R v Harbas[2013] QCA 159

SUPREME COURT OF QUEENSLAND

1. HOLMES JA: I agree with the reasons of Fraser JA and the orders he proposes.

2. FRASER JA: On 30 October 2012 the applicant pleaded guilty to nine counts in an ex-officio indictment.  For trafficking in dangerous drugs he was sentenced to six years imprisonment with parole eligibility fixed on 30 October 2014, two years after the date of sentence.  He was sentenced to two years imprisonment for each of four offences: one count of unlawful production of a dangerous drug and three counts of unlawful possession of dangerous drugs.  On the remaining three counts, possessing a thing used in connection with the commission of the crime of trafficking dangerous drugs, unlawfully possessing a relevant thing, unlawfully possessing a weapon, namely a category R weapon, and unlawfully possessing a weapon, namely a category H weapon, the applicant was sentenced to nine months imprisonment.  The terms of imprisonment were to be served concurrently.

3. The applicant has applied for leave to appeal against his sentence on the ground that it is manifestly excessive. His contention is that the appropriate sentence is four to five years imprisonment with parole or suspension immediately or after 12 months.

Circumstances of the offences

4. The circumstances of the offences were described in a schedule of facts. On 28 August 2010 police intercepted the applicant’s vehicle in which he had travelled from New South Wales to Caboolture.  Police found some 2,000 MDMA tablets containing approximately 161 grams of the drug in the vehicle.  A telephone intercept had earlier revealed to police that the applicant was selling drugs, including LSD.  The applicant was arrested and charged with the offence of possession of a dangerous drug in a quantity exceeding two grams (count 3 on the indictment).  The only other offence for which the applicant might then have been prosecuted was the supply of LSD; the prosecutor told the sentencing judge that, before the applicant made admissions, the police were aware that the applicant was selling and negotiating with buyers to sell LSD in quantities between 100 to 200 tablets but they did not know the frequency of sales or the period of time during which the applicant had been selling LSD, and they did not know he was in the business of trafficking in methylamphetamine and cannabis.

5. On 8 September 2010 the applicant participated in a record of interview in which he made admissions to the police of trafficking in amphetamine, MDMA, LSD and cannabis. On the same date the applicant consented to police searching his home and property and co-operated with them in the search. Police found five cannabis plants, .107 grams of pure methylamphetamine, 131 grams of cannabis and three firearms. In records of the interview, the applicant frankly admitted to being a large scale distributor of dangerous drugs. He admitted to trafficking in amphetamine and MDMA during the preceding 12 months, between 2 September 2009 and 8 September 2010, with a heavy involvement since December 2009.  The applicant purchased quantities which varied between one ounce and one pound and he resold the drug in one ounce lots to his own customers.  Up to four pounds of the amphetamines would be stored at his premises at any one time.  The applicant sold amphetamines on the Sunshine Coast to about six regular customers, but he also sold amphetamines to others.  He made about $500 profit per ounce and sold up to four ounces per week.  He had also sold amphetamines in the Northern Territory and arranged for the sale of amphetamines in North Queensland.  He had acted as a debt collector on occasions for his supplier, attending at the premises of other amphetamine drug suppliers and obtaining cash from them which was owing to his supplier.  He had paid his supplier about $250,000 for amphetamines since December 2009, $150,000 of which was for himself.

6. The applicant said that he had obtained the MDMA from the same person who supplied the amphetamines. In early 2010 he obtained about 1,000 MDMA tablets which he on-sold to associates. He paid $12,000 for those tablets and made a profit of about $3 to $4 per tablet. When the applicant was intercepted on 28 August 2010 he was in the process of transporting tablets he had purchased for $25,000 on credit from his main supplier to other persons. He had made an arrangement for an associate to purchase 500 of the tablets with the intention of on-selling them and he intended to courier the remaining tablets to another person. The applicant told police that in early 2010 he was obtaining LSD from an associate and on-selling it to others in various amounts. He said that on one occasion he sold one batch of 200 LSD tabs to another person.  The telephone intercept evidence indicated that he had attempted to sell those tablets for $2,500.

7. The applicant told police that he had been involved in the distribution and production of cannabis between 1 November 2008 and 8 September 2010. He had regularly supplied cannabis to numerous people. He sold between a half pound and a full pound every week. He usually sold the drug in one ounce lots but had also sold it in pound lots. He charged $300 per ounce. The applicant had a regular client base of 10 or 12 people to whom he supplied cannabis on a weekly basis. As well as growing his own cannabis to sell the applicant bought cannabis from a local supplier in multiple pound quantities.

8. The applicant admitted that he had become involved in the distribution of drugs for purely financial reasons. He had no legitimate form of income. All of his income was derived from the supply of drugs. At the peak of his drug trafficking the applicant sold between $10,000 and $20,000 worth of drugs (amphetamines, MDMA, LSD and cannabis) per week. He never made more than $2,000 profit per week. The applicant said that he had been trying to reduce his involvement in the weeks prior to his detection but faced difficulties because of money he owed. The applicant admitted that he knew that he was committing offences and that he had no lawful excuse.

