R v Bost[2014] QCA 264

SUPREME COURT OF QUEENSLAND

[1] FRASER JA: On 26 November 2012 the applicant pleaded guilty to trafficking in dangerous drugs between 1 June 2008 and 10 February 2011 (Count 1) and possessing a dangerous drug on 9 February 2011 (Count 2).  On 27 August 2013 he was sentenced to nine years imprisonment upon Count 1 and it was declared that the conviction was for a serious violent offence.  He was sentenced to a concurrent term of two years imprisonment on Count 2.  The sentencing judge declared that 926 days spent in pre-sentence custody between 14 February 2011 and 27 August 2013 be deemed time already served under the sentence.

[2] The applicant has applied for leave to appeal against the sentence.  The grounds of his application focus upon the declaration that count 1 was a serious violent offence.  The grounds are as follows:

“1.The sentence is manifestly excessive because of the declaration of being a serious violent offender.

2. That Her Honour erred in making a declaration of being a serious violent offender.
3. That Her Honour erred in her Application of the definition of serious violent offender to order that there be a declaration of serious violent offender.”

[3] The applicant’s outline of argument advanced further grounds, which I will number for ease of reference, that (4) the sentencing judge failed to apply an integrated approach to sentencing, that (5) the sentencing judge failed to give reasons, and that (6) there was no justification for the declaration.  The applicant’s arguments upon those additional grounds also focussed upon the declaration.

Circumstances of the offences

[4] The applicant was sentenced upon an agreed statement of facts and schedule of telephone intercepts.  In June 2010 police officers targeted “large scale trafficking of methylamphetamine and other dangerous drugs”.  The applicant was the “primary target and syndicate leader orchestrating the control and supply of methylamphetamine from local and interstate suppliers to syndicate members via a network of suppliers and couriers in various locations in Queensland and interstate, including Sydney NSW and Darwin, NT”.  From August 2010 police intercepted numerous telephone communications between the applicant and members of the syndicate relating to “supplying and sourcing drugs, prices for the commodities and co-ordinating the operation through various syndicate members”.  The applicant communicated with people about the supply of drugs and related matters on an almost daily basis between 4 October 2010 and 25 January 2011.  He conducted his trafficking business for 32 months between 1 June 2008 and 10 February 2011.  A financial analysis showed that in that period the applicant’s expenditure exceeded his known income by $621,912.03.  The Crown and the applicant accepted that the value of the applicant’s trafficking business was “certainly well in excess” of that figure, but that it was not possible to quantify the true value accurately.

[5] On 9 February 2011 police executed simultaneous searches of syndicate members’ properties.  At the applicant’s properties police found 23.327 grams of the schedule 2 drug Clenbuterol (Count 2), more than $5,000 in cash made up of smaller amounts in different places and envelopes, ammunition, a knuckle duster weapon, 19 mobile phones (some of which were in unopened boxes), eight sim cards, and five laptop computers.

[6] Some syndicate members implicated the applicant in drug trafficking.  Wheat lived on the applicant’s property and acted as his “distribution manager and organiser in the trafficking business”.  Wheat was paid for his services in methylamphetamine.  He estimated that he had participated on the applicant’s behalf in the sale or distribution of more than 112 ounces of methylamphetamine in the 18 months prior to 9 February 2010.  On average he had supplied one to two ounces per week at prices which ranged between $16,000 and $18,000 per ounce.  Stefankowski told police that he couriered “bricks” of cash to Sydney for the applicant and received steroids in exchange.  He also did “drug runs” to other syndicate members in Townsville, Sarina and Rockhampton for the applicant as well as a run to Darwin in October 2010.  He referred also to runs to Sydney with cryovac packages of money, returning to Bundaberg with packaged drugs on each occasion.  On 24 December 2010 police intercepted Stefankowski leaving the home of a Rockhampton-based supplier.  Police found $146,351 cash in Stefankowski’s car.  On the same day police intercepted Smith upon his return to Townsville after having met Stefankowski at Mackay.  Smith was found with 181.667 grams of substance containing 89.67 grams of pure methylamphetamine.

[7] Maher told police that from around July 2010 he obtained commercial quantities of methylamphetamine from the applicant or from the other members of the syndicate that the applicant controlled, at a cost of $12,000 per ounce.  The applicant had told Maher how to cut the drug with glucose.  Maher referred to occasions upon which the applicant supplied him with the drug, including one occasion on which the applicant supplied four ounces.  The applicant gave Maher a mobile telephone to use when he called either the applicant or Wheat.  Maher estimated he had paid Bost $140,000 in cash and still owed Bost about $82,000 for drugs.  The applicant had supplied him with about half a dozen different mobile telephones during the course of their dealings.

