2002 Mayo and King spoke about the delivery of 5,000 tablets at $18 each.  The next day the applicant spoke to Mayo and agreed to buy 6,500 tablets (presumably at the same price, $18 per tablet, making the transaction worth $117,000).  In anticipation of the delivery of the tablets the applicant negotiated with a number of potential purchasers for on-sale to them.  Nabhan agreed to buy 5,000.  The investigators who were monitoring the conversation arrested King at the Gold Coast on 4 July 2002.  They found 6,500 tablets concealed in his car.  This incident is the subject of count four on the indictment, unlawfully supplying MDMA.  It was after the seizure and arrest that the applicant changed mobile telephones but continued his unlawful operations.  On 6 July the applicant offered to sell 6,000 tablets to Nabhan and Mayo.

Dealings with Brown

[18]  On 26 June 2002 the applicant negotiated the purchase of 5,000 tablets, from Brown at a price of $18 per tablet.  Brown broke off negotiations because the price was too high.  The applicant then negotiated with Nardonne to buy 5,000 tablets.  Later that day the applicant spoke to Nabhan about buying 4,000 tablets.  The next day the applicant offered to sell Brown 100 tablets of a different make for a price of $2,150.  On 28 June 2002 the applicant offered tablets to Brown and to Nardonne.  Mayo asked the applicant to sell him 500 tablets at $20 each.  The applicant indicated that he would make the deliveries from his own store of supplies.  On 16 July 2002 the applicant told Brown he had received a consignment of 2,000 tablets and had 500 left to sell.  He offered them at $21 each.  On 19 July 2002 the applicant offered to sell Brown 3,000 tablets at $21 per tablet, and, in a separate transaction, he offered to sell 6,000 tablets of a different make at $18 per tablet.  He told Brown that he would obtain the tablets from Nabhan.  On 25 July 2002 the applicant told Brown that he had tablets of two different makes for sale at a price of $22 per tablet.  On 30 July 2002 Brown told the applicant he could sell 1,000 tablets and the applicant replied that he had customers who wanted between 10,000 and 15,000 tablets.  Brown was doubtful of his ability to supply such a quantity.  The next day, 31 July, the applicant again discussed with Brown the demand for ecstasy tablets and said that he was endeavouring to buy 15,000.  On 3 August 2002 Brown told the applicant that he had a customer for 8,000 tablets.  Together they discussed buying 10,000 tablets.  The applicant revealed that on large deals his profit was 50 cents per tablet and that he made more money selling "in hundreds".  The applicant told Brown that he had 10,000 tablets available and had ready customers for them.

Dealings with Mundy

[19]  On 27 June 2002 the applicant agreed to buy 1,000 tablets from Mundy who had earlier given a sample to the applicant.  On 28 June Mundy offered to sell the applicant 1,000 at $18.50 each.  On 2 July 2002 the applicant contacted Mundy and asked to buy 1,000 tablets of particular make as he had a customer who wanted to buy 2,500 of them.  On 5 July 2002 the applicant and Mundy struck a deal to sell 200 tablets and arrangements were made for the supply and delivery of the drug.  On 18 July 2002 the applicant agreed to buy 1,300 tablets from Mundy.  They agreed upon a price of $18.50 per tablet.  They met to effect delivery.  On 21 July 2002 Mundy asked the applicant what tablets he had in stock.  The applicant replied that he had tablets of one make and was waiting supply of another.  Mundy ordered 300 tablets.  On 22 July 2002 Mundy approached the applicant and asked to buy 5,000 tablets but was told that the applicant had sold his entire stock and was waiting for fresh deliveries.  The next day the applicant contacted Mundy and told him that he could supply 4,000 tablets of a particular make within a few hours.  On 31 July 2002 the applicant agreed to buy 5,000 tablets at $16 each for on-sale to Nabhan if Mundy could provide a sample.  The applicant said that Nabhan would buy 15,000 if the quality was satisfactory.  On 5 August 2002 the applicant as agent for Nabhan bought an ounce of methylamphetamine from Mundy for $2,500.  The supply of the methylamphetamine to Nabhan is the subject of count five in the indictment.  On 8 August 2002 the applicant offered to sell Mundy 500 tablets at $19.50 each, Mundy rang back a little later to say that he had a purchaser for 100 of the tablets.  On 13 August the applicant offered to sell 300 tablets to Mundy at $20 each.  The next day Mundy asked for a sample and after, presumably testing it, bought 210 tablets.

Dealings with Sullivan

[20]  On 27 June 2002 the applicant offered to sell 100 tablets to Sullivan to a price of $2,200.  On 11 July 2002 the applicant agreed to supply 40 tablets to Sullivan.  On 19 July he offered Sullivan 100 tablets of a particular make for $2,200.  Sullivan also agreed to buy 50 of the 500 tablets the applicant had offered Sabine on 17 July.  The price was $22 per tablet.

