R v Christensen[2007] QCA 56

SUPREME COURT OF QUEENSLAND

1. de JERSEY CJ: On 3 November 2006, the applicant filed in the Court of Appeal a document purporting to appeal against his conviction and sentence.  The grounds nominated in the document, which are confined to the matter of sentence, read as follows:

“(a)His Honour Justice Helman erred in not allowing a reopening of sentence on 30 October 2006 under an application made under s 188 of the Penalties and Sentences Act 1992 (Qld);

2. His Honour Justice Helman erred in not removing the declaration of a serious violent offender.”

On the same day, the applicant filed an application for leave to call witnesses, and for the issue of subpoenas.

2. The present application concerns sentences imposed on the applicant on 1 November 2001.  He applied for leave to appeal against sentence.  On 22 March 2002, the Court of Appeal refused his applications.  On 12 November 2004, the applicant applied to the High Court of Australia for special leave to appeal, which was refused. 

3. Then on 5 October 2006, the applicant filed an application for the reopening of the sentences imposed on 1 November 2001, under s 188(1)(c) of the Penalties and Sentences Act 1992 (Qld).  Referring to R v Cassar; ex parte Attorney-General [2001] QCA 300, the learned primary Judge refused the application, because it contemplated “a rehearing of the merits of (the) sentence”.  It was not a case “of a slip of the kind referred to in…Cassar…but rather of matters that could have and should have been canvassed on appeal to the Court of Appeal”.

4. The application in relation to the orders of Helman J is incompetent and it should be dismissed.

5. In R v Marriner [2006] QCA 32, it was held there is no right of appeal against an order made under s 188(1)(c) of the Penalties and Sentences Act refusing to reopen a sentence.  That is because, as put by McPherson JA with the agreement of the other members of the court, “no right of appeal against that order is conferred by the Criminal Code or by other legislation investing this Court with jurisdiction to entertain appeals in criminal matters”.

6. Marriner is binding current authority which necessitates the dismissal of the application as incompetent.

7. Further, as the learned primary Judge observed, what the applicant contemplated, in applying under s 188 of the Penalties and Sentences Act, was, in reality, “a rehearing of the merits of (the) sentence”.  Since the Court of Appeal has previously heard such an application on the merits, and refused it, entertaining this purported application would infringe the prohibition that once this Court has decided an application on its merits, the right of appeal conferred by s 668D of the Criminal Code is exhausted, and the Court of Appeal has no jurisdiction to entertain any further appeal.  See R v MAM [2005] QCA 323, R v Corrigan [2001] QCA 401, Grierson v R (1938) 60 CLR 431, Mickelberg v R (1988-9) 167 CLR 259, 287 and R v Smith (1968) QWN 50, 114.

8. I would order that both applications filed on 3 November 2006 be dismissed.

9. JERRARD JA:  In this matter, I have read the reasons prepared by de Jersey CJ, and agree that this Court is bound to rule that Mr Christensen has no right or means of appeal from the refusal to re-open his sentence.  Mr Christensen argued his attempted appeal himself, and claimed to have suffered an injustice.  But that claim is not supported by the material, including his own written argument, and he should face that fact.  Because I had prepared my own reasons for dismissing his purported appeal on its merits before reading the judgment of the Chief Justice, I will publish those reasons, so that Mr Christensen has them.

10. On 29 October 2001, he pleaded guilty in the Supreme Court to a count alleging that between 1 January 1997 and 17 January 2001 he had carried on the business of unlawfully trafficking in the dangerous drugs methylamphetamine and cannabis sativa in Brisbane. His sentence was adjourned, and on 1 November 2001 he pleaded guilty to six further counts of supplying a dangerous drug, two counts of production of a dangerous drug, and one of possession of things used in connection with the commission of the crime of producing a dangerous drug. He was sentenced that same day to 10 years imprisonment. He unsuccessfully applied for leave to appeal against that sentence, ([2002] QCA 113), the application being dismissed on 22 March 2002. On 30 October 2006 the learned judge who had sentenced him on 1 November 2001 heard and dismissed an application to re-open his sentence, which Mr Christensen had brought under s 188(1)(c) of the Penalties and Sentences Act 1992.  The matter that was before this Court was Mr Christensen’s purported appeal against the order refusing to re-open his sentence.  

