R v Falconi[2014] QCA 230

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  The applicant, Daniel Falconi, pleaded guilty on 15 August 2013 to a Queensland indictment charging trafficking in cannabis between August 2011 and April 2012; producing cannabis in a quantity exceeding 500 grams in April 2012; unlawfully possessing cannabis in a quantity exceeding 500 grams in April 2012; having in his possession a set of scales for use in connection with the commission of the crime of possessing a dangerous drug in excess of 500 grams in April 2012; knowingly possessing money obtained from trafficking in a dangerous drug in April 2012; and possessing a vehicle obtained from trafficking in a dangerous drug in July 2012.  He also pleaded guilty to a Commonwealth indictment charging conspiracy to defraud on 24 July 2013.  The following day he was sentenced on the Queensland offences to an effective term of four and a half years imprisonment with eligibility to apply for parole after 18 months.  After taking into account 406 days of declared pre-sentence custody, he was eligible to apply for parole on the Queensland offences on 6 January 2014.  On the Commonwealth offence, he was sentenced to five and a half years imprisonment to commence on 6 January 2014 (the date he became eligible for parole on the Queensland offences) with a non-parole period of two years.

[2] On 29 April 2014 he applied for an extension of time to appeal against his sentence under s 671(3) Criminal Code 1899 (Qld).  His application was over seven months out of time.  If granted an extension, he would seek leave to appeal on the grounds that the sentence was manifestly excessive.

[3] In order to succeed in his application he should provide a sound explanation for the delay and establish that it is in the interests of justice to grant the extension of time: R v Tait[1] and R v Boyd.[2]

[4] He was self-represented in this application although he was represented at sentence.  He stated in his application for an extension of time that his reason for the delay and why the Court should extend time were as follows:

"After I was sentenced I received [a] letter from my lawyer advising me I should not appeal.  It was only until much later that I realised from other comparisons that my sentence [was excessive] and not imposed correctly."

[5] In his written and oral submissions he stated that he was moved through four different jails after his sentence.  This made it virtually impossible to access legal advice or a law library.  He has now been in contact with Legal Aid Queensland which will not assess the merits of his proposed appeal until he is granted an extension of time.  As soon as he apprehended his sentence was excessive and his previous lawyers had not done a good job, he endeavoured to pursue his appeal rights.

[6] As to the merits of his proposed appeal against sentence, he contended that his sentence was excessive when compared to that of his co-offender in the Commonwealth offence, Jordan Alexander, and to other like cases.  In his oral submissions he contended that the sentences for the Queensland offences were excessive only in that the parole eligibility date should have been earlier.  His barrister submitted and counsel for the Queensland DPP at sentence conceded that parole eligibility should be after 16 months.  In support of his submission that the sentence on the Commonwealth offence was manifestly excessive, he relied on R v Lake;[3] R v Chan;[4] R v Harm;[5] R v Philp[6] and R v Thompson.[7]  The combined effect of the cumulative sentence offended the totality principle discussed in Mill v The Queen.[8]  His sentence in reality was seven years imprisonment with parole eligibility after three years and six months, that is, after 50 per cent of the head sentence.  He submitted that he should have parole eligibility after one-third of the seven year head sentence to reflect the mitigating features.

[7] The applicant was a mature man in his mid-40s when he offended and had a concerning criminal history.  Most notably, he was sentenced in 1996 to three and a half years imprisonment with a parole recommendation after 14 months for assault with intent to steal and threatening to use actual violence while pretending to be armed with an offensive weapon.  In 1999 he was convicted and fined for relatively minor drug offences.  In 2000 he was sentenced to six years imprisonment for robbery with violence and 18 months cumulative imprisonment for deprivation of liberty, with a recommendation for parole after three years and nine months.

[8] The present Queensland offences occurred in this way.  As a courier responsible for transporting between 50 to 100 lbs of cannabis, he was an integral member of a large scale commercial operation trafficking in cannabis.  On at least 14 occasions between August 2011 and April 2012 he brought cannabis from Melbourne to the Gold Coast in a vehicle hired either in his name or under an alias.  He travelled in convoy with a co-offender.  The cannabis was concealed in the applicant's car boot.  The co-offender travelled ahead and informed the applicant by mobile phone if police were in the vicinity.  The applicant assisted in transporting over 700 lbs of cannabis with a street value of $2.24 million.  His co-offender paid him in cash for each trip.  The applicant deposited his ill-gotten gains into a Jupiter's Casino account, effectively laundering it.  The sentencing judge considered that he earned about $100,000 in this way.  When he was arrested police found him in possession of $15,300 cash and a Ferrari Coupe which he purchased for $100,000 with cash withdrawn from the Jupiter's account.  Police also ascertained through telephone intercepts that he had recently harvested a cannabis crop.  They found over 10 kg of cannabis being dried in his unit, together with cannabis seeds and electronic scales.  He was sentenced on the basis that this cannabis was for his personal use.

[9] The Commonwealth offence occurred in this way.  The applicant and Alexander set up a scheme relying on stolen identities.  They derived some identities from computer records and some were stolen from business premises in burglaries.[9]  Others were obtained when the applicant and Alexander falsely advertised a position as available, resulting in job applications and personal interviews.  They incorporated companies using the false identities as directors and made claims against the Commonwealth for GST refunds.  They also submitted individual tax returns using false identities.  The Australian Tax Office (ATO) paid them $202,780 in GST refunds.  They claimed an additional $101,274 which the ATO did not pay.  They wrongly received a further $19,168 from the ATO as income tax refunds.