Dealings with Sabine

[21]  On 27 June 2002, Sabine placed an order for 500 tablets with the applicant who agreed to supply them the next day.  On 14 July the applicant offered Sabine 900 tablets at $21 each.  Sabine thought them too expensive but bought 200.  On 17 July the applicant offered to sell Sabine 700 tablets at $22 each.  There were negotiations about the price over the next two days during which the applicant said he had 500 left for sale.  On 19 July Sabine bought 100 tablets and discussed the purchase of another 300 or 400.  On 25 July the applicant asked Sabine what price he would pay for 1,000 tablets and suggested $18 each.  Sabine agreed to buy between 3,000 and 4,000.  The applicant said in passing that he had sold all of the 500 tablets he had mentioned in their conversation of 17 July.  On 26 July the applicant told Sabine he was taking possession of 10,000 tablets of a particular make and they were for sale at $18 each.  Sabine said he would take another 3,000 to 4,000.

Dealings with Nabhan

[22]  On 26 June 2002 Nabhan offered the applicant 4,000 tablets at $17 each.  On 6 July Nabhan offered the applicant a further 6,000 tablets of a different make.  Between 17 and 19 July Nabhan attempted to buy 10,000 tablets from the applicant.  While attempting to fulfil the order the applicant supplied 500 tablets to Nabhan.  Then on 20 July 2002 Nabhan offered to sell the applicant an unspecified number of tablets of a particular make.  On 25 July Nabhan told the applicant he had procured a large supply of a certain make of ecstasy tablet and offered 10,000 of them to the applicant at $18 each.  On 29 July Nabhan again offered to sell the applicant tablets of a particular make.  The applicant agreed to take 5,000 tablets.  Then on 31 July 2002 the applicant offered to sell Nabhan up to 15,000 tablets.  A sample was provided and Nabhan told the applicant he would buy them all in 5,000 tablet lots.  On 1 August 2002 the applicant and Nabhan discussed the manufacture of ecstasy tablets.  Nabhan claimed that he could procure as many as 100,000 tablets.  The applicant said he could sell 20,000 of them.  On 8 August the applicant told Nabhan he was in contact with someone who could supply tablets of a new make.  Nabhan ordered 5,000 if the price was $17.50 per tablet.

Dealings with Kostopoulos

[23]  On 13 September 2002 Kostopoulos told the applicant he expected shortly to receive 5,000 tablets and the applicant asked to be supplied with 1,000.  On 20 September the applicant told Kostopoulos he had access to 5,000 tablets and offered 2,000 of them to Kostopoulos who declined to buy.  On 7 October the applicant told Kostopoulos that he had recently bought 1,000 tablets for $22 each and on-sold them in lots of 100 at $28 each. 

[24]  The covert investigation ended in October 2002 when a very large quantity of methylamphetamine consigned to Nabhan and Kostopoulos was seized.  A number of the drug dealers identified in the course of the investigation were arrested.  Investigators spent much time analysing and collating the information collected during the operation and preparing prosecution briefs.  Through the course of the analysis and collation other persons were arrested.  The applicant was asked to attend at the Southport police station for an interview on 12 May 2004.  He refused and was arrested.

[25]  In passing sentence the learned primary judge referred to the judgment of Muir J (with whom Williams and Jerrard JJA agreed) in R v Bradforth [2003] QCA 183 at [29]:

"Major determinants of penalty in trafficking cases include the type of drugs supplied, the quantity of the drugs, their value, the nature of the venture or undertaking, and whether the activities are commercial or are engaged in to feed a habit. In all cases, however, regard must be had to the maximum penalties imposed by statute and the recognition by the Legislature and the courts that the purveying of drugs of the nature of those under consideration, however motivated, has the potential to cause much individual suffering, as well as social harm and decay."

Bradforth trafficked in cocaine, MDMA and methylamphetamine.

[26]  Her Honour continued:

"… the maximum penalty for these charges with respect to the trafficking and count 5, it’s 20 years and with respect to counts 2, 3 and 4, it’s 15 years.  A maximum penalty must mean something.  … this was serious trafficking in large amounts of drugs on a wide scale.  It was not governed by anything except the need to have some money.  It is not apparent that you were so dependent upon unlawful drugs that you needed to engage in the way in which you did."

[27]  The applicant's primary submission is that the sentence of 10 years imprisonment is manifestly excessive when compared to the sentences imposed in similar cases.  Those cases referred to were:

 R v Saunders [2007] QCA 93;

 R v Rizk [2004] QCA 382;

 R v P [2004] QCA 365;

 R v O'Brien [2006] QCA 482;

 R v Donnelly & Corbic [2007] QCA 77;

 R v Rizk & Raciti [2004] QCA 359;

 R v Elizalde [2006] QCA 330;

 R v Betham, Dutney J Indictment 666/2006.

[28]  It was submitted that an analysis of those cases shows the sentence imposed on the applicant to be outside the acceptable range for the nature of the applicant's offending.  The submission stresses that the applicant was convicted of trafficking in a Schedule 2 drug only and that there is some uncertainty about the number and value of the transactions that were completed.

