Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment
  • Appeal Determined (QCA)

R v Orley[2013] QCA 119

 

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDINGS:

Sentence Application

ORIGINATING COURT:

DELIVERED ON:

21 May 2013

DELIVERED AT:

Brisbane 

HEARING DATE:

26 February 2013

JUDGES:

White and Gotterson JJA and Atkinson J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted by jury at the conclusion of a five day trial of one count of carrying on the business of unlawfully trafficking in the dangerous drug cannabis between January and April 2010 – where he was sentenced to six years imprisonment with no recommendation as to parole – where in sentencing the applicant the sentencing judge remarked that the applicant was deeply involved in a sophisticated operation involving the distribution and movement of large quantities of cannabis – where the applicant displayed complete lack of remorse and cooperation – where the sentence range was one of six to seven years – where the applicant was sentenced at the lower end of the range due to mitigating circumstances – where the applicant was 55 years of age at the time of offending and had a criminal history that included conviction of an offence of possession of a dangerous drug – whether the sentence imposed was manifestly excessive

Drugs Misuse Act 1986 (Qld), s 5

Penalties and Sentences Act 1992 (Qld), s 9(1)(c)

R v Brienza [2010] QCA 15, followed

R v Broad & Prior [2010] QCA 53, considered

R v Collins [2009] QCA 387, distinguished

R v Parsons & Sanders [1999] QCA 402, considered

COUNSEL:

S A Lynch for the applicant

B J Merrin for the respondent

SOLICITORS:

AW Bale & Son for the applicant

Director of Public Prosecutions (Queensland) for the respondent

[1] WHITE JA:  I have read the reasons for judgment of Gotterson JA and I agree for those reasons that the application for leave to appeal against sentence should be refused.

[2] GOTTERSON JA:  At the conclusion of a trial over some five days, the applicant, Christopher James Orley, was convicted by jury on 25 May 2012 of an offence against s 5 of the Drugs Misuse Act 1986.  The conviction was on a single count of carrying on the business of unlawfully trafficking in the dangerous drug cannabis between 11 January and 15 April 2010.  The applicant was sentenced that day to imprisonment for six years.  No recommendation as to parole was made.

[3] Leave to appeal against the sentence is sought by the applicant.  The ground of appeal upon which he would rely is that the sentence is manifestly excessive in all the circumstances.  A variation of the sentence to five years imprisonment is requested.  The applicant also invites this Court to consider suspending such a sentence after half of it is served on the footing that he is unlikely to re-offend.

Circumstances of the offending conduct

[4] The learned judge commenced his sentencing remarks with the following summary of what the evidence led at the trial had disclosed:

The evidence placed before this Court clearly establishes that you were deeply involved in a sophisticated operation involving the distribution and movement of large quantities of cannabis. The text messages tendered in evidence, together with the intercepts, plainly indicate your extensive involvement in those activities.”[1]

[5] The jury heard evidence of a number of telephone conversations made with a mobile phone found on the applicant when his residence was searched in the exercise of a warrant.  Two telephone numbers of one Leke Ndoci were stored on the mobile phone.  The intercepted calls were between the applicant and Ndoci.

[6] The first telephone call was at 4.39 pm on 6 April 2010.  Ndoci asked the applicant whether he wanted to come over “if you’ve got anything”.  A time was arranged for them to meet.  In that call, Ndoci said:

 

“I told them things are slow now, they are not like before, you know but”.

A call by Ndoci at 7.27 pm indicates that he was five minutes away.  On the following day, 7 April, Ndoci called the applicant to say that he would come to meet the latter at 6 pm that evening.

[7] On 8 April 2010 at 3.30 pm Ndoci telephoned the applicant.  The following exchange took place between them during the call:

 

“Ndoci:“Hello.  Is CHRIS there?”

Applicant:“Hey mate”

Ndoci:“Look ah my brother got sixteen He hasn’t got much but they’re three six if you want them.”

Applicant:“Oh yeah … Yeah I suppose.”

Ndoci:“Just trying to keep you busy if you need them.”

Applicant:“Yeah, yeah I’ll take them.  Yeah”

Ndoci:“Okay mate I’ll see him later on and I’ll come and drop them of huh?”

Applicant:“No, no worries LEK.”[2]

[8] The figures “sixteen” and “three six” in this context indicated that Ndoci’s brother had 16 pounds of cannabis which were available for the applicant to acquire at $3,600 per pound.  Ndoci told the applicant that he would see him in “half an hour”.  On the following day at 3.36 pm, the applicant said to Ndoci:

 

“They got that … if you want that, or do you want to wait for all of it in one go?”

