SUPREME COURT OF QUEENSLAND

1. THOMAS JA: This is an application for leave to appeal against sentences imposed for drug offences which include trafficking in methylamphetamine and producing methylamphetamine in excess of the quantity prescribed in the third schedule of the Drugs Misuse Regulation 1987.  On the trafficking charge the applicant was sentenced to eight years imprisonment with a recommendation for parole after three years.  On the other three counts on the indictment the learned sentencing judge did not impose any penalty other than the recording of convictions.  As required by section 156A of the Penalties and Sentences Act 1992 the sentence was made cumulative upon an earlier sentence in relation to which the applicant was on parole when he committed the present offences.

2. The applicant is a 51 year old man. He has a relevant though sporadic criminal history. In 1972 he was convicted of four counts of stealing, two of unlawful use of a motor vehicle and three of false pretences, and, again in 1981, of unlawful use of a motor vehicle. None of the sentences imposed on those matters was custodial. However in May 1993 he was convicted of very serious charges of misappropriation in respect of which, after appeal, he was sentenced to eight years imprisonment with a recommendation for parole after four years. The misappropriations were effected when he was the accountant for Black and White Cabs. The circumstances are reported in the decision of R v Corrigan^[1].

3. After serving about four years of that sentence he was released on parole (30 May 1997). Almost immediately he commenced producing methylamphetamine for a drug dealer named Hapeta. He had become friendly with Hapeta while serving imprisonment on the misappropriation convictions and had been encouraged by Hapeta and others to become involved in producing methylamphetamine after he was released. For the next 13 months he was busily engaged in producing and trafficking in methylamphetamine. His activity was terminated by his arrest. Over that period he produced an average of 20 ounces of methylamphetamine per week for an average return of $3,000 per week. Over the trafficking period it is estimated that he would have performed up to 50 “cooks”, produced in excess of two kilograms of the drug and received over $150,000 for his efforts. Approximately midway through that period (early 1998) he started to feel ill from the process. In order to enable Hapeta to continue to receive the desired supply, he showed one of Hapeta’s close associates (Ms Tilley) how to produce the drug. However he maintained some degree of involvement and control by retaining control of chemicals and equipment. When arrested on 11 July 1998 he had $1,050 in his wallet which had been recently given to him by Hapeta for work done.

4. Surveillance had resulted in the police obtaining transcripts of conversations between the applicant and Hapeta recorded over the period June/July 1998. These reveal a very close association with Hapeta and contain an overwhelming case of his conduct of a business of production and supply of methylamphetamine.

5. He was returned to custody on the 1993 offences and his parole was revoked. By the time of sentence he had served a little over a further two years of the 1993 sentences, but some further time remained to be served before the present sentences would commence. Counsel for the applicant, Mr A Kimmins, submitted that section 156A operated very severely upon him. The combined effect of the misappropriation offences and of the present sentences will result in total sentences of 16 years imprisonment of which he will be required to serve 12 years unless some special order is made by the Queensland Community Corrections Board under section 190 of the Corrective Services Act 1988.

6. One of the main difficulties in the present matter is in determining the extent to which the applicant should be given credit for co-operation with law enforcement authorities. There is no doubt that he pleaded guilty at committal and that he is entitled to appropriate benefit for an early plea of guilty, although this is tempered by the strength of the case against him. Equally there is no doubt that he offered to give evidence for the Prosecution in a particular matter and that he was rightly given a relatively modest benefit as the result of a section 13A procedure. There is however some contest as to the extent to which benefit should have been allowed in respect of past co-operation at the time of sentence. Evidence was tendered on appeal on this subject and the question whether it should be received should now be addressed.

Evidence of past co-operation

7. The learned sentencing judge took into account that the applicant had co-operated with authorities and noted that he provided statements to police in relation to Hapeta, Miss Tilley and Ms Brian. In the event, Hapeta died in custody, and Tilley and Brian pleaded guilty. Her Honour noted that because of the applicant’s past co-operation the Crown did not seek a declaration that he was a serious violent offender. Such a declaration was available as the present offence is a scheduled offence permitting such a declaration to be made. Her Honour acceded to this suggestion, and in the event made no serious violent offender declaration.