[29]  It was submitted that the sentencing judge assessed the appropriate range of penalty to be between 10 and 12 years imprisonment and imposed 10 years after allowing for the plea of guilty and other circumstances of mitigation personal to the applicant.  The starting range was said to be too high.  It was, the submission went on, an error following on the judge's acceptance of some remarks made by McPherson JA in Raciti that the sentencing range for trafficking of cases of the kind there in question was between 10 and 12 years.

[30] Raciti was convicted of trafficking in MDMA, methylamphetamine and cocaine.  The last mentioned drug is and always has been a Schedule 1 drug, trafficking in which carries a maximum penalty of 25 years imprisonment.  In fact most if not all of the cases relied upon for comparison involved trafficking Schedule 1 and Schedule 2 drugs.  This, it was submitted, made them more serious than the applicant's offending and the range of 10 to 12 years as suggested by those cases inappropriate for trafficking only in a Schedule 2 drug.  The submission was that the appropriate range for such trafficking was eight to nine years.

[31]  The approach favoured by this submission calls for an analysis of other cases of such exactitude, and a comparison of such precision, that I frankly doubt are attainable.  Moreover I question the utility of this approach.  It is, in my respectful opinion, salutary to bear in mind the remarks of the Chief Justice (with whom Jerrard and Keane JJA agreed) in Klasan [2007] QCA 268 at [34]:

"Also, with the sentencing of multiple offenders at this level, suggestions that disparate sentences should be susceptible of precise arithmetic reconciliation should be rejected. In addition, some allowances must in the end be made for inevitable differences in the legitimately varying approaches of respective Judges to these value judgments."

[32]  What McPherson JA actually said in Raciti was:

"… the effect of the decision in Bradforth is to suggest a sentencing range of between 10 and 12 years in trafficking cases of its kind."

Two points should be noted: the range is a "suggestion"; limited to "cases of its kind".  There will often be variation within a kind, and debate whether two cases are truly of the same kind.

[33]  Another difficulty with this approach is that in undertaking the comparison one is obliged to rely upon the necessarily summarised and condensed statements of fact which appear in the judgments.  A fuller examination may well show that cases relied upon as comparable are not so in fact.  Atkinson J has concluded that the applicant’s criminal misconduct was less serious than that in R v Elizalde [2006] QCA 330.  The conclusion may be justified by reference to the reasons for judgment, but the fact is that Elizalde (whom I sentenced) was engaged in less extensive trafficking than the applicant.  He was primarily a supplier of MDMA though he did, on occasions, supply cocaine, a Schedule 1 drug.  His turnover for the four and a half months of his trafficking was $100,000.  The actual transactions which he effected were described by Mullins J, on appeal, as “relatively modest”.  Elizalde was not a subject of the investigation as the applicant was.  His activities came to light incidentally from the interception of the conversations between the applicant and those with whom he dealt.

[34]  What is important in the exercise of the sentencing discretion are the circumstances identified by Muir J in Bradforth.  The task of this court on an appeal from such a discretion is not to determine whether the most appropriate sentence has been imposed or, whether the sentence most consistent with other similar cases has been imposed, and, if not, to substitute another sentence for the one actually imposed.  It is to determine whether the sentencing discretion has miscarried and, where there are no errors of fact or law in the reasons given for the sentence, whether the sentence itself discloses error by being unreasonable: or beyond the permissible range of sentence for the offence and the circumstances of the offender; or manifestly excessive.  The terms are interchangeable.

[35]  The process of sentencing is always assisted by reference to comparable cases to achieve such consistency as is possible in the administration of criminal justice, and to avoid injustice in a particular case.  In my opinion comparisons can only be approximate and cannot unduly constrain the exercise of the sentencing discretion which must take account of all relevant factors which vary considerably from case to case.

[36]  Raciti was imprisoned for 11 years for trafficking, as I mentioned, MDMA methylamphetamine and cocaine.  He seems to have dealt principally in MDMA.  Bradforth was imprisoned for 12 years, reduced on appeal to 10 years, for trafficking in the same three drugs.  Saunders was sentenced to eight years, reduced on appeal to six, for trafficking in MDMA and methylamphetamine.  His dealing was far less extensive than the applicant’s.  He sold tablets in lots varying in size from 10 to 1,500.  He seems to have been involved in only one large supply, 9,000 MDMA tablets with a value of about $180,000.  On appeal the court noted that a head sentence of at least 10 years would have been appropriate.  Rizk was also sentenced to eight years imprisonment reduced on appeal to six.  He was involved in Raciti's enterprise and was in effect Raciti's agent and subordinate.  In that lesser role he was involved in substantial drug transactions.

[37]  I do not accept the submission that the maximum penalty that should be imposed on one who traffics on a very large scale, buying and selling, or negotiating to buy and sell, tens of thousands of MDMA tablets for amounts totalling several hundred thousand dollars is nine years imprisonment.  Nor do I accept that the sentences actually imposed in Bradforth and Raciti, and the other cases, of between 10 and 12 years for offenders who trafficked in MDMA as well as a Schedule 1 drug has that consequence.