[9] Ndoci replied:

 

“Yeah, yeah, I’ll wait for that because I’m not coming twice there.  No worry.  I told you it is not a problem from him till, till Monday, but I’ll come tomorrow or something or Sunday maybe.”

[10] In a telephone call between the two on 10 April 2010, Ndoci answered a question asked by the applicant by stating that he had “Fifty … Fifty nine maybe”.  On the following day, Ndoci confirmed that quantity and on the day after, the applicant told Ndoci that he had “around a hundred” for him.

[11] On 13 April 2010, the day before the warrant was executed, the following exchange took place between them by telephone at around 2.55 pm:

 

“Ndoci:“Yeah mate look ah you know that paperwork you gave me last night?”

Applicant:“Yeah”

Ndoci:“One of the bundles that had ten, you know ten?”

Applicant:“Yeah”

Ndoci:“Yeah.  One of them wasn’t a thousand, it was five hundred.”

Applicant:“Was it?”

Ndoci:“Yeah” …

Applicant:“No worries [LEK], I’ll sort that out hey” …

Ndoci:“Okay mate, so, when are you going to need more because they’re coming tomorrow morning?” …

Applicant:“How, how many are there?”

Ndoci:“And what do you reckon, how many would, would you need?”

Applicant:“Oh all you can get”

Ndoci:“Okay then I believe there are eighty but ah I’m not sure.”

Applicant:“That’d be good”[3]

[12] Telephone records revealed that calls between Ndoci and the applicant began in mid January 2010 at the commencement of the three month period referred to in the count on which he was convicted.  As well, there was evidence of SMS text messages between them which indicated criminal activity as early as January and continuing thereafter into April 2010.  On 12 January 2010 Ndoci referred to having dropped off “yesterday’s paperwork, 43.2”.[4]  In addition, there were text messages between the applicant and other individuals in which references were made to substantial quantities and dollar amounts.  Evidence before the jury indicated that these were references to drug transactions with persons to whom the applicant on-supplied drugs.

[13] The applicant was intercepted in his vehicle at Ellen Grove on the morning of 14 April 2010, a few hundred metres from his residence.  Some 42 kg (92 pounds) of bagged cannabis were found in his car as were several duffel bags which later were found to have traces of tetrahydrocannabinol and cannabinoids together with fragments of cannabis on them.  This weight of cannabis invites comparison with the “eighty” that Ndoci said he believed he had for the applicant in the telephone conversation on the preceding afternoon and with the applicant’s stated desire to have all he could get.

[14] In the course of execution of the warrant at his residence, the following were found by the investigating police officers:

 

(a) a number of sets of scales;

(b) about $7,700 in cash;

(c) an envelope with calculations scribbled on it; and

(d) three sports bags which were marked in a similar way to the duffel bags.

[15] A forensic analysis of the applicant’s financial affairs indicated that he had received $9,315.46 of unsourced income during the three month period of trafficking.[5]

[16] The evidence to which I have referred supports the summary of it given by the learned judge.  At the sentence hearing, the applicant’s counsel accepted[6] the prosecutor’s submission that the separate weights of cannabis found in the applicant’s vehicle and referred to in electronic communications on earlier occasions indicated that the applicant had dealt in at least 150 pounds of the drug.  His Honour noted that that quantity had a street value of more than $450,000.[7]

[17] The applicant’s counsel also accepted that the offence was “very serious” and that the amount of cannabis involved was “big”.  He characterised the applicant’s role as a “wholesaler” in a distribution network in which there were others higher up.[8]  This characterisation is, I think, an accurate one.  However, it is not to be taken as implying passivity on the applicant’s part as a mere warehouser of large quantities of the drug.  He very actively participated in the distribution network by collecting and distributing large quantities of cannabis and by collecting the cash proceeds, accounting to his network supplier and making a profit for himself on the way.

Other factors taken into account at sentence

[18] The learned judge referred several times in his sentencing remarks to the applicant’s “complete lack of remorse” which was vividly demonstrated by his response when the allocutus was administered, namely, “Yeah, I don’t believe I’m guilty.”[9]

His Honour observed:

 

“…You showed no level of cooperation and you have shown no level of remorse for your conduct. Indeed, the jury was required to consider whether it was you speaking on the intercepts. You didn't even admit that in circumstances where the intercepts clearly referred to, on one occasion, Chris being asked for, and the 718 phone was found in your possession when the police searched your premises after Mr Ndoci had been intercepted but a short distance from your home.[10]

[19] The applicant who was age 55 at the time of offending and 58 at sentence, had a criminal history which included conviction of an offence of possession of a dangerous drug which he committed in 1999 and for which a fine was imposed, as well as convictions for unlawful use of a motor vehicle and receiving stolen property.