[8] Moran told police that between 2008 and 2010 he bought approximately 20 ounces of methylamphetamine from the applicant, usually paying about $3,500 per ounce.  He estimated that he had paid the applicant the total amount of $100,000 cash for methylamphetamine.  Another customer, Cross, purchased steroids from the applicant in November 2010.

The applicant’s personal circumstances

[9] The applicant was between 25 and 27 years old when he committed the offences and he was 30 years old when he was sentenced.  He had a criminal history of offences commencing in 2001 when he was still a child.  He was sentenced to a variety of punishments, including fines, probation and community service, for possessing a prohibited drug, traffic offences, wilful damage, and offences of dishonesty.  He was again fined for traffic offences in the following two years.  In May 2002 the applicant was sentenced to 18 months imprisonment, with release upon the date of sentence after 105 days pre-sentence custody, subject to supervision upon conditions which included counselling and treatment for drug and alcohol abuse.  In August 2006 the applicant was sentenced in the ACT Supreme Court to a suspended term of imprisonment of nine months for an offence of discharging a loaded firearm causing a person fear.

[10] The applicant’s Queensland criminal history comprised offences committed in late 2007 of possessing dangerous drugs, unlawful possession of weapons, bringing stolen goods into Queensland, unlawful possession of restricted drugs, and possession of utensils and pipes.  The applicant committed those offences during the currency of a recognisance to be of good behaviour for two years which was a condition of the suspension of the nine months imprisonment imposed in August 2006 in the Australian Capital Territory.  Upon a search of the applicant’s residence police found amphetamine, weapons (including a handgun and stun gun), 300 Viagra tablets, and glass pipes.  The applicant was sentenced in the Bundaberg Magistrates Court on 6 November 2008 to 12 months imprisonment, and to lesser concurrent terms of imprisonment, suspended after the 70 days which the applicant had served in pre-sentence custody.  The date of the sentence was fixed as the parole release date in relation to the imprisonment of one month imposed for one charge.  The applicant’s conduct charged in count 1, trafficking in dangerous drugs, occurred after that sentence was imposed and breached the terms of his suspended imprisonment and his parole.

[11] The applicant had a supportive family.  His parents wrote very moving letters in support of him.  The applicant’s partner, the mother of one of his children and the mother of another child who regarded him as her father, also wrote a letter in support of the applicant.  The applicant relied also upon references from other people who spoke highly of him.  The applicant had another child of a relationship he had formed when he was much younger.

Submissions about the serious violent offence declaration

[12] In view of the applicant’s focus upon the appropriateness of the serious violent offence declaration it is appropriate to note that the parties’ submissions at the sentence hearing concluded with a submission on that topic by the applicant’s senior counsel.  He acknowledged that it would be difficult to submit that the sentencing judge would not make the declaration, particularly if the sentence was seven and a half years imprisonment, but that the sentencing judge could refrain from making a declaration if the imprisonment extended to nine years.  The sentencing judge remarked that everything about the offending “puts it out of the ordinary for offending of this type” so it would be hard not to make the declaration.[1]  Senior counsel for the applicant asked the sentencing judge to consider not making the declaration but acknowledged that it was not his most significant submission and that his more important submission was that the applicant should not be sentenced to more than nine years imprisonment.

Sentencing remarks

[13] The sentencing judge referred to the agreed statement of facts and summarised the circumstances of the applicant’s offences and his personal circumstances.  The sentencing judge took into account that this was a “large-scale example of trafficking”, that the applicant was the head of the syndicate, that he controlled a large quantity of drugs and a large amount of money over a long period of time, and that there were a number of people working for him.  After referring to the applicant’s extensive criminal history, the sentencing judge observed that it was “dwarfed” by the applicant’s drug trafficking in Bundaberg.  The sentencing judge noted that drug trafficking could involve “small level dealers who deal on the street or just supply to their friends, to middle level dealers, to persons like yourself who engage in large scale commercial trafficking in these dangerous drugs which lay waste to many lives and many families in our regional communities”.  The sentencing judge expressly took into account the applicant’s pleas of guilty.  The sentencing judge also took into account other significant factors which it is not necessary to discuss at this point.  Most relevantly for present purposes, the sentencing judge explained that the declaration that count 1 was a serious violent offence was made because of “the extremely serious nature of the offending”.