[38]  The relevant features here can be stated shortly.  The most important is the sheer scale of the applicant's criminal enterprise which was very large indeed, as appears from the number, frequency and volume of transactions negotiated and/or completed.  The applicant was not addicted to drugs and compelled by his addiction to deal in them for his own needs.  He was engaged in a commercial enterprise for profit.  His offending was persistent and continued after he had noticed that the criminal activities of some of his associates had been detected.  He committed the offences whilst subject to a suspended sentence of imprisonment. 

[39]  Neither by reference to the comparable cases nor to the facts of the offence can it be said that her Honour erred in the exercise of the sentencing discretion, or that the sentence imposed was beyond the appropriate range.  Indeed it should be remembered that the sentence imposed was distinctly merciful in that the activated suspended sentence was ordered to be served concurrently rather than cumulatively as would in most cases be the proper order.

[40]  It is necessary to refer briefly to the applicant's other complaints.  The first is that the sentencing judge did not give adequate consideration to his plea of guilty.  The basis for the submission is a remark made in the course of argument that a plea of guilty in a serious case does not have much bearing on the sentence, and that Her Honour did not express the degree to which the plea of guilty mitigated the sentence.

[41]  The remark made arguendo is accurate.  There are a number of circumstances which diminish the importance of a plea of guilty.  The seriousness of an offence and the need for condign punishment is one.  As to the failure to quantify the amelioration of sentence by reason of the plea it is enough to point out that s 13 of the Penalties Act does not require it and that in any case precise quantification is impossible.

[42]  The primary judge noted relevantly that the plea of guilty was a factor tending to lessen the sentence because it had saved the court the expense and organisation of a three week trial.

[43]  The next point is the delay between the commission of the offence and the sentence and the "rehabilitative progress" the applicant made in that time.  Her Honour declined to reduce the sentence on this ground noting that there was no "real element of unfairness" in the prosecution.

[44]  The applicant was committed for trial in mid 2005.  He had indicated that he would plead guilty to the charges brought against him and a sentence hearing was contemplated for September 2006.  The applicant then changed his mind upon learning that the prosecutor intended to allege that his involvement was relatively more serious than had previously been thought.  The applicant then indicated that he would contest the charges at a trial.  It was only in May 2008 that the applicant confessed his guilt to the charges preferred against him and obviated the need for a trial.  The lapse of time was caused by the need to review voluminous transcripts and collate their content to individual offenders.

[45] Lapse of time between the commission of an offence and sentencing is not a mitigating factor unless the delay had resulted in some unfairness to the offender.  A sentence should be mitigated:

1. where the delay between apprehension or indication of prosecution and sentence caused some curtailment of liberty or damage to reputation or placed the offender in a state of uncertainty and anxiety; and

2. where in the period of the delay the offender demonstrated rehabilitation or substantial progress towards rehabilitation.

See R v L; ex parte Attorney-General [1996] 2 Qd R 63.

[46]  It is only the second consideration which is relied upon by the applicant.  It is pointed out that during the time between the cessation of his drug trafficking and conviction he had committed only two minor breaches of his bail condition and had achieved substantial rehabilitation.  He had commenced his own business as a handyman and led a productive life.

[47]  The submission overlooks the point that the applicant was not a man in much need of rehabilitation.  He was not a drug addict nor in any real sense a criminal.  He had one conviction, certainly for a serious offence, but its commission was aberrant and out of character.  He appears to have been generally of good character as shown by his work history, family background and absence of criminal activity, as well as by his payment of full restitution to his employer.

[48]  An offender’s rehabilitation is of less relevance in cases of drug trafficking for the reason that the primary aspects of sentencing for such offences are punishment and deterrence, or denunciation and deterrence, as was noted in R v Tilley; ex parte A-G [1999] QCA 424, before going on to state that:

“... circumstances personal to the offender will ordinarily not weigh heavily in an accused’s favour… [though a] plea of guilty and its consequent saving of public resources should ... usually lead to a discernible amelioration in the penalty.”

I would add that protecting the public from the depredations upon it caused by extensive drug dealing is also important.

[49]  This Court has pointed out in several cases that the penalty for trafficking in drugs must be such as to make the risk of engaging in the activity outweigh its rewards.  If rehabilitation, measured by an offender’s good behaviour between arrest and sentence, results in a substantial reduction in penalty the balance between risk and reward will tilt in favour of reward.

[50]  This was a case of a man, not quite young, who consciously turned to a despicable crime for no reason other than personal profit.  Once apprehended he appreciated the seriousness of his predicament and the pointlessness of further offending.  His is not properly a case for rehabilitation.  R v L has no application.

[51]  I would refuse leave to appeal against sentence.