8. Despite extensive affidavit evidence designed to show that the applicant’s level of co-operation was greater than that which was presented to the learned sentencing judge, on analysis it consists principally of two matters. Firstly there is a “letter of comfort” signed by the chairperson of the Criminal Justice Commission which was available to be tendered to the learned sentencing judge, but which the applicant’s counsel, after discussion with the applicant decided would be better not presented. That appears to have been the result of a deliberate and reasonable forensic decision in that the letter contained some favourable and some unfavourable matters. The letter included the suggestion that the applicant had made some demonstrably false allegations against Commission staff. Likewise a good deal of the additional material that has been filed, which includes transcripts of the applicant’s conversations with police and investigators may be described as two-edged as the material is capable of suggesting manipulative attempts without a great deal of substance to offer.

9. The only additional matter which it is now submitted should have been brought to the sentencing judge’s attention is the fact that he drew attention to impropriety on the part of three prison officers. One of these, who had purchased a racehorse for a prisoner, subsequently resigned. The applicant gave information in relation to the other two officers when asked by investigators, but later refused to give evidence. The giving of information against prison officers is well calculated to make life difficult for a prisoner, and the risk of offering such information is something that would probably be brought into account in his favour even though, as events turned out, the information was not regarded by the CJC as being of any great value. But the additional impact of such information seems of very slight relevance in the overall pattern of this particular case. In particular it does not clearly outweigh the negative effect of other matters that would need to be examined if the letter of comfort which the applicant now wishes to tender is to be received and evaluated.

10. The application to tender this evidence was based upon R v Maniadis^[2], which recognises that it may be possible for further evidence to be received upon appeal even though it was not “fresh” in the technical sense.  Its reception is based upon the rather broad consideration that if such evidence were excluded there would be a miscarriage of justice.  I do not see the present evidence in that light.  It may be accepted that there may be some difficulty in deciding how to react to the receipt of a “letter of comfort” which is disappointing to an offender who believes that his co-operation has been more valuable than the relevant law enforcement authority is prepared to declare.  But there is an inherent difficulty in proving that co-operation is more valuable to a law enforcement than that authority regards it to be.  The interests of justice in a particular case may require a court to look behind such an assessment, but I do not see the present case as one in which further evidence should be received on such an issue.  Indeed, if received I do not think that the evidence on the whole would place the applicant in any more favourable position.  It seems to me that a reasonable forensic decision was made at the time, and that there is no good reason to re-agitate the matter upon appeal.  I would accordingly rule the additional material to be inadmissible.

11. I now turn to what I regard as the main submissions made by Mr Kimmins on behalf of the applicant. These are that the sentence was excessive and that there is a lack of parity between it and the sentences imposed upon other persons involved in the same criminal enterprise, namely Mrs Tilley and Ms Brian.  Tilley was sentenced to nine years imprisonment and Brian to eight years with parole after three years.  In Tilley’s case a suspended sentence was activated, but it was imposed concurrently.  The difference between that benefit and the disadvantage that the applicant suffered by reason of section 156A of the Penalties and Sentences Act was submitted to be a matter which emphasised the alleged disparity.

Lack of Parity

12. The Attorney-General appealed against alleged inadequacy of Tilley’s sentence^[3] and succeeded in having a serious violent offence declaration attached to the 9 year sentence.  The court acknowledged that Tilley’s conduct in association with Hapeta was “a grave example of high level trafficking in especially serious unlawful drugs … over a substantial period, netting large sums of money”.  Tilley was a constant aider and abetter of Hapeta who was described as being “at the top of the tree of the group”.  He had at least ten regular customers, themselves described as “mid‑level dealers” to whom he supplied heroin and amphetamines.  Tilley handled cash for him and was sometimes involved in the production of methylamphetamine although her production was not as heavy or regular as that of the applicant.  In one particular transaction more than 1½ lbs of heroin was obtained, cut down, and buried for later retrieval.  Tilley had a substantial criminal record, mainly associated with offences connected with prostitution, but her record also includes a serious offence of corruption.  The maximum sentence available in Tilley’s case was 25 years, by reason of the fact that trafficking in heroin (a first schedule drug) was included.  The maximum sentence in the applicant’s case was 20 years, as the trafficking was in methylamphetamine (a second schedule drug).  Tilley’s sentence was framed on the premise that an appropriate starting point would be 11 years’ imprisonment, and that the benefit of her early notification of a plea of guilty should reduce this to nine years.  As already indicated the making of a serious violent offence declaration was considered appropriate.