Consideration

[14] The applicant argued that the sentencing judge erred by first deciding to impose a sentence of nine years imprisonment and then enquiring of the applicant’s senior counsel whether a declaration should be made.  He submitted that the primary judge should first have raised the question whether a declaration should be made in the context of a sentence of seven and a half years imprisonment or a more severe sentence less than nine years imprisonment.  That argument misconstrued remarks made by the sentencing judge which were directed at affording the applicant’s senior counsel an opportunity to make focussed submissions as to whether a declaration ought to be made as part of his submissions as to the appropriate term of imprisonment.  In any event, those remarks in the course of the parties’ submissions were not the reasons for the sentence.

[15] The applicant argued, correctly, that the necessary “integrated” approach to sentencing[2] required the sentencing judge to take into account the effect of the declaration when considering the appropriateness of the head sentence.  There is again no reason to doubt that the sentencing judge did so.  Nor can it be accepted, as the applicant argued, that the sentencing judge did not take into account all of the mitigating factors in formulating the sentence.  The sentencing judge adverted to all of those factors (including matters which I have not specifically mentioned) in her Honour’s various sentencing remarks.

[16] The applicant submitted that the declaration was not justified in all of the circumstances including that it was not alleged that the applicant had used violence or threats of violence, no weapons were found and it was not alleged that he had used weapons in his offending, and the only matter which made the offending unusual was the applicant’s high degree of cooperation with the authorities.  That argument overlooked the unusual seriousness of the applicant’s offending as described in the sentencing remarks, including in particular that the applicant, with a relevant criminal history which included drug and weapons offences, was the head of a syndicate involved in large scale trafficking in schedule one dangerous drugs and that the applicant ran his trafficking business with a network of suppliers and couriers in Queensland and other places in Australia.  The applicant referred to R v Saunders[3] but in that case the sentencing discretion was held to have miscarried because the sentencing judge did not articulate any circumstances which justified the making of the declaration.  On appeal the Court refrained from making a declaration, observing in that respect that the trafficking offence was in respect of a schedule two drug.[4]  The applicant’s trafficking through a syndicate in a schedule one drug was far more serious.

[17] Considerations of transparency and accessible reasoning require that adequate reasons are given for making a declaration.[5]  In R v McDougall & Collas[6] it was held that “the exercise of the discretion [to make a serious violent offence declaration] will usually reflect an appreciation by the sentencing judge that the offence is a more than usually serious, or violent, example of the offence in question and, so, outside “the norm” for that type of offence”.

[18] In imposing a term of nine years imprisonment for the trafficking offence, the sentencing judge stated that a declaration that the offence was a serious violent offence was made ‘in view of the extremely serious nature of the offending’.  On its own that remark may well have been insufficient to explain adequately the reasoning for the exercise of the discretion.  However, that sentencing remark should not be read alone, but in its context.  Fairly construed, in the context of what preceded the remark, it is apparent that her Honour was referring to the combination of factors outlined in the sentencing remarks going to the serious nature of the offence.  These included that the offending concerned an example of large scale trafficking of methamphetamine and other drugs by an individual, who was the head of the syndicate in question, with control over large amounts of drugs and money over an extensive period, who engaged a number of people and who came before the court with an extensive criminal history including for drug offences.  Indeed, the sentencing judge’s reference to the “extremely serious” nature of the offending reflected her Honour’s remark immediately before passing sentence that the applicant’s offending was “out of the ordinary for offending of this type”.  The sentencing judge’s reasons for making the declaration were sufficient and conventional.

[19] For those reasons grounds 2 – 6 of the proposed appeal are not established.

[20] It is appropriate to commence the consideration of ground 1 by discussing the sentencing judge’s notional starting point for the sentence, 15 years imprisonment.  The submission for the Crown at the sentence hearing was that the sentence in R v Kostopoulos[7] (which was imposed after a plea of guilty) indicated that this was an appropriate starting point before taking into account mitigating factors other than the applicant’s plea.  The applicant’s senior counsel argued that because R v Kostopoulos involved a more serious offence the notional starting point might instead be 14 years imprisonment.  It was submitted for the Crown that the appropriate discount for the applicant’s mitigating factors (which extended in significant respects beyond the plea of guilty) should result in a sentence of 12 years imprisonment.  Because such a sentence would automatically attract a declaration, the reduction in the minimum custodial period would amount to 2.4 years (the difference between 12 years minimum custody under a head sentence of 15 years, and 9.6 years minimum custody under a head sentence of 12 years).  Defence counsel submitted that such a reduction was inadequate in light of the extent of the various mitigating factors and submitted that the appropriate reduction was in the order of 40 to 50 per cent, which (when applied to a head sentence of 15 years) would result in a sentence in the range between seven and a half years and nine years imprisonment.[8]

[21] As will be apparent, the sentence was at the high end of the range advocated by the applicant’s senior counsel and substantially below the sentence sought by the Crown.