11. Section 188 of that Act relevantly provides:

“Courts may re-open sentencing proceedings

188(1) If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal –

1. imposed a sentence that is not in accordance with the law; or

2. failed to impose a sentence that the court legally should have imposed; or

3. imposed a sentence decided on a clear factual error of substance;

the court, whether or not differently constituted, may re-open the proceeding.”

The section goes on to provide that when a court does re-open a proceeding, it may re-sentence an offender.

Mr Christensen’s offences

12. The further offences to which Mr Christensen had pleaded guilty on 1 November 2001 were supplying methylamphetamine to another on 18 April 2000, supplying cannabis sativa to another on 24 April 2000, producing methylamphetamine on 11 June 2000 at Cunungra, possessing glassware and chemicals on that same date used in connection with that crime, supplying methylamphetamine to another between 21 December 2000 and 25 December 2000, supplying methylamphetamine to another on 1 January 2001, supplying that drug to another person on 7 January 2001, supplying cannabis sativa to another on 11 January 2001, and producing methylamphetamine between 4 January 2001 and 8 January 2001. The offences of supply and production committed in December 2000 and January 2001 lie at the heart of Mr Christensen’s application to re-open, and the purported appeal.

The original sentence proceeding

13. The learned judge sentencing Mr Christensen on 1 November 2001 was told, without challenge, by the Crown prosecutor that in April 2000 Mr Christensen had arrived at a residence at which a covert police operation was being conducted, and in which operation another person was under investigation. Mr Christensen spoke on that occasion with a covert police operative, and revealed that he (Mr Christensen) was dealing in amphetamines and cannabis. Investigations were then made into Mr Christensen, which disclosed that from 1997 onwards he had a considerable source of income which could not be explained by honest dealings. His principal notional source of income was the purchase and re-sale of second-hand motor vehicles, mostly purchased from Torque Ford at Redcliffe, and he generally lost money on the re-sales. The Crown informed the learned judge that a David Kirk had provided police with a statement, supplied to Mr Christensen’s lawyers, which revealed that Mr Christensen lost money on his considerable purchases and re-sales, and that motor dealers were very pleased to do business with Mr Christensen. Mr Kirk himself had sold amphetamines at Mr Christensen’s encouragement, and his statement declared that from late 1997 through 1998 Mr Christensen was dealing with amphetamines through Mr Kirk.

14. When the first police operation ended in May 2000, Mr Christensen was arrested. The first two counts of supplying methylamphetamine and cannabis (on 18 April and 24 April 2000) had been committed by him while that earlier operation was on foot, and had consisted in sales of those drugs to an undercover officer. After his arrest in May 2000, the Crown informed the sentencing judge, investigating police put a listening device in both Mr Christensen’s house and in his car. Mr Christensen was released on bail almost immediately, and had his house “swept” for listening devices, and the one the police put there was found. However, the one in his car was not, and Mr Christensen thereafter conducted a number of conversations on the telephone in the car, recorded by police. He was recorded arranging with his brother (who was also sentenced by that same judge), to produce amphetamines, and they spoke in terms of a profit of between $70,000 and $77,000 (for each of them), per “cook” of that drug. On 11 June 2000, the police tracked Mr Christensen’s vehicle to a farmhouse, which the police entered after Mr Christensen and his brother had left it. There they found evidence of the production of methylamphetamine and small quantities of that drug, and Mr Christensen’s brother was intercepted with 250 grams of about 60 per cent pure methylamphetamine.

