R v Boyd[2013] QCA 335

SUPREME COURT OF QUEENSLAND

1. HOLMES JA:  I agree with the reasons of Morrison JA and the order he proposes.

2. FRASER JA:  I agree with the reasons for judgment of Morrison JA and the order proposed by his Honour.

3. MORRISON JA:  On 28 March 2013, the applicant was convicted, on his own plea of guilty, of one count of trafficking in a dangerous drug (methylamphetamine and ecstasy), over a period of 10 months in 2010.

4. The applicant was sentenced to eight years imprisonment and a parole eligibility date was fixed at 28 November 2015.  That is, two years and eight months from the date of the sentence.

5. The applicant seeks leave to appeal against his sentence on the ground that it was manifestly excessive.

6. Applications for extension of time and leave to appeal were filed at the Townsville Correctional Centre on 14 August 2013.  The applicant should have filed his application for leave to appeal against sentence within one calendar month of the sentence being imposed upon him.^[1]  Consequently, that is a delay of three and a half months.

7. On a consideration of an application for extension of time within which to seek leave to appeal, it is well established that there are two matters for the court to consider, namely:

1. whether there is good reason for the delay; and

2. whether it would be in the interests of justice to grant the extension.^[2]

8. In Tait, the Court said:^[3]

“These suggest that the Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension.  That may involve some assessment of whether the appeal seems to be a viable one.  It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant’s appeal, and take that into account in deciding whether it is a fit case for granting the extension.  Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue.  Another factor is the length of the delay, it being much easier to excuse a short than a long delay.”

9. The offence with which the applicant was charged was that, between 1 January 2010 and 8 November 2010, the applicant and one Williams carried on the business of unlawfully trafficking in dangerous drugs.  Thus the charge was a conjoint one, on the basis that the applicant and Williams carried on the relevant business.

10. The applicant was represented by counsel on the sentencing. An agreed schedule of facts was tendered and became exhibit 1.  The nature of the offending appears from the agreed facts.

Summary of Agreed Statement of Facts

11. In May 2010, a person named C’Ward had his telephone monitored by police, as a result of which the applicant became a person of interest.  On 4 November 2010, the police recorded a conversation between C’Ward and the applicant in which it appears C’Ward paid the applicant $6,000 or $7,000.  During the recorded conversations the applicant referred to working for someone else by stating the “boss is coming up for this one”.

12. As a result of the intercepted telephone calls the police executed a warrant on the applicant’s premises. They found, amongst other things:

1. $88,000 in cash in a safe in the lounge room;

2. $1,800 in cash in the applicant’s bedroom;

3. six tamazepan tablets in the applicant’s bedroom;

4. a heat sealing machine, clip seal plastic bags, a set of digital scales in a clip seal plastic bag, 88 ecstasy tablets, 20 grams of methylamphetamine and a “tick list” in the kitchen;

5. 446 grams of cannabis in a vacuum sealed bag on the rear patio area;

6. a shotgun and a .22 calibre rifle in the ceiling;

7. a clip seal plastic bag containing 1.5 grams of methylamphetamine in the garage; and

8. a cross-bow in the spare room.

13. The ecstasy tablets in the applicant’s home had a street value of between $2,760 and $3,680. The methylamphetamine had a potential street value of between $7,000 and $10,000.

14. The “tick list” revealed transactions whereby various persons:

1. paid amounts to the applicant, reducing their drug debts;

2. received ecstasy tablets on credit; and

3. received amphetamines in various quantities.

15. The “tick list” indicated that the applicant had received about $28,000 for drugs sold, that he had supplied 1,100 ecstasy tablets for a total of $16,100, and had supplied five and a half ounces of amphetamine for $22,550.

16. The applicant was arrested on 20 October 2010, at which time he had $2,430 cash on him, and a mobile phone.  The applicant told the police that the items belonged to him and that the drugs were for his personal use.  He also said that the money on him was money that he had saved over a long period of time.  He declined to be formally interviewed and was later charged and released on bail.

17. The applicant’s telephone provided the identity of persons who were on the “tick list”. They included the nicknames for Williams and C’Ward. Putting the nicknames to the details on the “tick list” it became apparent that Williams had paid some $22,000 off his drug debt, and had received 1,100 ecstasy tablets (at least 700 of which were on credit) and several ounces of amphetamine.  By the same method, it was apparent that C’Ward had paid $6,000 off his drug debt, and taken two ounces of amphetamine on credit.