[22] A point made by the applicant about the starting point for the sentence was that the case against him did not include aggravating features of the offending in R v Kostopoulos.  That offender used threats of physical violence to recover drug debts, he was found in possession of weapons and body armour, and he used some people as “guinea pigs” to test drugs.[9]  On the other hand it must be borne in mind that in R v Kostopoulos the Court held that comparable sentencing decisions demonstrated that 16 years imprisonment after a plea of guilty was within range for the “grand scale” of that offender’s trafficking offence.[10]  Whilst a conservative estimate of that offender’s completed sales was $811,000, the period of his trafficking was only six months compared with the 32 month period of the applicants’ offence.  Otherwise the circumstances of each offender’s offences and their personal circumstances are comparable.[11]  Each had a relevant criminal history and each committed the trafficking offence (or part of that offence in the case of the applicant) in contravention of court orders arising out of earlier offending.  Like that other offender, the applicant did not plead guilty at the earliest opportunity.  The applicant entered his guilty plea only after committal proceedings which involved the cross-examination of the co-offenders and some police officers, although I bear in mind that there was some negotiation with the Crown, particularly concerning the period of the trafficking.  Having regard to the decision in Kostopoulos, a notional sentence after taking into account the applicant’s plea of guilty of 15 years imprisonment, with the automatic serious violent offence declaration, could not be regarded as excessive.

[23] The parties referred to other sentencing decisions, principally R v Galeano,[12] R v George,[13] and R v Westphal.[14]  In Galeano the Court resentenced the offender on appeal to a term of nine years imprisonment.  That offender’s trafficking was significantly less substantial than the applicant’s, the finding being only that over the approximately two year period of trafficking the applicant sold drugs with an unsubstantiated value of $390,000.  His enterprise was part of a network involving co-offenders, but it was not suggested that the offender was in a position analogous to the applicant’s position as the head of a syndicate whose operations extended beyond Queensland.  Furthermore, the sentence took into account the contribution made by that offender’s arrest to his substantial physical injuries and an enduring psychiatric disorder, which were likely to make his time in prison more difficult.  In that case, the Crown did not identify any particular circumstance of the offender or his offending which might be submitted to be special so as to justify a serious violent offence declaration.

[24] In George, the Court refused an application for leave to appeal against a sentence of 14 years imprisonment after a plea of guilty to trafficking in dangerous drugs and associated counts of supply and possession of dangerous drugs and possession of a mobile phone used in connection with the trafficking.  That offender’s criminal history included short terms of imprisonment and fines for previous drug offences.  The period of offending and the trafficking offence was less than nine months.  The income from trafficking is not clear, but it appears to have been less than the income received by the applicant.  To the extent that this decision is relevant at all, it suggests that the starting point of 15 years imprisonment adopted by the sentencing judge was appropriate as a starting point after taking into account the applicant’s plea of guilty.

[25] In Westphal, the Court set aside a sentence of ten years imprisonment imposed upon a plea of guilty to trafficking and other drug offences and re-sentenced the offender to nine years imprisonment with parole eligibility after approximately six years.  The reason for the reduction in the sentence was that the ten year sentence, which was found to be at the higher end of the appropriate range, was imposed without regard to evidence, only put before the court on the appeal, of assistance provided by that offender to the authorities.  The case is immediately distinguishable because, whilst the Court acknowledged that there was force in a submission that a sentence without the declaration risked inadequately reflecting the criminality, it was held that a declaration should not be imposed “purely to ensure a sufficiently heavy sentence”.[15]  In this case the declaration was added for the conventional reasons given by the sentencing judge.  Furthermore, that offender’s trafficking offence was much less serious than the applicant’s, in that the total trafficking period was 15 and a half months and the offender derived $215,000 from the trafficking.  That offender was not the head of a syndicate trafficking in drugs on the scale of the applicant; rather, he was a “middleman” for an unnamed third person.[16]  Westphal does not provide any support for the applicant’s arguments.

[26] As to the sufficiency of the discount applied by the sentencing judge to the appropriate starting point of 15 years imprisonment with the declaration, it is sufficient in these reasons to express my conclusion that the resulting sentence was not manifestly excessive.

Order

[27] The application should be refused.

[28] MORRISON JA:  I have read the reasons of Fraser JA and agree with those reasons and the order his Honour proposes.

[29] PHILIPPIDES J:  I agree with the reasons for judgment of Fraser JA and the order he proposes.