15. Mr Christensen was also arrested at that time, and charged with the offence of production of methylamphetamine on 11 June 2000, and the offence of possession of the glassware and chemicals. He was again released on bail, and re-offended by dealing with another offender named Moran and arranging to buy from a person named Hirst. Mr Christensen was recorded speaking on the phone with Mr Hirst. The Crown told the sentencing judge that Mr Moran had arranged to supply drugs through a person named Beutel, who would give them to Hirst, who would supply then Mr Christensen. Mr Christensen had proposed to on-sell those to a number of other large purchasers.

16. In answer to questions, the Crown informed the sentencing judge that it contended Mr Christensen’s main business was trafficking in drugs, and he conducted a sham motor dealing business; the trafficking had been on and off throughout the four years. Mr Christensen had been arrested on 26 May 2000 after the first operation was closed, then re-arrested on 11 June 2000, and again in January 2001.

Information from the police

17. Counsel for Mr Christensen informed the judge that Mr Christensen had started to lose money in his business and had turned to drugs in 1997 as a means of supplementing it. Counsel submitted that Mr Christensen admitted to Mr Kirk that he had to disguise money, hence the maniac buying and selling of cars. Counsel also put before the judge an affidavit from the arresting officer, which described how Mr Christensen had telephoned that officer on a number of occasions in October and November 2000, advising that he was willing to provide police with assistance identifying a number of high profile drug dealers, in exchange for a reduction in the charges on which he was then remanded. That officer’s statement advised that the officer told Mr Christensen that the Police Service would not consider any arrangements to assist Mr Christensen on those earlier charges until he gave detailed information about the assistance he would provide, and on 29 November 2000 the officer met with Mr Christensen and his solicitor. Mr Christensen agreed to give detailed information about a number of other offenders involved in large scale manufacture and distribution of methylamphetamine, but wanted a “formal offer” from the police regarding reducing of charges, or a “guarantee” that he would be given assistance. Until that was done he would give the police only information for the purpose of submission of a target application. One was prepared and submitted for consideration to the “target committee” on 3 January 2001, after the investigating officer had met Mr Christensen three times between 29 November 2003 and January 2001. On those three meetings the officer had been provided with information on five criminal syndicates. However, on 11 January 2001, when Mr Christensen attended an “informant assessment”, he was considered unsuitable. Presumably the committee referred to was the controlled operations committee then established under Part 2 of Chapter 5 of (Reprint 1A) of the Police Powers and Responsibilities Act 2000.

18. That statement further advised that in mid-January a covert operation was ended which had been targeting Mr Moran and Mr Beutel, who (with Mr Hirst) had each been “approved targets” (for undercover operations) since 12 July 2000. The officer’s statement advised that on numerous occasions he had told Mr Christensen that under no circumstances was he to participate in any criminal activity, and that if he was implicated in any, he would be arrested. Mr Christensen had told the officer he was not involved in activity. However, between 3 January and 17 January 2001 the investigating officer became aware of evidence revealing that Mr Christensen was continuing his involvement in the purchase and sale of amphetamine, although Mr Christensen had told the officer in a number of telephone calls (which the officer recorded between 5 January and 15 January), that he was not involved in any criminal activity.

19. That statement produced by Mr Christensen’s counsel also included that after Mr Christensen’s own arrest in mid-January, Mr Christensen had said he had not made any profit from the drug transactions in which he had been engaged, and had been “setting up deals” for the purpose of staying “in” with some people involved in drug activity; the officer’s statement said he had reminded Mr Christensen on numerous occasions not to be involved in any criminal activity, and that Mr Christensen had acknowledged receiving that advice. Mr Christensen had also said to the officer that he had had to continue to conduct drug transactions, because if he did not, the people involved would become suspicious of him. He admitted to the officer having conducted some 20 to 30 transactions, apparently of purchase or sale. He complained to the officer that he believed that information he had supplied had been used without any benefit to himself and that he had been misled; the officer told him that Mr Moran, Mr Beutel, and Mr Hirst had been targets before Mr Christensen had offered to help the police.