9. The offence of producing a dangerous drug (count 2) related to the five green cannabis plants growing in a cleared garden area which police found in the search on 8 September 2010. The applicant admitted that the plants were cannabis and belonged to him. He told police that he had grown two hydroponic cannabis crops in the past and that the plants found on the property were left over from a dismantled hydroponic crop.  The applicant said that he and an associate had bought 15 plants each and grown them in the hydroponic setup which he had established.  He gave further details of the crops to police.  The offence of possession of a dangerous drug over 2.0 grams (count 4) related to a tub containing 18 grams of powder which was hidden in a boxing bag at the rear of the premises, to which the applicant directed the police during the search.  The applicant told police that the substance was his and that it was methylamphetamine.  An analysis showed that it contained .107 grams of pure methylamphetamine.  The applicant also told police of a clip seal plastic bag containing 131 grams of green leafy material (cannabis) which was hidden in a PVC pipe buried in the ground.  The applicant told police that he had intended to use and sell the material.  Also in the buried PVC pipe was a set of electronic scales.  The applicant told police they were his and that he had used them to weigh the cannabis and amphetamines (count 6).

10. In the course of the police search on 8 September 2010 the applicant showed police a hole in the ground where he had buried a pill press which a friend of his had purchased for $200,000 (count 7). The applicant said that he had been storing it at his premises as a favour to his friend. The applicant had arranged for the pill press to be removed after he was intercepted by police in August 2010. The possession of weapons charges (counts 8 and 9) related to a loaded sawn-off shotgun which the applicant declared to police during the 8 September 2010 search, which the applicant told police he possessed for self-protection, and a .22 bolt action rifle with an attached “sound muffler”; the “sound muffler” transformed the rifle from a category A weapon, ordinarily the subject of a summary charge, to a category R weapon: (count 8).

The applicant’s personal circumstances

11. The applicant had left school at 15 and, until recently, was unable to read without difficulty and unable to write. Nevertheless he had rarely been without a job as a young man.  He was 28 to 29 years old when he committed the offences and he was 32 years old at the time of sentence.  He had previous convictions for drug related offences.  The applicant was sentenced to 12 months imprisonment, with immediate release on parole, when he was 27 years old for four offences of entering premises and committing indictable offences when he was 26 years old.  His criminal history also included possession of cannabis when he was 17, 27 and 28 years old and producing dangerous drugs (cannabis) when he was 29 years old, (the applicant was found in possession of cannabis plants in pots which he said he was growing for his own personal use).  Whilst on bail for the latter offence he was found to be in possession of cannabis.  That was during the period in which he was also trafficking in cannabis.

12. The Crown accepted that the applicant was addicted to cocaine. (It was not suggested that he was trafficking in dangerous drugs to feed his cocaine addiction.) The Crown also accepted the applicant was addicted to cannabis and that he obtained cannabis for that addiction through his trafficking business, but he trafficked in the other dangerous drugs, most significantly methylamphetamine, purely for profit. The Crown accepted that the applicant was a social user of those other drugs. Defence counsel submitted to the sentencing judge that the applicant used significant amounts of drugs himself, his use of the amphetamine alone costing him in excess of about $1,000 a week. Defence counsel also submitted that whilst the applicant’s intention was certainly to make money, about which he was candid with the police, he ultimately owed money and there was no evidence of any large sums of money in the applicant’s bank accounts or elsewhere.

13. There was unusually impressive evidence of rehabilitation. Since the applicant’s arrest he had stopped taking illicit drugs of any kind. That was evidenced by several reports of blood tests which were tendered at the sentencing hearing. The applicant had obtained employment since his arrest, having candidly told his employer about his criminal history and undertaken regular drug and alcohol tests by the employer. He had completed a TAFE literacy course to address his functional illiteracy. The applicant had also formed a permanent relationship with a supportive partner, who was expecting their first child.  He had been working six days a week to save money for his family, particularly to help his family through the period when he would be imprisoned.

Co-operation with the authorities

14. Section 13A of the Penalties and Sentences Act 1992 relevantly provides:

“(1)This section applies for a sentence that is to be reduced by the sentencing court because the offender has undertaken to cooperate with law enforcement agencies in a proceeding about an offence, including a confiscation proceeding.

…

(5)If oral submissions are to be made to, or evidence is to be brought before, the court relevant to the reduction of sentence, the court must be closed for that purpose.

(6)The penalty imposed on the offender must be stated in open court.