[10] Victim impact statements from some whose identities were stolen set out the detrimental impact of the offending.  The scheme involved the applicants travelling interstate to register companies; setting up post office boxes in different places around Australia and using accounting firms around the country to lodge their claims.  The applicant and Alexander leased a shed to store documents including some containing details of the identities of many whose names had not been used in the fraud at the time of the offenders' arrest.  This suggested that the fraud was intended to extend and continue indefinitely.  The judge noted that when he sentenced Alexander on 25 June 2013 to six years imprisonment with parole eligibility after 21 months, he observed that the fraud involved 22 false identities and the use of 18 different accountants and nine companies.

[11] The judge considered the offence was a very serious example of a conspiracy to dishonestly cause a loss to the Commonwealth.  The offence affected all Australians as considerable public resources were allocated to its investigation.  A fraud on the ATO was a fraud on the revenue and on the whole community.  Those who attended the personal interviews considered that Alexander was the leading person and that the applicant was his assistant.  But the applicant attended the shed on at least 11 occasions; his fingerprints were found on many documents; and he travelled to both Sydney and Melbourne with Alexander.  His substantial criminal history did not suggest his rehabilitative prospects were promising.  Whilst Alexander's more active and primary role meant the applicant should receive a more moderate sentence, it should be only slightly more moderate.

[12] As to the Queensland offences, his Honour noted that it was a mitigating circumstance that the applicant stopped being a courier of his own volition, not because he was caught.  Nevertheless, a four year sentence was appropriate for the trafficking offence alone.  The applicant should be further punished for his additional, quite separate drug offending.  A sentence of four and a half years imprisonment with parole eligibility after 18 months was appropriate to reflect the total criminality of all the Queensland offences.

[13] As to the Commonwealth offence, Alexander's sentence of six years imprisonment with a non-parole period of 21 months reflected his complicated criminal history. Had he not served three months imprisonment for a related offence, his non-parole period would have been 24, not 21, months.  The judge further moderated Alexander's sentence as he committed the present offence on parole and had to serve out the whole of a previous sentence before serving his sentence on the Commonwealth offence.  But for these features, Alexander's sentence would have been higher.

[14] The judge determined that the proper sentence for this applicant on the Commonwealth offence was five and a half years which should be served cumulatively on the Queensland sentences.  After discussing the sentencing requirements under the Crimes Act 1914 (Cth), his Honour considered it prudent to first sentence the applicant on the Queensland offences and then make the Commonwealth sentence cumulative.  His Honour ordered that the Commonwealth sentence commence on the parole eligibility date for the Queensland sentences so that the Commonwealth sentence was partly but not wholly cumulative.  This reduction in accumulation was so substantial that it obviated the need for any further discount in accordance with the totality principle.  On the Commonwealth offence, his Honour ordered that the applicant be sentenced to five and a half years imprisonment to commence on 6 January 2014 with a two year non-parole period.

[15] In light of the applicant's concerning criminal history, mature age, and the serious nature of the drug offending, the sentence for the Queensland offences does not seem manifestly excessive.  It is true that the applicant's counsel asked for a sentence of four years imprisonment with parole eligibility after 16 months (one‑third of four years) on the Queensland offences.  The judge determined to impose the slightly heavier sentence of four and a half years imprisonment and set parole eligibility after 18 months (one-third of four and a half years).  While it is rare to find closely comparable cases for this type and variety of drug offending, the sentence imposed is supported in a general way by R v Brienza;[10] R v Collins[11] and R v Burgoyne.[12]  The head sentence was moderate in the circumstances.  In setting parole eligibility after 18 months, the judge adequately reflected the few mitigating features, namely, the plea of guilty, cooperation with the administration of justice and that the applicant ceased offending of his own volition.  The sentence for the Queensland offence was not manifestly excessive.

[16] The applicant rightly identified that the effect of the partially cumulative Commonwealth sentence is that the total sentence imposed for all the offending is seven years imprisonment with parole eligibility after three years and six months.  This is a heavier sentence than the six year sentence with a non-parole period of 21 months imposed on Alexander, but that is largely because Alexander was not involved in or sentenced for the applicant's extensive Queensland drug offending.  And as his Honour explained, Alexander had also served other sentences since his arrest and prior to his sentence on the Commonwealth offence so that his time in custody could not be declared as time served under the sentence on the Commonwealth offence.  The judge did not make the applicant's Queensland and Commonwealth offences fully cumulative; the Commonwealth sentence commenced after the applicant had served but 18 months of the four and a half year sentence for the Queensland offences.  This amelioration and the setting of early parole and non-parole periods ensured the combined effect of the sentencing was not crushing.  As this Court noted in R v McMillan[13] this difficult exercise of discounting cumulative head sentences and setting parole eligibility and non-parole periods when sentencing offenders for Queensland and Commonwealth offences is not purely a mathematical exercise.

[17] The cases to which the applicant has referred do not demonstrate that his combined sentences for the Queensland and Commonwealth offences were manifestly excessive, even when comparing his sentence for the Commonwealth offence to that of his co-offender, Alexander.

Conclusion

[18] The applicant's explanation for the delay in pursuing his appeal rights is unsworn and unimpressive, especially in light of his considerable past experience in the criminal justice system.  In any case, he has not demonstrated that if an extension of time were granted, he has genuine prospects of demonstrating that his sentence was manifestly excessive.  It follows that it is not in the interests of justice to extend time.  The application for an extension of time must be refused.

ORDER:

The application for an extension of time to apply for leave to appeal against sentence is refused.

[19] FRASER JA:  I agree with the reasons for judgment of the President and the order proposed by her Honour.

[20] ATKINSON J:  I agree with the reasons of the President and with her Honour’s proposed order.