[20] The learned judge considered that the applicant’s criminal history, complete lack of remorse, lack of cooperation and extensive involvement in the offending conduct warranted a substantial period of imprisonment.  He considered that such a sentence was necessary in order to fulfil the purpose of the sentencing guideline in s 9(1)(c) of the Penalties and Sentences Act 1992 of deterring the applicant himself, and, more importantly others, from committing the same or similar offences.[11]

[21] At sentence, certain material, to which the learned judge referred in his remarks, was placed before the court which indicated that the applicant was a very caring husband, father, neighbour and friend.  Evidence at the trial had shown that the applicant had a significant gambling habit.  He would regularly place six or so TAB bets in the range of $3 to $200 on a Saturday.

[22] Also tendered were several medical reports[12] which disclosed that the applicant’s wife has a severe chronic illness and that the applicant was her full-time carer.  Those reports also indicated that the applicant himself has medical conditions for which he was receiving treatment.

The sentence imposed

[23] The prosecutor submitted that the appropriate range of imprisonment was between seven and eight years; the applicant’s counsel differed and put the appropriate range as between five and six years.  After referring to several authorities to which I shall return, the learned judge stated that he considered that the appropriate range for this offending was six to seven years but that allowing for the impact that a sentence of imprisonment would have on the applicant’s wife, the appropriate sentence was at the lower end of the range.

The proposed ground of appeal

[24] The proposed ground of appeal was developed from a description of the applicant as an admittedly active participant in the trafficking but who was used “by Ndoci as a vulnerable wholesaler who profited little and was most exposed.”  By reference to that description the applicant sought to draw a contrast with the sentences imposed in R v Parsons & Sanders[13] and R v Brienza[14] to which the learned judge had been referred by the prosecutor, and to make comparisons with the sentence imposed in R v Collins.[15]  Each of these cases was referred to in argument on this application as was the sentence imposed in R v Broad & Prior.[16]

[25] The description of the applicant as a vulnerable participant is referrable principally to his gambling habit and his wife’s illness.  To some degree that habit may well have provided the motivation for his participation but, as the learned judge recognised,[17] it could also have contributed to a picture of modest benefit from trafficking as gains from it were untraceably gambled away.  The description is one that ought to be regarded circumspectly on that account.

[26] In Parsons & Sanders, both offenders pleaded guilty to trafficking.  Parsons was a middle-aged man who was at the head of a chain of distribution of cannabis which had been brought into Australia from Papua New Guinea by others from whom he acquired it.  He had a substantial criminal record.  Sanders was a 37 year old woman who engaged in wholesaling for the network.  She had no criminal history.  The charged offences related to a period of about two months.  The telephone surveillance evidence disclosed four instances of supply of quantities of cannabis ranging from 1 kg to 20 kgs, the latter for a sum of $100,000, during that period.  The total quantity involved in the four supplies was about 35 kgs.  Parsons was sentenced to eight years imprisonment with a recommendation for consideration of parole after having served three years six months.  Sanders was sentenced to four years imprisonment with a recommendation for consideration of parole after having served eighteen months.  Both applications for leave to appeal against sentence were refused.  Evidently with deterrence in mind, Pincus and Thomas JJA considered that the $100,000 transaction together with the potential for regular repetition of large scale transactions was an important factor against Parsons’ application.[18]  For Sanders, their Honours rejected a submission that she merely passed on messages, observing that the intercepted telephone calls were suggestive of dealings by her “at a much lower level” than Parsons although her trafficking “had to do with some substantial transactions”.[19]

[27] The offender in Collins was 57 years old at the time of the offending.  He pleaded guilty to an ex officio indictment and provided useful information to the police which facilitated the detection and prosecution of other offenders.  He was sentenced to 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.  A statement of agreed facts revealed that he was the individual responsible for the organisation, supply and distribution of cannabis.  His main role was to transport the cannabis by a prime mover from South Australia to Queensland.  Telephone interceptions led to the location of 19.5 pounds of cannabis at his daughter-in-law’s residence in Queensland and the amount of $19,300 in cash in the prime mover whilst it was in transit back to South Australia.  In reference to several sentences to which the court was referred, Holmes JA, with whom Keane JA and M Wilson J agreed, made these observations with respect to the leniency of the sentence that had been imposed:

 

“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.”[20]

