R v Onyebuchi; ex parte Director of Public Prosecutions (Cth)
[2016] QCA 143
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- R v Onyebuchi; ex parte Director of Public Prosecutions (Cth)[2016] QCA 143
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R v Onyebuchi; ex parte Director of Public Prosecutions (Cth)[2016] QCA 143
R v Onyebuchi; ex parte Director of Public Prosecutions (Cth)[2016] QCA 143
SUPREME COURT OF QUEENSLAND
CITATION: | R v Onyebuchi; Ex parte Commonwealth Director of Public Prosecutions [2016] QCA 143 |
PARTIES: | R |
FILE NO/S: | CA No 286 of 2015 SC No 405 of 2015 |
DIVISION: | Court of Appeal |
PROCEEDING: | Sentence Appeal by Director of Public Prosecutions (Cth) |
ORIGINATING COURT: | Supreme Court at Brisbane – Date of Sentence: 26 October 2015 |
DELIVERED ON: | 7 June 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 May 2016 |
JUDGES: | Gotterson JA and Applegarth and Flanagan JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADQUATE – where the Crown appeals against sentence – where the respondent pleaded guilty to one offence of importing a commercial quantity of a border controlled drug – where the respondent was sentenced to seven years’ imprisonment with a non-parole period fixed at three and a half years – where, at sentencing, the Crown provided a table of comparative cases – where the appellant argues that the respondent’s offending was objectively and subjectively more serious than the comparative cases relied upon by the learned trial judge – whether the sentence imposed was manifestly inadequate R v Agboti [2014] QCA 280, considered R v Harris [2009] QCA 370, considered R v Nikolovska (2010) 209 A Crim R 218; [2010] NSWCCA 169, considered R v Pham (2015) 90 ALJR 13; [2015] HCA 39, applied R v Todoroski (2010) 267 ALR 543; [2010] NSWCCA 75, considered R v Tran (2007) 172 A Crim R 436; [2007] QCA 221, considered R v UE [2016] QCA 58, considered Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, considered |
COUNSEL: | G R Rice QC for the appellant P J Callaghan SC for the respondent |
SOLICITORS: | Director of Public Prosecutions (Commonwealth) for the appellant Legal Aid Queensland for the respondent |
- GOTTERSON JA: I agree with the orders proposed by Flanagan J and with the reasons given by his Honour.
- APPLEGARTH J: I agree with the reasons of Flanagan J and with the orders proposed by his Honour.
- Flanagan J: On 26 October 2015 the respondent pleaded guilty in the Supreme Court of Queensland to one offence of importing a commercial quantity of a border controlled drug contrary to sections 307.1(1) and 11.2(1) of the Criminal Code (Cth).
- He was sentenced to seven years’ imprisonment with a non-parole period fixed at three and a half years. 505 days of pre-sentence custody were declared to be time served under the sentence.
- The Commonwealth Director of Public Prosecutions appeals against the sentence imposed. The sole ground of appeal is that the learned sentencing judge imposed a sentence that was, in all the circumstances, manifestly inadequate.
- For reasons which follow I am of the view that the sentence imposed was manifestly inadequate. The respondent should be re-sentenced to a period of imprisonment of nine years with a non-parole period fixed at four and a half years with the relevant declaration for pre-sentence custody.
Circumstances of the offence
- The offence occurred between 30 April 2014 and 27 May 2014. The border controlled drug imported was methamphetamine. A commercial quantity for methamphetamine is 750 grams. The weight of impure methamphetamine imported was 997.4 grams with a purity of 79.4 per cent. The pure weight was 791.9 grams, 41.9 grams over a commercial quantity. The estimate of value of the imported drug was between $673,000 and $2.02 million.
- A statement of facts was tendered at the sentence hearing. It discloses the respondent’s involvement in the importation. The respondent accepts the accuracy of the statement of facts and the description of his involvement.[1]
- On 17 May 2014 Australian Customs and Border Protection Service officers intercepted at DHL Express, an international mail article. The article was addressed to “Cug Warwick” at Williamson Place, Redbank Plains, Queensland. The invoice for the article noted the shipper as “Ben” at an address in Guangzhou, China.