18. The applicant’s mobile phone also revealed dealings with at least three other persons.

19. The text messages also revealed that on 22 September 2010 the applicant supplied Williams with 600 ecstasy tablets, and 3.5 grams of methylamphetamines, for which Williams paid cash.  The text messages also revealed a dealing in ecstasy between the applicant and the person named Van der Merwe.

20. On 21 October 2010, the day after the applicant’s arrest and release on bail, police intercepted a telephone call between the applicant and C’Ward.  The applicant told C’Ward that the police had seized his personal phone but that he still had his “work” telephone.  The conversation included exchanges about the following:

1. the applicant told C’Ward that he would introduce C’Ward “to my right hand man, he’s gonna have to run things for a little bit”;

2. the applicant told C’Ward that “Yeah, shits gonna hit the fan whoever said something …”, to which C’Ward replied, “yeah, someone said something, that’s what’s written in the statement”’;

3. the applicant told C’Ward that he [C’Ward] should tell the police if they rang that the applicant was finding cheap cars for C’Ward; the applicant went on “ Cause, I’m gonna try to get some of that money back, and I’m gonna get receipts for cars and shit like that … tell  em that, mate I find him cheap cars, he buy  em off me … He does  em up and sells  em, so yeah …”; and

4. the applicant told C’Ward that “We got an idea on who it was, we just got to, yeah, get some more, info … yeah, yeah, it ain’t gonna be pretty ‘cause my boss is comin’ up for this one … that was, that was his money …”.

21. On 4 November 2010, the applicant phoned C’Ward saying that he was now “doing things differently” in case the police were watching and listening to him.  Later on the same day there was a discussion between the applicant and C’Ward about whether they thought the business would keep “rolling”.  The applicant said that it would, and that it would take only 13 days for it to be back on track.  The applicant again told C’Ward that he was running his business a little differently.

22. On 7 November 2010, a search warrant was executed on the applicant and Williams’ home. At that point the applicant was in the process of moving into the home. The police seized four of Williams’ telephones, and five mobile telephones from the applicant.  The following items were located:

1. $38,000 secreted in the pair of Williams’ army boots;

2. “tick lists” and cash deposit lists in Williams’ bedroom; and

3. six clip seal plastic bags that contained ecstasy and methylamphetamine powder in the kitchen.

23. On an adjacent hillside police located buried items, namely 825 ecstasy tablets with a street value of between $24,750 and $33,000, and a pistol and ammunition.

24. Text messages from Williams’ telephone indicated that from 3 September to 5 September 2010 he discussed the supply of drugs and payment for them with at least two people.

25. Investigation by the police showed that the applicant was on Centrelink benefits from 17 December 2009 through to 27 August 2010.  In the period between April 2009 and November 2010 the applicant had either deposited or made cash purchases for an amount of around $28,000.

26. Williams had lost about $23,000 in gambling between November 2008 and November 2010.  He had other losses from gambling.  Williams had made cash purchases or deposits for an amount of about $85,000 from February 2010 through to November 2010.  Together with the cash found in his room, the total was about $123,000.

27. The “tick lists” found in Williams’ bedroom indicated in excess of $100,000 worth of drugs being sold on credit.

28. Van der Merwe said the applicant had been seen with as much as three pounds of amphetamine, 5,000 to 10,000 ecstasy tablets, and 10 pounds of cannabis.  He had also been seen with a large amount of cash, up to $50,000, and a number of weapons including the pistol which had been found buried on the adjacent hillside to Williams’ home.

29. Van der Merwe was aware that the applicant was in partnership with a person called Harding, who had been sentenced on 16 March 2012 to eight years imprisonment.  After Harding was arrested on 7 July 2010, the applicant formed a partnership with Williams.

30. Van der Merwe stated that “tick books” that were found in her parents’ house belonged to the drug business that was being run by the applicant and Harding. This “tick list” showed a total of about $450,000 in drugs that were sold, and a total of about $300,000 in cash received.