[52]  ATKINSON J:  On 30 May 2008, the applicant was convicted on his own plea of guilty on one count of trafficking in a dangerous drug (Count 1), three counts of supplying a dangerous drug (Counts 2, 4 and 5) and one count of possessing a dangerous drug (Count 3).  The dangerous drug in which he unlawfully trafficked was methylenedioxymethamphetamine (“MDMA”) commonly referred to as ecstasy.  It was then a drug found in Schedule 2 of the Drugs Misuse Act 1986 (Qld).  The period of the trafficking was slightly less than two months from 25 June to 20 August 2002.  Count 2 related to the supply of MDMA on 27 June 2002; count 3 to the possession of MDMA on 2 July 2002; count 4 to the supply of MDMA on 4 July 2002; and count 5 to the supply of methylamphetamine on 5 August 2002.  He was sentenced to 10 years imprisonment on count 1; five years imprisonment on each of counts 2, 4 and 5; and two years imprisonment on count 3.  All sentences were ordered to be served concurrently.  He has applied for leave to appeal against the sentence.

[53]  The maximum penalty for trafficking in MDMA and for supplying methylamphetamine was 20 years imprisonment.  The maximum period of imprisonment for supplying MDMA and for possessing MDMA was 15 years.

[54]  The circumstances of the applicant’s offending behaviour are set out in considerable detail by Chesterman JA.  A summary which the Crown accepted as accurate was set out in the applicant’s submissions.

[55]  Count 1 concerned all of the dealings which the applicant had with a number of other offenders regarding the wholesale purchase or sale of ecstasy tablets when he was the target of an undercover operation conducted by the National Crime Authority (later renamed the Australian Crime Commission).  The other offenders with whom he dealt or who were detected by the same undercover police operation included Mayo, Betham, King, Mundy, Nabhan, Brown, Sabine, Sullivan, Nardone, Elizalde, Kostopoulos, Raciti and Rizk, many of whom have been sentenced by the Supreme Court.

[56]  The applicant’s telephone was intercepted between 26 June 2002 and 1 August 2002.  In early July 2002, a shipment of 6,500 ecstasy tablets (which the applicant had arranged) was intercepted by police en route to the applicant.  Subsequent to that interception, the applicant changed his mobile phone and continued with the same behaviour for the remainder of the period during which he was monitored, that being 10 July 2002 until 20 August 2002.

[57]  At the end of that monitoring period, the applicant continued to be detected on other intercepted telephone lines belonging to some of his associates who were involved in wholesaling of the drug, ecstasy.  He was not charged with any criminal activity in respect of any period after 20 August 2002.

[58]  The applicant was involved in discussions about, and the actual arranging of, the purchase and distribution of thousands of ecstasy tablets.  Such tablets would have been worth many hundreds of thousands of dollars (6,500 tablets which were seized in early July, were said to have had a value of $117,000).

[59]  The applicant devoted extensive and time consuming efforts in arranging for the purchase and distribution of the drugs.  On some occasions, it was possible to discern that successful transactions had been completed.  On other occasions investigators foiled the transaction.  On others again, the transactions simply did not take place and for the remainder, it was not possible to say whether the transactions took place or not.

[60]  Count 2 related to the supply of 3,000 ecstasy tablets purchased by the applicant from Mayo and sold by him to Betham on 27 June 2002 for $18 each.

[61]  Count 3 related to the possession of six ecstasy tablets on 2 July 2002 which were used as samples by the applicant to promote very large deals.  The percentage of MDMA in those tablets was 15.8 per cent.

[62]  Count 4 related to 6,500 tablets intercepted on 4 July 2002 while they were in King’s possession.  The total amount of pure MDMA in those tablets was 462.4g.

[63]  Count 5 related to the supply of an ounce of methylamphetamine purchased from Mundy and supplied to Nabhan on 5 August 2002.

[64]  He pleaded guilty to the offences.  There was a considerable delay before the matter was heard in the Supreme Court, most of which was attributable to the prosecution.  He was 30 years old at the time of his offending.  He had one previous conviction when he committed the offences and two minor breaches of bail subsequently.  His prior offence was for fraud as an employee for which he was sentenced on 21 March 2001 to two years imprisonment suspended for three years and compensation was offered and ordered to be paid.  The compensation was paid.  The present offences were committed in breach of that suspended sentence.

[65]  He had otherwise led a law abiding life.  In December 2000, he was seriously injured whilst a passenger in a stationary vehicle which left him with physical and psychological injuries, pain and financial problems.  He then started using ecstasy.  He developed a gambling habit.  Since 2003, he has not used illicit drugs, has stopped gambling and obtained steady employment.  By the time of sentence he was self-employed as a handyman.  The psychologist, Peter Perros, concluded his report tendered at the applicant’s sentence by saying that since his arrest the applicant was a “changed man”.  He had made significant gains in his physical rehabilitation, overcome his gambling and drug habits, was dealing effectively with his chronic pain, and was making a concerted effort to build up his business.  He was in a warm and supportive relationship.

[66]  His plea of guilty assisted in the administration of justice by saving the cost and uncertainty of what would have been a three week trial.

[67]  Apart from the seriousness of the offending with which he was charged, there were at least two other factors that were particularly relevant to the sentence to be imposed.  The first factor was the sentences imposed on the other offenders which gives rise to questions of parity; and the second factor was his personal circumstances relevant particularly to personal deterrence and rehabilitation.

Parity

[68]  As can be seen with regard to sentences imposed on other offenders, the applicant was not the most serious offender caught by this undercover operation.  Nor was he the least serious.