[28] In Brienza, the applicant and his two co-offenders were participants in an organised crime network which trafficked in commercial quantities of cannabis grown in South Australia.  The cannabis was packed into one pound units and transported to Queensland in motor vehicles specially modified for the purpose of concealing their illicit cargo.  The cannabis was delivered to wholesalers and distributed by retail sales in the Gold Coast area.  Brienza’s role in the network was as a wholesaler.  He was sentenced on the basis that he was supplied with a total of seventy pounds of cannabis with a street value of about $250,000 in 12 transactions over an 11 month period.  There was no evidence as to the extent of his profiting from the transactions.  He had no criminal history.  He was convicted on a plea of guilty to trafficking for which a sentence of six years imprisonment with parole eligibility after two years, was imposed.  His application for leave to appeal against sentence was refused.  The following observations of Keane JA, with whom the Chief Justice and Chesterman JA agreed, are instructive:

 

“The applicant also referred to this Court’s decision in R v Collins. In that case an appeal by an offender against a sentence of four years imprisonment suspended after six months for trafficking in cannabis was dismissed. The offending consisting of acting as a courier occurred over a period of only three months and seems to have involved only about three deliveries. The lower level of criminality in the offender in R v Collins compared with the criminality of the applicant here is readily obvious. And in any event, as is made clear in the reasons of Holmes JA, the sentence imposed on the offender in R v Collins was distinctly lenient.”[21] (Citations omitted.)

[29] In Broad & Prior, Broad was sentenced to seven years imprisonment with a recommendation for eligibility for parole after two years and three months.  His sentence was imposed on pleas of guilty to trafficking offences.  He had a substantial drug trafficking and possession conviction record.  He and Prior were participants in a distribution network similar to that in Brienza in that cannabis sourced in South Australia was transported to Queensland.  Broad was a wholesaler.  A statement of agreed facts recounted a Crown allegation that Broad had received amounts of cannabis totalling between 122 pounds and 222 pounds for on-selling.  The profit he might have thereby gained was not quantified.  Broad’s application for leave to appeal against sentence on the ground that it was manifestly excessive was refused. 

[30] Having regard to the observations of both Holmes JA and Keane JA concerning its leniency, with which I agree, I do not regard the sentence imposed in Collins as indicative of an appropriate sentence for offending of that degree.  I consider the sentence imposed on Parsons, whose scale of offending was noticeably more extensive than the applicant’s, as being beyond the range that ought apply here.

[31] Brienza and Broad and Sanders are factually comparable with the applicant’s circumstances.  They, as was the applicant, were active wholesalers.  In Brienza, the period of trafficking was longer, but a lower quantity of cannabis was involved.  The quantity trafficked by Broad was on a similar scale to that trafficked by the applicant.  These two cases provide firm support for the range of six to seven years adopted by the learned judge.  A sentence at the lower end of this range adequately allowed for the personal circumstances of the applicant and his wife.  Having regard also to the absence of a plea of guilty on the part of the applicant and his lack of remorse, the learned judge was quite justified in not ameliorating the sentence further by making a parole date eligibility recommendation. 

Disposition

[32] For these reasons, I do not regard the applicant’s sentence as being manifestly excessive.  Accordingly, I consider that the application should be refused.

Order

[33] I would propose the following order:

 

Application for leave to appeal against sentence refused.

[34] ATKINSON J: I agree with the reasons of Gotterson JA and the order he proposes.

Footnotes

[1] AB 309; Tr5-2 LL9-19.

[2] AB 1059.

[3] AB 1070.

[4] AB 767.

[5] AB 196; Tr3-38 LL1-8.

[6] AB 306; Tr5-7 LL50-53.

[7] AB 303; Tr5-4 LL5-10.

[8] AB 307; Tr5-8 LL10-15.

[9] AB 301; Tr5-2 L11.

[10] AB 309; Tr5-2 LL23-39.

[11] AB 310-311; Tr5-3 L56–Tr5-4 L6.

[12] Exhibit 3; AB 1083-1084.

[13] [1999] QCA 402.

[14] [2010] QCA 15.

[15] [2009] QCA 387.

[16] [2010] QCA 53.

[17] AB 310 Tr 5-3 LL 25-40.

[18] At [11].

[19] At [13].

[20] At [17].

[21] At [22].

Close

Editorial Notes

  • Published Case Name:

    R v Orley

  • Shortened Case Name:

    R v Orley

  • MNC:

    [2013] QCA 119

  • Court:

    QCA

  • Judge(s):

    White JA, Gotterson JA, Atkinson J

  • Date:

    21 May 2013

Litigation History

EventCitation or FileDateNotes
Primary JudgmentSC580/12 (No citation)25 May 2012Mr Orley was convicted by jury on a single count of carrying on the business of unlawfully trafficking in the dangerous drug cannabis. He was sentenced to imprisonment for six years with no recommendation as to parole.
Appeal Determined (QCA)[2013] QCA 11921 May 2013Application for leave to appeal against sentence refused: White JA, Gotterson JA, Atkinson J.

Appeal Status

Appeal Determined (QCA)

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.