31. A person called Warneke was introduced to the applicant by Van der Merwe, in June 2010.  The applicant then began supplying Warneke with ecstasy.  Warneke saw the applicant with three bags, each of which contained 500 ecstasy tablets.  He also saw a lot of money sitting next to the drugs.

Submissions on sentencing by the applicant

32. Counsel for the applicant gave an extensive review of the applicant’s life and history. That included an incident in where the applicant’s 12 month old son had died in suspicious circumstances as a result of a drowning incident whilst in the care of the applicant’s mother.  The applicant had to turn off the son’s life support.  As a result of the incident the applicant had become estranged from his mother.  At a later time the applicant had been the subject of a glassing incident as a result of which he was left blind in one eye, which affected his ability to work.  The consequences of those events on the applicant and his prospects to work were emphasised.  It was said that the despair the applicant felt after he lost sight in his eye, and suffered “financial devastation” as a result of his reduced employment prospects, along with the death of his son were the reasons he turned to drug use, at the end of 2009.^[4]

33. Counsel for the applicant also drew attention to the fact that Harding had received eight years imprisonment and whilst the Crown was seeking a term of nine years, there were powerful factors affecting the applicant and the fact that he entered into the drug business through emotional weakness and financial strain, and a sense of loss.  Counsel went on to submit expressly that:  “a sentence of between eight and nine years would be appropriate, with relief after he’s served one-third to reflect those personal matters that are peculiar to him”.^[5]

Sentencing remarks

34. The learned sentencing judge reviewed the agreed facts as outlined above. He described the applicant’s involvement as being in “quite a substantial trafficking operation involving sales or transactions totalling in the hundreds of thousands of dollars”.^[6]  He also noted that the applicant had continued with Williams as his associate, after Harding was arrested.

35. The applicant’s lack of criminal history, and the significant events in his life leading to his own drug use were taken into account by the primary judge, as was the applicant’s significant history of work both in the printing industry and as a salesman.

36. One significant feature taken into account by the sentencing judge was that the agreed facts showed that the applicant was “[c]ynically … prepared to continue this lucrative business even after your arrest and release on bail”.^[7]  That was an obvious reference to the discussions between the applicant and C’Ward where the continuation of the business was discussed, during which the applicant saying it would only take 13 days for the business to be back on track, and that he was going to attempt to get some of his money back.

37. The sentencing judge identified the fact that the applicant’s counsel “did not cavil with a sentence at eight years in the circumstances”.^[8]  Having taken into account the applicant’s antecedents, the fact that he had no criminal history, his worthwhile prospects of rehabilitation, and the fact that at an early stage the applicant’s intention to plead guilty had been notified, the learned judge imposed a term of eight years with a parole eligibility period fixed at one-third of that term, so that parole eligibility was fixed at 28 November 2015.

Explanation for the delay

38. The applications were filed quite a number of months beyond the time period permitted. The explanation given is that the applicant’s sister was too busy or just too stressed to call for another lawyer, having been asked by the applicant in April to find one. For whatever reason, the applicant’s sister did not call anyone. The applicant says it was not until May that he found another lawyer, but by then finances had fallen through and, therefore, he contacted Legal Aid for assistance.

39. In my opinion the explanation is insufficient. The applicant was sentenced on 28 March 2013 and it was not until May that he says he found another lawyer.  It is then said that even though another lawyer had been found, finances had fallen through and so Legal Aid was contacted.  However, none of that explains the applicant’s own inactivity.  The applications which have been filed are prepared by him, and not a lawyer.  Those applications, and the applicant’s outline, do not suggest any lack in his own ability to have moved sooner.  At any appropriate time the applicant could have filed his own documents which, in due course, could have been amended if need be.

40. I do not consider that good reason has been shown to account for the delay.

Interests of justice

41. For the reasons which follow I do not consider that the sentence imposed upon the applicant was manifestly excessive.

42. The court’s attention has been directed to a number of cases in which sentences have been imposed for trafficking. They include R v Ungvari,^[9] R v Johnson,^[10] R v Ikin^[11] and R v Westphal.^[12]  The applicant contends that they all involved persons with criminal histories whereas he had none.