[69]  Mayo is an example of a less serious offender.  He pleaded guilty on 16 August 2005 to trafficking in MDMA for a period of one month.  He was sentenced in relation to his dealings with King.  He was sentenced to six years imprisonment with a recommendation for parole after serving 18 months.  He was 36 years old and had no criminal history.  Another offender, more serious in some ways and less serious in others, was Rizk to whom I will return.

[70]  More serious offenders included Nabhan, Kostopoulos and Raciti.  Nabhan was sentenced on 21 March 2006 on his own plea of guilty to trafficking in the dangerous drugs cocaine, methylamphetamine, MDMA and GHB.  He therefore trafficked in both Schedule 1 and Schedule 2 drugs.  Kostopoulos was his superior.  Nabhan also independently arranged the purchase of, inter alia, five kilograms of cocaine and 14,000 ecstasy tablets.  Nabhan had a minor criminal history involving possession of drugs.  On 30 January 2007 he also pleaded guilty to two counts of unlawful possession of methylamphetamine with a circumstance of aggravation and MDMA.  It was not an early plea and he had tried to withdraw his plea.  He was sentenced to 13 years imprisonment for the offence of trafficking and concurrent sentences of 12 months for the possession offences.

[71]  Kostopoulos was also convicted on his own plea of guilty on 21 March 2006 to trafficking in the dangerous drugs cocaine, methylamphetamine, MDMA and GHB.  On 5 April 2007, he was sentenced to a term of imprisonment of 15 years to be served cumulatively with the 21 month balance of suspended terms of imprisonment which had been imposed on 18 August 2000 for earlier drug offences.  Kostopoulos controlled and financed a trafficking operation at the highest level.  Kostopoulos was a violent man using threats to recover business debts and using people as “guinea pigs” on whom drugs could be tested.  He was motivated solely by profit.  The applications for leave to appeal against sentence of Nabhan and Kostopoulos were heard together in R v Nabhan; R v Kostopoulos [2007] QCA 266.  Both applications were unsuccessful.

[72]  Raciti was sentenced to 11 years imprisonment for trafficking on his plea of guilty to trafficking in MDMA, methylamphetamine and cocaine during a four month period and imprisonment for one year on each of one count of possession of methylamphetamine with a circumstance of aggravation, possession of MDMA with a circumstance of aggravation, possession of amphetamine with a circumstance of aggravation and possession of money obtained by trafficking.  Raciti trafficked in the Schedule 1 drugs, cocaine and methylamphetamine, together with the Schedule 2 drug, MDMA.  The period of trafficking was four months.  Raciti was 39 to 40 at the time he was offending and had drug convictions in 1983 and 2000 when a period of 30 months probation was imposed.  He had offended whilst on bail and whilst on probation.  He was found with a substantial sum of money in his possession.  In the case of Raciti, McPherson JA considered that his successful efforts of rehabilitation were relevant but not “such as to require a serious reduction in the penalty that ought to be imposed.”[1]  His appeal against sentence for trafficking in these Schedule 1 and Schedule 2 drugs over a four month period was unsuccessful.

[73]  Other more serious offenders included Betham and Elizalde.  Betham was convicted of one count of trafficking in the dangerous drugs MDMA and cocaine.  The trafficking period was 16 months.  His level of involvement was significant and the quantities involved were large.  Both Schedule 1 and Schedule 2 drugs were involved and the period of trafficking was very long.  He was imprisoned for 10 and a half years and the learned sentencing judge in his sentencing remarks noted that other participants in this range of offending appear to have received sentences between nine and 15 years depending upon their level of involvement.

[74]  In R v Elizalde [2006] QCA 330, an application for leave to appeal against a sentence of nine years imprisonment for trafficking in the dangerous drugs MDMA, methylamphetamine and cocaine for a period of four and a half months, and one count of possession of cocaine with a circumstance of aggravation was dismissed.  MDMA was a Schedule 2 drug, but the other two drugs are found in Schedule 1.  He was described as a large scale drug dealer for profit as a wholesaler.  The seriousness of his offending was described at [8] as follows:

“The sentencing judge concluded that the applicant was a large scale drug dealer and stated:

‘It is apparent that you were prepared to sell very large amounts of MDMA, up to 5,000 tablets at a time, for a total turnover of about $100,000.  There were instances when you proposed to supply smaller amounts for a smaller price but it is clear that you were close to suppliers or manufacturers of MDMA and that you were prepared to, and were looking to, sell large amounts of drug for large amounts of money.’

The sentencing judge acknowledged that it was not clear precisely what transactions the applicant completed, what profits were made by him or what sums of money passed through his hands, but accepted that on a number of occasions the applicant did supply cocaine, MDMA and methylamphetamine for substantial amounts of money.  The sentencing judge stated that it was appropriate to deal with the applicant on the basis that he deliberately dealt in drugs for his own profit in a substantial way as a wholesaler.”