13. I do not propose to discuss the sentence imposed upon Ms Brian at any length.  Her circumstances are so different from those of the applicant that no genuine sense of grievance could be felt in relation to her sentence of eight years’ imprisonment with a recommendation parole after three years.  Unlike Tilley and the applicant, Brian was an addict and her offending was driven by her addiction rather than by the desire to make money by criminal means.  She had more favourable antecedents and lacked a criminal history of the seriousness of Tilley’s and the applicant’s.  Her sentence is nominally the same as that imposed upon the applicant, although the applicant suffers from the disability of being required to serve his sentence cumulatively with the cancelled parole period of his previous sentence.  Standing alone I do not think that Brian’s sentence could be regarded as presenting any basis for grievance through perceived disparity although it is true that she was involved in more serious crimes and at a higher level than the applicant.  A wide discretion was available to the learned sentencing judge in Brian’s case arising from her special personal circumstances.  However there is more substance in the complaint in relation to Tilley’s sentence.

14. Tilley was involved directly in the heroin trafficking, including the transaction concerning the 25 ounce batch.  Mr Kimmins submitted that Tilley, who handled money for and on behalf of Hapeta was “further up the chain” than the applicant, that she was dealing in a greater quantity of drugs, that she also dealt in heroin which involves a higher penalty than that to which the applicant was subject.  The submission is correct.  Of course the constant and deliberate manufacture of amphetamine and its supply to Hapeta enabling him to deal with it is a very serious matter, but a clear differential remains between the “cook” and those who were the principal traders in that commodity and who also dealt in heroin.

15. The experience of sentencing courts has led to a realisation that methylamphetamine is a far more dangerous drug than was previously recognised and that its usage tends to produce behavioural problems that promote aggressive behaviour and further crime. For this reason more serious sentences have begun to be imposed for dealing in methylamphetamine than previously. However, whilst the legislature provides different levels of punishment for different classes of drug, and in particular while heroin trafficking remains more seriously regarded in the Drugs Misuse Act than methylamphetamine trafficking, it is appropriate that the courts continue to recognise at least some differential between sentences for trafficking in heroin and sentences for trafficking in methylamphetamine.  Also Tilley’s sentence had to take account of her wider contribution to a larger and more wide‑ranging enterprise than the applicant’s.

16. I do not think that any specific reduction can be made for the circumstance that the sentence upon the applicant must be cumulative under s 156A, although it is a matter which emphasises the actual effect of the sentence, and is a circumstance that may incline a court to circumspection in the fixing of the appropriate sentence^[4].

“In such circumstances the courts must pass what seems to be an appropriate sentence on the current offences knowing that it is possible but not necessarily the case that the offender will serve the whole of the earlier term.”^[5]

17. In summary, Tilley was involved in the production, sale and distribution of amphetamine and the sale and distribution of heroin; the applicant was only involved, albeit heavily, in the production of methylamphetamine. To the difference in criminal activity and criminal liability there must be added the fact that the applicant confessed his involvement to police whereas Tilley did not, and that the applicant provided cooperation to the law enforcement authorities while Tilley did not. This co‑operation probably has subjected the applicant to some disadvantage in serving his term, and whilst it was of limited value it is not a matter that is to be dismissed as of no account.

18. With some hesitation I have concluded that these points of distinction are not sufficiently accommodated in the present sentence. It is true that the avoidance of a serious violent offence declaration is a significant benefit. The true comparison is that Tilley has been sentenced to nine years with parole eligibility after 7.2 years while the applicant has been sentenced to eight years with parole eligibility after three years.  However I do not think that the present head sentence can be comfortably reconciled in the circumstances, and it may be noted that some understandable pessimism was expressed on behalf of the applicant in relation to his prospects of obtaining any benefit by way of parole.  Although we were referred to a number of cases, none of them is comparable.  Consistently with a broad range derived from the sentences in Tilley, Walton^[6], Ianculescu^[7] and Everett^[8], the appropriate starting point in the present matter before making allowance for the plea of guilty and for both past and future co-operation would be of the order of nine years.  Whilst a reduction of the order that I propose is more minor than would normally be made on the basis that a sentence is manifestly excessive, in the circumstances of the present case where perceived disparity is in issue I consider that the head sentence should be reduced to seven years and that otherwise the sentence should remain unaltered.

Order

1. Leave to appeal is granted. 

2. The appeal is allowed and the sentence on the trafficking charge in count 1 is varied by replacing the sentence of 8 years’ imprisonment with parole after 3 years (cumulative on the sentence then being served) with a sentence of 7 years’ imprisonment with parole after 3 years (cumulative on the sentence then being served). 

3. The remainder of the sentence and directions thereon will remain undisturbed.

19. MUIR J:  I have read the reasons of Thomas J. I agree with them and with the orders he proposes.

20. ATKINSON J:  I agree with the order proposed by Thomas JA and with His Honour’s reasons.