20. Mr Christensen’s counsel expressly acknowledged to the sentencing judge that no authorisation had been given to Mr Christensen for any unlawful activity, and that Mr Christensen had been strictly instructed not to engage in any.^[1]  Mr Christensen’s counsel submitted that although Mr Christensen had been considered as an informant, he had failed the aptitude test, and that his endeavours went:

“some way to explaining on what the face of it the Crown say is a cold blooded breach of his bail and it is accepted by the defence, in case there’s any confusion, he was told by Constable Duran not to go involve himself in any actual transactions.  So I’m not suggesting that Mr Duran in any way misled him; on the contrary.  But it is in my submission a relevant consideration when looking at specifically what the Crown loosely call the last aspect of the trafficking, that the events that led to his ultimate breach of bail, to point that background out to Your Honour.  It is not a defence in other words but it explains.”^[2]

21. Counsel submitted that there was no evidence of any drug trafficking in the period between his release on bail on 11 June 2000 and his approach to the authorities, and further submitted that the appropriate head sentence was nine years imprisonment without any recommendation for parole release, and without a declaration of a serious violent offence. It follows that the learned judge was told of Mr Christensen’s offer to assist the police, told of the assistance Mr Christensen actually gave, told of the decision not to employ him as a covert operative, told that Mr Christensen acknowledged having been warned not to engage in unlawful activity, and told that Mr Christensen had done so, in breach of the warning, because he felt obliged to do so to avoid suspicion from other drug dealers.

22. The other circumstances put before the learned judge included the unchallenged assertion by the Crown that in the course of his approximately four years of trafficking, Mr Christensen had made a net profit of $500,000. The Crown applied for, and the judge made, a pecuniary penalty order regarding that amount. That did not mean that the State of Queensland would necessarily recover all of that from Mr Christensen; on this appeal, Mr Christensen said that $228,000 had been recovered from the sale of his property.

The re-opening application

23. Mr Christensen had prior convictions for stealing, wilful destruction of property, and for knowingly participating in the provision of prostitution. When the learned judge who sentenced him to 10 years imprisonment heard the application to re-open the sentence on 30 October 2006, five years later, the judge noted that this Court had held in R v Cassar ex parte Attorney-General [2001] QCA 300 that s 188 should not be used as an avenue for judicial review of administrative decisions, and that sentences should be reviewed through the appeal process, not by means of s 188.  It was more in the nature of a “slip rule to be used in exceptional, limited circumstances in the precise terms to which it referred”.  Further, in R v Stephenson [2001] QCA 407, Wilson J with whom Thomas JA agreed, had remarked that s 188(1)(a) should not be interpreted as authorising a re-hearing on the merits.  The learned judge hearing the instant application noted the unsuccessful application for leave to appeal to this Court some four years earlier and an application, out of time, (and refused) for special leave to appeal to the High Court; and that Mr Christensen’s grounds for re-opening asserted deficiencies in his legal representation and in the reasoning process resulting in the imposition of the sentence in the first place.

24. The learned judge held that Mr Christensen was clearly contemplating a re-hearing on the merits and that no case had been shown for a re-opening of the sentencing proceeding. The application was refused.

Mr Christensen’s arguments

25. In his written submissions in support of this appeal, Mr Christensen says that in late November 2000 the arresting officer had approached him and asked him not to “handle anything” until “his boss” gave the “go ahead”, but that Mr Christensen could not then reverse the steps that he had already been taking. That information seems much the same as was put before the learned sentencing judge originally, as is the assertion in that written submission that Mr Christensen had participated in further trafficking of amphetamines because he had the expectation that it was happening with the sanction of police. He contends that he received a heavy, 10 year, sentence to reflect the breach of his bail, but, oddly, complains that he was only charged with four counts of supplying in the period from October 2000 to January 2001, although he had admitted further instances of that offence to the police. In that written submission he acknowledged having told the arresting officer of some 20 or 30 “deals”, in major quantities, engaged in at the time by him; that information too had also been put before the learned sentencing judge.