(7)After the imposition of the penalty, the sentencing judge or magistrate must—

(a)close the court; and

(b)state in closed court—

(i)that the sentence is being reduced under this section; and

(ii)the sentence it would otherwise have imposed; and

(c)cause the following to be sealed and placed on the court file with an order that it may be opened only by an order of the court, including on an application to reopen the sentencing proceedings under section 188(2)—

(i)the written undertaking;

(ii)a record of evidence or submissions made relevant to the reduction of sentence and the sentencing remarks made under paragraph (b) …”

15. After the sentencing judge heard submissions about the matters which I have so far discussed, the sentencing judge continued the proceeding in closed court before re‑opening the court to pronounce the sentence.  The sentencing judge ordered that a record of the evidence and of his sentencing remarks during the period when the court was closed, together with some documents with which the sentencing judge was provided, should be sealed and placed on the court file with an order that the envelope may be opened only by an order of the court, including on any application to reopen the sentencing proceedings under s 188(2) of the Penalties and Sentences Act 1992.

16. At the hearing of the application for leave to appeal the parties acknowledged in submissions that, as the applicant had acknowledged in an affidavit, it had become widely known that the applicant had co-operated with the authorities, including by giving evidence against some alleged drug offenders. Nevertheless, confidentiality inheres in aspects of that co-operation. Those provisions in s 13A of the Penalties and Sentences Act 1992 which are designed to preserve confidentiality do not apply of their own force in appellate proceedings in the Court of Appeal, but the Court of Appeal has inherent and statutory powers to limit publication of its proceedings where that is necessary in the administration of justice.^[1]  Notwithstanding the importance of the public interest in open justice, it is appropriate in this application, as it was at the sentence hearing, that the evidence and submissions concerning the applicant’s co-operation with the authorities should be kept confidential.  Accordingly, with one exception, until any further order the balance of my reasons should be published only to the parties.

Compliance with the procedure in s 13A of the Penalties and Sentences Act 1992

17. The exception concerns the procedure adopted by the sentencing judge in the in‑camera hearing.  In submissions filed by leave after the hearing of the application, it was contended for the applicant that the sentencing judge had not complied with s 13A of the Penalties and Sentences Act 1992.  It is practicable to deal with this submission without referring to any confidential information.

18. The sentencing judge adopted the methodology advocated by the prosecutor and the applicant of identifying a notional head sentence, discounting it by taking into account the mitigating effect of the applicant’s self‑incrimination, and discounting it further to take into account the full extent of both the applicant’s past and promised co-operation with law enforcement authorities.

19. That approach did not comply with s 13A. Section 9(2)(i) of the Penalties and Sentences Act 1992 requires sentencing judges to have regard to “how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences” up to the time when the sentence is imposed.  Other co-operation before the imposition of sentence, such as the voluntary giving of evidence implicating other offenders, would be taken into account as “any other relevant circumstance” referred to in s 9(2)(r).^[2]  Section 13A does not apply in relation to these forms of co-operation with the authorities.  In R v M,^[3] the Court observed that it was “desirable to repeat that s. 13A requires the sentencing court to take into account only the future co-operation which at the time of trial has yet to be provided” and that “the indicative sentence contains the additional period of imprisonment that the offender will have to serve if the promised co-operation is not forthcoming”.  The Court went on to refer to the provisions of the Penalties and Sentences Act 1992 which require past co-operation to be taken into account as a relevant factor in the sentence “quite independently of any s. 13A consideration.”  The Court concluded that “[a]n indicative order that took into account both past and future co-operation would place the applicant at risk of losing the benefit of credit that he had already earned.”

20. Furthermore, s 13A(7)(b) requires the sentencing judge or magistrate to “state in closed court – (i) that the sentence is being reduced under this section …”. The sentencing judge did not make any such statement. The requirement for such a statement is a reminder that the stated indicative sentence takes into account all relevant sentencing considerations, excepting only the offender’s undertaking to co-operate in the future with law enforcement agencies in proceedings about an offence.

21. In these respects the sentence proceeding miscarried.

Disposition and orders

22. For the reasons given in my confidential reasons handed down to the parties today the appropriate orders are:

1. Grant the application for leave to appeal.

2. Allow the appeal.

3. Vary the orders made in the Trial Division by:

1. On count 1 of the indictment, substituting for the sentence and order made in the Trial Division:

1. a sentence of imprisonment for five years; and

2. an order that after the applicant has served twelve months imprisonment the term of imprisonment be suspended for an operational period of five years during which the applicant must not commit another offence punishable by imprisonment if the applicant is to avoid being dealt with under s 147 of the Penalties and Sentences Act 1992 for the suspended sentence.

2. On counts 2-5, substituting for the sentence imposed in the Trial Division a sentence of imprisonment for a period of 12 months.

4. Otherwise confirm the orders made in the Trial Division.

5. The confidential reasons for judgment of Fraser JA handed down to the parties today and marked “A” be not further published, a copy thereof be placed in a sealed envelope together with the transcript of that part of the proceedings which was not conducted in open court, and that envelope be opened only by order of the Court or upon an application under s 188(2) of the Penalties and Sentences Act 1992 (Qld).

6. Grant the applications filed on 10 April 2013 and 11 April 2013 to adduce evidence to the extent identified in those confidential reasons.

23. PETER LYONS J: I agree with the reasons of Fraser JA and the orders he proposes.