[75]  He persisted in offending even when he became aware he had attracted police attention when he was found in possession of a significant amount of cocaine.  In an approach approved by the Court of Appeal, the sentencing judge took account of Elizalde’s rehabilitation since his arrest, his future prospects and his early indication of a guilty plea to reduce what would otherwise have been a sentence of 11 years imprisonment with an automatic declaration that he had been convicted of a serious violent offence to a sentence of nine years imprisonment without such a declaration.

[76]  In R v Rizk [2004] QCA 382, the Court of Appeal referred to the usual sentencing range for “large scale trafficking” in Schedule 1 and Schedule 2 drugs as being 10 to 12 years imprisonment and when it was confined to Schedule 2 drugs, eight to 10 years imprisonment.[2]  As Rizk was a relatively young man who was addicted to ecstasy and did not apparently have any criminal record, his sentence was reduced on appeal to six years imprisonment with a recommendation for parole after serving two years of his sentence.  Rizk’s period of trafficking was between two and a half and three months.

[77]  It is relevant that in this case the trafficking was for a relatively short period and only in Schedule 2 drugs.  Sentences for trafficking in Schedule 2 drugs alone do of course tend to be lower than those for trafficking in Schedule 1 drugs alone or Schedule 1 and Schedule 2 drugs together.

[78]  An example of that sentencing range was found in the recent Court of Appeal decision of R v Saunders [2007] QCA 93.  The applicant trafficked in MDMA and methylamphetamine for a period of six months at a time when they were both Schedule 2 drugs.  He was a man in his late 30s who had a number of convictions interstate for offences including theft and burglary and had drug convictions in Queensland as well as a conviction for assault occasioning bodily harm and robbery with actual violence which was committed before the drug trafficking.  It appears that he trafficked in lesser quantities of MDMA in any single transaction than the applicant in this case but when he was apprehended, the police found a bag in his possession which contained 101.382g of methylamphetamine, 2,361.5g of MDMA and 17.705g of cocaine.  A search warrant executed a month later at the house in which he lived found 139 MDMA tablets containing 12.762g of MDMA.  An appeal against the sentence imposed for trafficking of eight years imprisonment with a serious violence offence declaration was allowed.  Because the learned sentencing judge did not give due consideration to whether or not to impose a serious violent offence declaration, which did not automatically follow from the sentence of eight years imprisonment, the sentencing discretion was held to have been miscarried.  Muir J held at [22]:

“Although the nature and extent of the applicant’s offending is grave and merits condign punishment, there is little about the circumstances surrounding the offences which distinguish them from those involved in many other cases of this type.  In this regard it is relevant that the trafficking offence is in respect of a schedule 2 drug.”

The serious offence declaration was removed but the sentence of eight years imprisonment retained.

[79]  When one has regard to the sentence involved for co-offenders, it can be seen the sentence of 10 years imprisonment, with an automatic declaration that he has been convicted of a serious violent offence and therefore with no parole eligibility date, is excessive particularly when one considers the Court of Appeal decisions of Elizalde and Rizk.  It is clear that the present applicant’s criminality falls between them.  Like Elizalde, he was a wholesaler in drugs.  Unlike Elizalde, the applicant was convicted of trafficking in a Schedule 2 drug, not Schedule 1 and Schedule 2 drugs, and for a two month period not four and a half months as in the case of Elizalde.  Elizalde was convicted of a more serious office and his period of trafficking was longer although the quantity of drugs in which Elizalde trafficked was not as great.  Considerations of parity suggest that a sentence of nine years imprisonment would have been more appropriate when one considers the sentences imposed on the applicant’s co-offenders.

Personal factors

[80]  Deterrence is significant in a case such as the present particularly as the applicant continued with his drug trafficking even after the police had intercepted a drug shipment although not after his arrest.  As Keane JA observed in R v Kostopoulos at [43]:

“While the consideration of deterrence may be of little relevance in relation to some offences and some offenders, it is clearly an important consideration in relation to those who conduct criminal enterprises solely for commercial gain.  This is not a case of a crime of passion or of a crime committed on the spur of the moment.  In the case of large scale commercial drug traffickers, such as Kostopoulos, the sanctions of the criminal law will only have the desired effect of suppressing commercially motivated crime if it is made clear to the entrepreneurs that the risks of the enterprise do not justify the rewards.”

Rehabilitation

[81]  However, also significant in this case was the fact that the applicant had not committed any further criminal offences between the end of the period of trafficking in August 2002 and the time of sentencing in May 2008, a period just three months short of six years.  I find myself in respectful disagreement with the views expressed by Chesterman JA as to the effect on sentence of rehabilitation.  The cessation of offending between the time of detection and the time of sentence is a relevant factor in sentencing if it shows that there has been rehabilitation because the detection of the offender has served to deter him from further offending and lessens the need for protection of the community from an offender who is continuing to offend.

[82]  It is relevant even when the person is not a drug addict or “in any real sense a criminal”.  As King CJ said in Vartzokas v Zanker (1989) 51 SASR 277 at 279:

“Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law abiding citizen.  It is not confined to those who fall into wrongdoing by reason of physical or mental infirmity or a disadvantaged background.  It applies equally to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing.”

