SUPREME COURT OF QUEENSLAND

[1] KEANE JA:  I have had the advantage of reading a draft of the reasons for judgment prepared by Holmes JA.  I agree with her Honour’s reasons and with the orders proposed by her.

[2]  HOLMES JA:  The applicant seeks leave to appeal his sentence of four years imprisonment, suspended after six months with an operational period of four years, imposed in respect of one count of trafficking in a dangerous drug (cannabis) over a three month period in 2006.  The grounds for the application are that the sentence was manifestly excessive and that the learned sentencing judge erred by failing to give adequate consideration to the applicant’s co-operation, the delay in his sentencing, the period since the offence during which he had not offended further, and the issue of parity with the sentence imposed on the applicant’s co-offender, his ex-wife.

[3] The applicant’s representatives filed a list of authorities extending to 17 cases in respect of this appeal, many of which (for example, House v The King[1]) served only to state uncontentious principles which appellate courts apply on a daily basis.  The temptation towards excessive citation should be resisted.  Some useful guidance can be obtained from the recent decision of the English Court of Appeal, Criminal Division, in R v Erskine.[2]  It should, however, be said that counsel in his oral submissions confined himself, in the main, to citing passages from authorities which were directly relevant. 

The trafficking offence

[4] The applicant was sentenced on the basis of an agreed statement of facts.  He was the owner of a transport company operating interstate from a base in South Australia.  From telephone intercepts, police ascertained that the applicant’s company was transporting cannabis from South Australia to Queensland.  It was discovered that he had made arrangements to fly into Brisbane on 25 May 2006 to meet his former wife and daughter-in-law in order to collect from them money from previous cannabis sales and to arrange a further supply of the drug.  The applicant then set out to drive a company prime mover back to Adelaide, but was stopped and his vehicle searched.  Police found in the prime mover an envelope containing $19,300 in cash.  A note found with the money indicated that $13,300 was for five pounds of cannabis brought from South Australia to Queensland. 

[5] Police searched a property belonging to the applicant’s daughter-in-law, Lisa Collins, where they found 19 and a half pounds of cannabis contained in 20 heat-sealed plastic bags, as well as some associated documentation.  The applicant’s premises in South Australia were also searched, and heat-sealing equipment, plastic bags, scales and a small amount of cannabis were found.  The bags matched the packages found at Lisa Collins’ house.  Police investigations established that at least two shipments had been sent to Queensland for distribution. 

The applicant’s antecedents and co-operation

[6] The applicant pleaded guilty on an ex-officio indictment.  He was 57 years of age when the offence was committed and 59 years old at sentence.  He had a criminal history some decades old, of no real significance.  His counsel below tendered a psychologist’s report which said that various events in the applicant’s childhood had left him with feelings of insecurity and personal inadequacy, making it important for him to be a good provider, and difficult for him to refuse others’ requests.  The applicant gave the psychologist an account of his former wife’s having been the driving force behind his activities, but that version was not relied on by his counsel at sentence. 

[7] The applicant had given South Australian Police a signed statement as to his association with two persons suspected of drug trafficking and had assisted with identification of persons in photographs and in telephone intercept material.  He had indicated his willingness to give evidence, but because the offenders the subject of his statement pleaded guilty it was unnecessary for him to do so.  It was put on his behalf at the sentence hearing that there had been some ramifications for him: he had received threatening phone calls, and persons on motorcycles kept driving by his house, something he and his wife found intimidating.  They changed their company name and sold their house at a loss to avoid the attention. 

The sentence imposed on the applicant’s co-offender

[8] The applicant’s ex-wife, Susan Collins, had earlier been sentenced to four years imprisonment, wholly suspended, on the basis that the applicant had pressured her to become involved in the distribution of drugs in order to meet the legal expenses of their son-in-law, who faced serious charges.  The sentencing judge accepted a psychologist’s opinion that her offending was the product of a long-term dysfunctional relationship with the applicant and a misguided desire to protect her daughter and son-in-law and their children.  She was 55 years old and was suffering from an array of serious health complaints, physical and psychiatric.

[9] The prosecution clearly put to the sentencing judge in the present case that the applicant had played a more serious and more culpable role than his co-accused.  He was the individual responsible for the organisation, supply and distribution of the drugs transported from South Australia to Queensland and was to be regarded as the principal of the enterprise.  That analysis was not contradicted.

The sentencing remarks

[10]  In the applicant’s favour, the learned sentencing judge accepted that the motivation for the trafficking was his desire to provide financial assistance to his son-in-law.  It was to his credit that he had pleaded guilty to an ex-officio indictment and that he had provided information to the police in respect of other drug activities, and was willing to testify at trial, although that became unnecessary when those charged pleaded guilty.  The applicant was at an advanced age, remorseful and unlikely to re-offend.  He was at risk of losing his business, having built it up in the three years since he was charged. 