26. What is important is that the further offences of supplying to which he pleaded guilty, committed when he was on bail after his second arrest on 11 June 2000, were all committed after the date on which he acknowledged having been told not to offend further. His written submission to this Court concedes that he admitted to conduct that was trafficking, (the 20 to 30 transactions) committed in the last part of the period covered by the trafficking charge to which he pleaded guilty. No errors of fact by the judge imposing the original sentence are disclosed in that written outline of argument, and nor is any relevant difference between what Mr Christensen asserts to this Court, and what the learned sentencing judge was told before passing sentence. Re-opening procedures under s 188 require proper proof of clear factual errors, and the learned judge was correct that no error was shown, and that Mr Christensen was misusing that procedure to try to get re-sentenced.

27. Mr Christensen is angry that he has got a longer sentence than any of the people he informed on, who have all been released before him. He has had to stay in a prison for protected prisoners, and in a section of that prison protected from other, protected, prisoners. He complains that the judgment dismissing his original appeal did not refer to his offers and a attempts to help the police. But he had his appeal on the merits, and his co-operation was referred to in the original sentencing remarks. He pleaded guilty to trafficking over a four year period, and accepted that he profited by $500,000; he had to expect a very long sentence. No doubt that was why he informed on others. But all that was put before the sentencing judge.

28. The written submissions also contend that Mr Christensen has never spoken to Mr Kirk nor supplied him with drugs. That assertion in the submission does not constitute any evidence or basis to contradict the information originally placed before the learned sentencing judge by the Crown, which was confirmed at the time by the submissions made to the judge by Mr Christensen’s counsel. The written submission acknowledges an unexplained income of $500,000, but offers no explanation for it.

29. There is a complaint that counsel had not asked for the court to be closed pursuant to s 13A of the Penalties and Sentences Act 1992, but no basis for doing that is shown in the written submission.  None was shown in the statement by the investigating officer which was given to the judge by his counsel, and made an exhibit in the original sentencing proceeding.  Mr Christensen had offered to help law enforcement agencies in or about October 2000, and had given some information to police about high level drug dealers, but had not, as required by s 13A of that Act, undertaken in writing to co-operate with law enforcement agencies in proceedings against other offenders.  Section 13A applies, in terms:

“...for a sentence that is to be reduced by the sentencing court because the offender has undertaken to co-operate with law enforcement agencies in a proceeding about an offence...”

Mr Christensen had given information but even on his own written submission, and certainly on the material presented to the sentencing judge, that was as far as it went.  The learned sentencing judge was not imposing a sentence on any factual error by reason of not having closed the court under s 13A during the sentencing proceeding.  The judge was not asked to, and the section did not apply.

30. Mr Christensen complains in his written submission that the court did not receive any evidence that he had co-operated with the police, and paid a $500,000 pecuniary payment, nor that he thought he had the full backing of police. But the judge was given the statement by the arresting officer describing his offer to co-operate, and the judge imposed the $500,000 order.

31. Mr Christensen complains the judge gave inadequate weight to his plea of guilty, but the judge specifically referred to it when passing sentence. He also complains that no regard was had to the fact that a pecuniary penalty order was imposed on 1 November 2001, but s 98 of the Crimes (Confiscation) Act 1989 (Qld)^[3] provided that the court must not have regard to the question of whether a defendant might be ordered to pay a pecuniary penalty, when deciding the sentence to be imposed.  No errors of fact by the sentencing judge were shown and this appeal would have to be dismissed, even if it could be brought.  Mr Christensen did not establish there had been any error of substance in the facts on which he was sentenced.  His purported appeal was simply an improper attempt to have a second appeal against his sentence.  He had that appeal, and lost it.

32. HOLMES JA: I agree with the reasons of the Chief Justice and the order he proposes