43. Ungvari involved trafficking in methylamphetamine over a three month period, as well as other charges concerning supply of a dangerous drug, possession of a dangerous drug, assault on police officers, fire arms offences, possession of tainted property, possession of property used for drug purposes, possession of tainted money, and obstructing a police officer.  The offender was 29 years at the time of the sentence and 27 to 29 at the time of the offences.  He had a drug dependency problem consequent on being injured in a car accident in which his girlfriend died.  He also had a significant criminal history.  A sentence of eight years and a parole eligibility date of two years and eight months was imposed on appeal.

44. Johnson involved two counts of trafficking over a period of five years, one involving methylamphetamine and the other cannabis.  The offender was an addict aged about 34 years when he commenced trafficking, and the business he operated supplied his own habit as well as providing for the living expenses of himself and his partner.  He had a history of minor drug and street offences.  A sentence of eight years, and 18 months as the parole eligibility date was imposed on appeal.

45. In Ikin the offender was 32 when convicted on his own plea of trafficking in methylamphetamine.  He had a history of drug related offences, though not trafficking, and had resolved a previous drug addiction.  He had about $50,000 worth of drugs which he intended to sell in order to finance his next purchase, admitting that he was in the business “for the long haul” to “make some money”.  The business had been operating about 18 months.  A sentence of eight years with a parole eligibility date of two years and three months was not disturbed on appeal.

46. In Westphal the offender pleaded guilty to two counts of trafficking in methylamphetamine and other counts related to possession of a dangerous drug.  The trafficking had occurred over a period of 14 and a-half months and involved over $200,000 in trafficking income.  The sentencing judge described it as involving “substantial trafficking in a schedule 1 drug over a prolonged period” which had a significant commercial aspect and resulted in Westphal deriving substantial income.  It also involved the use of an addict to further the trafficking process.  Westphal did not have the benefit of youth and the evidence did not indicate that the trafficking was undertaken to support an addiction.  He had previous convictions for drug offences, including supply, but not trafficking.  He had pleaded guilty and cooperated with the police by providing a statement.  His sentence of 10 years was reduced on appeal to nine years with parole eligibility after six years.

47. I do not consider that the sentence imposed by the learned primary judge can be demonstrated to be manifestly excessive. The sentence of eight years was expressly conceded as being appropriate, and falls directly in the range of sentences applied for trafficking offences of a similar nature:  Ikin and Johnson give guidance here.  Likewise the parole eligibility period of two years and eight months falls very much within the range revealed in the authorities to which I have referred.

48. The applicant made a submission that the authorities referred to all involved offenders with substantial criminal histories. That factor does not, in my opinion, make them unreliable as a guide to the range of sentences applicable. In any event the scale of the applicant’s trafficking outweighs that in all of those cases.

49. Further, the applicant’s outline seeks to rely on two main issues in relation to the sentence imposed. The first is that the phone calls between the applicant and C’Ward are said to have been edited by unknown persons in some unspecified way that was disadvantageous to the applicant.

50. The second is that the applicant says he did not know at the time he was sentenced that Williams had already admitted ownership of the 800 ecstasy tablets and the pistol which were buried near Williams’ house. So, he contended, he was “charged” with owning something he did not own.

51. The applicant’s outline also seeks to advance that Van der Merwe was a heavy drug user and her statements against him were contradictory.

52. The sentence proceeded on an agreed statement of facts. There was no suggestion of edited or doctored phone calls. The items found buried near the house were identified by the prosecutor, without demur, in the sentencing submissions as being part of the joint business between the applicant and Williams.^[13]  Counsel for the applicant told the sentencing judge that the facts were not in dispute.  Nothing was said to indicate that the buried items were not the product of the joint business being run by the applicant and Williams.  Further, the statement of agreed facts included that Van der Merwe had seen the applicant with the very pistol which was found buried near the house.  The applicant’s contention misunderstands that the case against him was that whoever owned the tablets or the pistol, they were property of the business.

53. It is evident that the real thrust of the applicant’s outline is to try to challenge the statement of agreed facts. In the circumstances there is little prospect of that succeeding.

Conclusion and Disposition

54. In my opinion the applications for extension of time and leave to appeal should be refused because no good reason has been shown to account for the delay, the interests of justice do not require the grant of an extension, and in any event the prospects on appeal are quite poor given that the sentence was not manifestly excessive.

55. I would refuse the application for an extension of time.