[11]  The learned judge identified parity as a significant consideration.  The applicant’s ex-wife had received a wholly suspended sentence of four years imprisonment, but a distinguishing feature was that her sentence was premised on acceptance that it was the applicant who had prevailed upon her to join the venture.  Nonetheless, having regard to her sentence, the learned judge reduced what he would otherwise have considered to be an appropriate head sentence of five years to four years.  But the applicant did not fall to be sentenced on the basis that anyone else had prevailed upon him to take part in the trafficking; accordingly, the sentence was not suspended forthwith, but after six months imprisonment.

Delay and non-offending

[12]  Of the particular regards in which it was said that the learned sentencing judge had erred, two were related: the question of delay and that of non-offending between charging and sentencing.  As to the first, it was said that the learned sentencing judge had failed to give sufficient weight to the fact that the applicant had in the three years after he was charged significantly expanded his trucking business, which would be damaged by his incarceration.  Indeed, the written submissions went so far as to say the applicant’s perseverance in expanding his business called for “an identifiable and significant discount”; a curious proposition.  As to the second, it was said that the learned judge had failed adequately to consider the applicant’s presence in the community without re-offending over those three years.

[13]  The relevant questions in considering delay are, whether it has produced unfairness to the offender, which might be by reason of his having been held in custody or being left in a state of uncertainty, and whether the time which has elapsed between the offending and the sentence is such as to demonstrate that the offender is rehabilitated.  Here, the applicant was promptly charged, and was under no misapprehension as to what he was facing.  He did not spend any part of the remand period in custody.  The delay was, as defence counsel indicated at sentence, because he was assisting the South Australian authorities. 

[14]  It was up to the applicant whether over the three year remand period he chose to expand his business in the knowledge that he faced imprisonment.  The fact that he was involved in lawful business rather than in crime in the intervening three years went in his favour because it indicated rehabilitation; and it was of some, but limited, relevance that a consequence of imprisonment was the prospect of damage to the business.  But the learned sentencing judge accepted those things; he gave the applicant the benefit of a finding of rehabilitation, referring to his remorse and the low risk of recidivism.  He accepted also that imprisonment was likely to have a significant impact on the business built up in the three years since the applicant was charged.  If it is suggested that the expansion of the business somehow per se warranted a specific discount, that suggestion must be rejected.  It has no basis in any recognised sentencing principle. 

Parity and co-operation

[15]  The learned judge plainly did consider the issue of parity in sentencing between the applicant and his ex-wife, and identified, properly, the different basis on which she had been sentenced.  Nonetheless, he gave the applicant the benefit of a lower head sentence to take that matter into account.  As to a discount for co-operation, having fixed a head sentence of four years, the learned sentencing judge required the applicant to serve only one eighth of it, a very substantial discount.  It is impossible, in the light of the extent of that discount, to accept that he did not give sufficient weight to the various factors in mitigation, including co-operation; and implicit in the allowance for co-operation was a recognition that it was not without consequence for the applicant.  But those consequences were not of such proportions as to require individual recognition by the learned judge in sentencing. 

Sentence not manifestly excessive

[16]  The applicant did not offer any appellate authority to suggest that the sentence was out of proportion with others imposed for this kind of offending.  Counsel for the Crown pointed to two authorities, R v Whyte[3] and R v Haygarth,[4] to demonstrate that the sentence imposed here was not manifestly excessive.  Both cases involved trafficking in cannabis over slightly longer periods – eight months in the first, four in the second – but at a much lower level.  Those applicants were selling cannabis in small transactions, involving grams of the substance sold for small amounts of cash, in contrast with the much larger scale enterprise here, where nine kilograms of cannabis and almost $20,000 in cash were the product of what seems to have been either a single transaction or contemporaneous transactions.  The offenders in those cases were young: Whyte was only 20, and Haygarth 27.  Whyte had a five month old baby; the trafficking charge against her was based on her own admissions.  Haygarth had an extremely unfortunate childhood, was drug addicted from an early age and had two young children.  In Whyte, a sentence of four years imprisonment, suspended after 12 months with an operational period of five years, was upheld.  In Haygarth, a sentence of four years imprisonment was varied only by a recommendation for eligibility for parole after 12 months. 

[17]  Those cases serve at least to illustrate the advantageous treatment that the applicant here received.  They involved, in my view, less serious offending, involving much younger individuals with stronger mitigating circumstances.  One would ordinarily expect a higher head sentence to be imposed in a case of the present kind; instead, the effect of the parity consideration in the present case has been to give the applicant the benefit of the same head sentence as those offenders received, while the discount for co-operation has produced an actual custodial component half of what they were required to serve.  The applicant has nothing to complain of.

Conclusion

[18]  To have wholly suspended the applicant’s sentence would have produced a result that failed to recognise the seriousness of the offence.  I would dismiss the application for leave to appeal against sentence.

[19]  M WILSON J:  I agree with the order proposed by Holmes JA, and with her Honour’s reasons.