SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: The application for leave to appeal against sentence should be refused for the reasons given by White JA.

[2]  WHITE JA: On 23 April 2010 the applicant pleaded guilty on ex-officio indictment that between 1 January 2004 and 23 April 2009 he carried on the business of unlawfully trafficking in cannabis sativa and that he had possession of cannabis on 22 April 2009.  Sentence proceeded on a schedule of agreed facts.  The applicant was sentenced to imprisonment for nine years with no recommendation for parole eligibility outside the Corrective Services Act regime on the trafficking charge and convicted and not further punished on the possession charge. 

[3] The applicant’s co-offender, Richard James Eeles, was sentenced to two and a half years imprisonment suspended after six months for an operational period of five years.  There is no suggestion that his lesser sentence gives rise to any parity issue since Eeles was sentenced on the basis of one act of couriering over 11 kilograms of cannabis, although jointly charged with the applicant on the trafficking count.  The applicant was aged 60 when charged and Eeles aged 69 years.

[4] On 22 April 2009 at about noon police executed a search warrant at the applicant’s residence at Redcliffe.  He and Eeles were at the residence with other family members.  Police searched a vehicle in the garage which had been driven by Eeles from South Australia.  He had arrived at the applicant’s residence about 10 minutes before the police.  His vehicle had its rear boot open and the spare tyre well and several internal panels had been removed from the rear of the vehicle.  Located beside Eeles’ vehicle was a large cardboard box containing 19 tightly sealed packages, each wrapped in plastic.  Each package contained approximately 460 grams (one pound) of cannabis.  A further search uncovered other sealed packages containing the same amount of cannabis.  A total of 24 individually wrapped packages of about 460 grams of cannabis each were seized during the search.  The total amount of cannabis was 11.24 kilograms.

[5] Both men were arrested and taken to the Redcliffe police station where they participated in records of interview.  The applicant made extensive admissions to police in the course of the interview ranging well beyond those matters directly arising from the search.  He told police that he had been trafficking in cannabis for the last three years while living in Queensland and for two years prior to that while living in South Australia.  He said that he commenced his involvement with the drug trade by acting as a courier when he resided in South Australia.  Gradually he started dealing in small amounts on his own behalf until he went into business for himself.  He had four regular customers in Queensland who knew that once or twice a week the applicant would receive a large quantity of cannabis.  He declined to provide the names of his regular customers.  He would sell the 24 pounds, the amount he regularly purchased, in the afternoon of its arrival.  After delivery to him by his courier he would drive the cannabis to the buyers.  He never unpackaged the cannabis.  It was sold only in pound lots.  The applicant gave the police details about the way in which his supplier in South Australia operated.

[6] The applicant told police that he had bought cannabis about 200 times over the past five years.  His modus operandi was to fly to Adelaide with the cash for the purchase - $76,000 for the consignment received on 22 April – which he would buy from the same supplier.  Either his supplier or he himself could arrange a driver to bring the cannabis to Queensland.  In the past he had packed it into a suitcase and brought it back by air but discontinued that practice after he learned of a carrier being detected.  As a result of his admissions the profit over the five years was calculated to be approximately $1.3 million to $2.4 million with an overall purchase price of $14 million and a very approximate street value of $23 million.

[7] Although it might be inferred, as the court did, that the arrival of police at the applicant’s home 10 minutes after Eeles was not coincidental, the prosecutor had no information about how much of the applicant’s trafficking activities was known or suspected by them.  Accordingly, the sentence proceeded on the basis that without the applicant’s admissions as to the duration of his unlawful activity, the amounts involved and his manner of delivery, he could not have been charged over such a long period or in respect of such large quantities.  There was no explanation as to why the applicant divulged so much to the authorities.  As the learned sentencing judge observed, he had a criminal history spanning some 40 years in several jurisdictions which included 19 periods of imprisonment so that he was not a naïve first offender getting it all off his chest.

[8] The applicant was born in 1949 in the north of England and migrated to Australia as a 12 year old in 1961.  He is married and has no children.  His employment history was in heavy manual labouring and he started receiving a pension in his late fifties.  He was neither an addict, drug dependent person nor a user of unlawful drugs.  He became involved in dealing in cannabis first as a courier and then as a wholesale supplier in order to make a profit, initially when under some financial pressure.  The applicant suffered from some health problems, none of which would preclude him from serving a lengthy prison sentence.  He had one previous conviction for a drug offence in 1991.  His other offences were mainly in South Australia and New South Wales and included break and entering, burglary, other property and fraud offences, one grievous bodily harm with intent, and motor vehicle and traffic offences.