[83]  In R v D’Arcy [2001] QCA 325, rehabilitation was regarded as relevant to the sentence imposed even where the offender did not show remorse.  Chesterman J observed of an offender who was sentenced many years after his offending behaviour at [170]:

“Remorse, when present, is conventionally regarded as a reason to mitigate a sentence, but that is so whenever the offender is sentenced.  Its absence does not mean that one should disregard evidence of a substantial period of law-abiding and socially useful living.”

[84]  In R v Donnelly and Corbic [2007] QCA 77 Jerrard JA considered that it was relevant that the applicants who both pleaded guilty to trafficking in the dangerous drug MDMA and trafficking in the dangerous drug ephedrine for a period of more than two years had been on bail for nearly three and a half years and neither reoffended during that period and both were employed.  Muir J also recognised that the fact that neither applicant reoffended in the three and a half year period when he was on bail and that during that time each of them continued in his employment and supported his family was relevant to the sentence imposed.[3]  A sentence of six years imprisonment with a parole eligibility date after two years[4] was substituted for the original sentence for trafficking in MDMA of eight years imprisonment with a recommendation for eligibility for post-prison community based release after two years and eight months.

[85]  The instant case is an example of the type of case referred to in R v L; ex parte Attorney-General [1996] 2 Qd R 63 at 66:

 

“where the time between commission of the offence and sentence is sufficient to enable the Court to see that the offender has become rehabilitated or that the rehabilitation process has made good progress.”

[86]  The court in that case gave a number of examples of support for that proposition in the Supreme Court of New South Wales, in Todd [1982] 2 NSWLR 517 at 519, 520; in the High Court in R v Mill (1988) 166 CLR 59 at 64; in the Court of Criminal Appeal in Victoria in Quinlivin (Court of Criminal Appeal in Victoria No. 291 of 1994) in the Court of Criminal Appeal in Western Australia in Duncan (1983) 9 A Crim R 354 and in Queensland in Bell (1981) 5 A Crim R 347 at 351.

[87]  A more recent example of the effect of rehabilitation by an offender between the offending and the time of sentence is found in R v Tiburcy, Gardner and Zeuschner [2006] VSCA 244; (2006) 166 A Crim R 291 where the Court of Appeal in Victoria considered the effect on sentence of a delay of three years between arrest and sentencing on charges of drug trafficking.  Each offender had each been on bail for a substantial part of that period and each had used that time “wisely and productively”.  Maxwell P, with whom the other members of the court agreed, referred[5] to the “very considerable public interest in the rehabilitation of offenders.”  Referring to an earlier decision of that court in R v Cockerell (2001) 126 A Crim R 444 where there had been a delay between offending and sentencing during which the offender had undertaken “a relatively lengthy period of rehabilitation”, Maxwell P held:[6]

“As Chernov JA made clear in Cockerell, the sentencing court looks to the future as well as the past.  What has occurred cannot be undone, and appropriate penalties must be imposed.  But there is very great benefit to the community at large, as well as to the individuals themselves and their immediate families, if future criminal activity can be avoided.”

[88]  Although rehabilitation from drugs or the overcoming of serious social or economic disadvantage may be particularly noteworthy in this context, the principle is not restricted to those who have suffered from such disadvantage.  The value of rehabilitation is that it is in the public interest if offenders cease offending after they have been detected or punished as it is in the community’s interest that they no longer engage in criminal offending behaviour.

[89]  Of course the weight to be attached to the rehabilitation between offending and sentence will vary depending on the circumstances of the case and in a case of serious crime such as this, rehabilitation cannot overwhelm the appropriate sentence to be imposed.  But neither can it be said to be irrelevant.  The evident rehabilitation of this applicant demonstrated by his overcoming his gambling and drug habits, dealing effectively with his physical injuries and chronic pain, obtaining and keeping steady employment and most important of all, refraining from further offending is relevant to the sentence which should have been imposed on this offender.

[90]  I would order that the application for leave to appeal against sentence be allowed, the appeal allowed and a sentence of nine years imprisonment imposed in place of the ten year imprisonment imposed on count one of the indictment.  In view of the rehabilitation demonstrated in the almost six years between offending and sentencing, I would not impose a serious violent offence declaration.  I would not otherwise disturb the sentence imposed.

Footnotes

[1] Raciti [2004] QCA 359 at 8.

[2] See also R v Bradforth [2003] QCA 183.

[3]At [42].

[4]The parole eligibility date was fixed at 11 July 2008 at [44].

[5] At [16].

[6] At [15].

Close

Editorial Notes

  • Published Case Name:

    R v Willoughby

  • Shortened Case Name:

    R v Willoughby

  • MNC:

    [2009] QCA 105

  • Court:

    QCA

  • Judge(s):

    de Jersey CJ, Chesterman JA, Atkinson J

  • Date:

    28 Apr 2009

Litigation History

Event Citation or File Date Notes
Primary Judgment - - Criminal
Appeal Determined (QCA) [2009] QCA 105 28 Apr 2009 -
Special Leave Refused [2009] HCATrans 242 02 Oct 2009 -

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)