[9] The prosecutor sought a term of imprisonment of nine years with no early parole recommendation.  Her submission was that without the mitigating factors of an early plea of guilty and co-operation, the applicant, with his extensive criminal history, would have been facing a sentence in excess of 10 years with the consequent serious violent offence declaration.  Submitting for a sentence of less than 10 years without a serious violent offence declaration was, as Ms Merrin for the respondent contended before this Court, a significant mitigating aspect.

[10]  Counsel for the applicant below accepted that a head sentence of nine years was appropriate but submitted that there should be a parole eligibility date before the half-way mark because of his co-operation, age and health.  His Honour observed that this offending “could well have been characterised as in the worst category of trafficking in cannabis” so that, but for the mitigating factors, a sentence in excess of 10 years was “very likely indeed”.  The maximum sentence since 1990 for trafficking in a schedule 2 drug is 20 years.

[11]  Mr Fong, for the applicant, submitted that by not making an earlier recommendation for parole eligibility, his Honour erred by imposing a sentence which failed to have regard adequately to the mitigating features of the plea of guilty and the co-operative admissions against interest, thus resulting in a sentence which was manifestly excessive.

[12]  Mr Fong relied on the well-known statement of Hayne J in AB v The Queen:[1]

“An offender who confesses to crime is generally to be treated more leniently than the offender who does not.  And an offender who brings to the notice of the authorities criminal conduct that was not previously known, and confesses to that conduct, is generally to be treated more leniently than the offender who pleads guilty to offences that were known.  Leniency is extended to both offenders for various reasons.  By confessing, an offender may exhibit remorse or contrition.  An offender who pleads guilty saves the community the cost of a trial. … And the offender who confesses to what was an unknown crime may properly be said to merit special leniency.  That confession may well be seen as not motivated by fear of discovery or acceptance of the likelihood of proof of guilt; such a confession will often be seen as exhibiting remorse and contrition.”

Here the applicant’s admissions fall between the two types of “confession” in as much as he was caught red-handed with a large quantity of cannabis so that conviction was inevitable, but he admitted to far greater criminality than could have been known.  Both aspects of the plea of guilty, reflecting co-operation in the administration of justice, needed to be reflected in the sentence.  As Hayne J noted in AB,[2] an offender’s conduct must be considered as a whole when sentencing and not incrementally by attempting to segregate and characterise aspects of that conduct and award “separate degrees of leniency for each aspect”.[3]  Such an approach, his Honour observed, not only is misleading but “apt to produce absurd results”.[4]

[13]  The learned sentencing judge was referred to the comparable sentences of Brown,[5] Wallace,[6] Brienza[7] and Parsons & Sanders.[8]  Counsel have mentioned other cases on this application for leave to appeal.  I propose to consider them chronologically.  Ms Merrin referred to R v Grkovic.[9]  The maximum penalty for trafficking in a schedule 2 drug was then life imprisonment with hard labour.  The offender pleaded guilty to trafficking in cannabis over an undisclosed period.  He had an underground shed which contained a large quantity of cannabis with an estimated street value of $1 million to $1.4 million, more than a million cannabis seeds and $165,000 in cash.  An audit of his finances disclosed an unaccountable income of $356,960.  He was described as a “major drug trafficker in North Queensland”.  He was sentenced to a term of imprisonment of 12 years with hard labour for the trafficking and other concurrent terms were imposed for the other drug offences.  He had a prior conviction for cultivation of cannabis plants.  He forfeited land, cash and other property as a consequence of the crime. 

[14]  In R v Parsons & Sanders[10] the applicant, Parsons, pleaded guilty to trafficking in cannabis limited to a short time in 1998.  He had a significant criminal history and had been imprisoned on nine occasions.  He did not co-operate with the authorities apart from his plea.  He was buying substantial quantities of cannabis from persons who imported it from Papua New Guinea.  There was one large transaction for the supply of 20 kilograms for $100,000 to an undercover police officer and talk that it would be a permanent arrangement.  Parsons was sentenced to eight years imprisonment with a recommendation for parole after serving three and a half years, undisturbed on appeal.  An important factor against the applicant was the potential for regular large amounts of cannabis to be circulated into the community.

[15]  In R v Brown[11] the applicant pleaded guilty to carrying on the business of trafficking in cannabis and possession of cannabis.  The period of the trafficking which she carried on with her husband was between November 2000 and January 2002, just over 12 months.  Similar to the present offending, the cannabis was hidden in motor vehicles and transported from South Australia to Queensland.  Financial analysis indicated a turnover of $1.34 million.  Even after the applicant’s husband was arrested and placed in custody in New South Wales the applicant continued offending, taking directions from her husband, and only stopped after a police raid in January 2002.  The applicant had a previous criminal history for dishonesty.  She was sentenced to seven years imprisonment with parole eligibility after three years, the court taking into account that she was the sole carer of two children.

[16]  In R v Wallace[12] the applicant was sentenced to seven years imprisonment with parole eligibility after serving two years and nine months.  The period of trafficking was less than 12 months and involved selling approximately 236 kilograms of cannabis for approximately $1.8 million.  The applicant was 48, had two minor drug convictions, had an exemplary work history and became involved in the trafficking because of his failing business.  He was detected with four kilograms of cannabis in his possession and $55,000 in cash.  The trafficking was established by admissions made in a record of interview with police.  The court considered the allowance which ought to be made in circumstances where an offender confesses to a wider scope of conduct than was immediately known to the police.  Mackenzie AJA observed:[13]

“… it is true that he is entitled to a degree of consideration that adequately recognises that his cooperation with the police expanded the extent of his liability.”

His Honour, however, noted that the offending involved repetitive wholesale dealing in cannabis obtained in a well organised way from an interstate supplier and that the quantities and profits were large.  His Honour concluded that a head sentence of seven years in those circumstances was neither manifestly excessive “nor even at the top of the range that might have been properly imposed”.[14]  The President and Jones J agreed.

[17]  In R v Brienza[15] the applicant pleaded guilty to trafficking in cannabis over a period of just under 11 months.  He was sentenced to six years imprisonment with parole eligibility after serving one-third of that sentence.  There were a number of people involved in the drug network as couriers and facilitators.  A parity issue arose on that appeal.  A co-offender, John Diano, who had been sentenced earlier, had organised the acquisition of the cannabis from the producers in South Australia and its transport to Queensland.  He admitted to organising the supply of at least 200 pounds of cannabis sold for a sum which generated more than $600,000 in cash.  He had made use of two couriers.  He had a criminal history in South Australia which included a conviction for production.  He was sentenced to seven and a half years imprisonment with parole eligibility after two and a half years.  His was a role more akin to this applicant.  Brienza acted as a wholesale distributor in the Gold Coast area and was sentenced on the basis that he was supplied with 70 pounds of cannabis in 12 transactions.  There was no evidence about the profit made by him.  The street value of the cannabis he sourced and supplied was in the order of a quarter of a million dollars.  None of those offenders were users, their motivations were purely commercial.  Brienza decided of his own volition to cease his involvement in the network not long before it was closed down by police and he had no relevant criminal history. 

[18]  In R v Broad & Prior[16] Broad pleaded guilty to trafficking in cannabis between June and November 2007, a period of five months.  He was sentenced to seven years imprisonment with parole eligibility two years and three months later.  Prior also pleaded guilty to trafficking over the same period and other offences including possession of tainted money.  He was sentenced to four and a half years imprisonment with a parole eligibility date just over a year later.  The two applicants were part of an organised crime network trafficking commercial quantities of cannabis grown in South Australia and transported for sale into Queensland in motor vehicles especially modified to conceal the drugs.  The facts also have some similarity with the present.  Each person played a part in the ultimate distribution of the drug.  The application was complicated by factual issues that need not concern this review.  Broad had a substantial criminal history including six prior convictions for possessing or producing drugs and gave little co-operation apart from his plea of guilty.

Discussion

[19]  When consideration is given to the lengthy period over which the applicant conducted his unlawful business of trafficking in cannabis and the large quantity of drugs involved, nine years imprisonment, as has been accepted, can be seen to be entirely within range.  There can be no doubt that this was a serious example of offending solely for profit.  The applicant had facilitated the circulation into the community of over 2,000 kilograms of cannabis.  For an offender with 40 years of offending behind him, a sentence of personal deterrence was necessary.  As the comparative cases reveal, offending in this way appears to be prevalent and a sentence to deter similar offending was also called for.  Whilst it is true that the extent of that offending has only been revealed because of the applicant’s admissions, the learned sentencing judge did not overlook that or any other relevant factor. 

[20]  As has been regularly noted, appellate review of sentencing entails either specific error or manifest excess.[17]  Mr Fong does not, in his oral submissions, point to specific error, but submits that in failing to ameliorate the sentence further by an early parole eligibility date, the learned sentencing judge imposed a sentence that was manifestly excessive.  It is as well to recall what was said in House v The King about manifest excess in a sentence:[18]

“It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

[21]  His Honour gave effect to the applicant’s co-operation by a moderated head sentence.  The reduction of a sentence of 10 years or more in respect of which the applicant would have been required to serve 80 per cent of the sentence before eligibility for parole arose to one of nine years with eligibility for parole after serving 50 per cent adequately reflects the mitigating factors for this applicant.  There is no error in the sentence imposed below and I would refuse the application.

[22]  JONES J: I agree with the reasons of White JA.  The application should, in my view, be refused.