- When Customs officers opened the article they located a cardboard box containing a foot massager. Concealed inside the foot massager were two packets wrapped in black plastic. One package was partially deconstructed and a number of smaller packages wrapped in black plastic were located. The packages contained a white crystalline substance which tested positive for methamphetamine.
- Between 21 and 23 May 2014 the Australian Federal Police left a number of messages with the contact number for the article. On 24 May 2014 a male person claiming to be Guy Warwick called DHL. He arranged for the package to be delivered to 1 Williamson Place, Redbank Plains on 27 May 2014. Australian Federal Police officers attended at the address on that date. The article was accepted by Isaac Boimah. He stated to police that he was not Guy Warwick but that he was to collect the package on Guy’s behalf. Boimah was subsequently placed under arrest and a search warrant was executed. A false Belgium passport in the name of Guy Nettle Warwick depicting a photograph of Boimah was located.
- Boimah participated in an interview with police in which he stated that he was taking delivery of the package on behalf of a friend, “Kachi” (the respondent). This admission implies that the respondent would have been involved in the next disposition of the drugs were it not for police intervention.[2] Boimah had supplied the name Guy Warwick to the respondent to use as the consignee details on the package. Boimah was also able to identify a mobile telephone number as the contact number for the respondent. This mobile number was registered to the respondent. He had departed for Singapore on 28 May 2014 and was arrested on his return to Australia on 8 June 2014. When arrested the respondent was found to be in possession of two mobile phones, both of which had been used in connection with the importation, and a receipt with consignee details and the DHL tracking number written on it. An examination of one of the respondent’s mobile phones revealed a text message received from a Thai phone number from a person known as “King Dave”. The mobile phone also revealed a call made to DHL at 2.38 pm on 27 May 2014. This call lasted 10 minutes and 41 seconds. Immediately following that call was a call from the respondent to Boimah’s mobile. The respondent’s second mobile phone revealed in his contacts “King Dave Thai” and “Tochukwu China”.
- From the statement of facts the appellant identifies the respondent’s involvement in the importation as follows:
“(i)He travelled to Guangzhou between 6 and 27 April 2014, inferentially for a purpose connected to the importation.
(ii)He obtained the consignee name and address from Boimah.
(iii)He sent the consignee name and address to King Dave on 30 April 2014.
(iv)He sent the consignee phone number to King Dave on 9 May 2014.
(v)Later on 9 May, he received a message from King Dave concerning the nature of the concealment, and that further information would be forthcoming about tracking it online.
(vi)On 15 May the respondent received the DHL tracking number from King Dave and an instruction to check it.
(vii)On 24 May, he sent King Dave the DHL enquiry phone number.
(viii)He was in contact with King Dave on the morning of 27 May in anticipation of delivery, saying that he had ‘called them’ and was ‘waiting for them to come.’
(ix)He called DHL on the afternoon of 27 May, after the scheduled delivery, and then attempted to call Boimah.
(x)On 30 May he contacted King Dave saying ‘I organized the stuff … But this guy phone has been switched off since …’
(xi)He had numbers for ‘King Dave Thai’, ‘Tochukwu China’, and ‘Isaac Liberia’ (Boimah) stored in his phone. Call logs show that he:
- made numerous calls to ‘King Dave Thai’ between 4 February and 4 June;
- attempted to contact Boimah numerous times after the scheduled delivery time;
- also made several calls to ‘Tochukwu China’ between 1 and 5 June.
(xii)He engaged in a number of exchanges with King Dave about the significance of Boimah’s having become uncontactable.
(xiii)On 3 June, he asked whether King Dave could arrange with the ‘guys in China to redirect the package …’.
(xiv)He engaged in online tracking of the package, and browsing the DHL Contact Centre, on 27 May, 30 May, and 3 June.
(xv)He conducted other internet searches on 19 May.”[3]
The sentencing proceedings
- The prosecutor identified the salient features of the case as including the following[4]:
(a)the seriousness of the offence which carries a maximum sentence of life imprisonment;
(b)the significant quantity of methamphetamine which is almost 800 grams pure and is equivalent to approximately 390 times the marketable quantity;
(c)the respondent’s role which, although not that of a principal, was essential to the carrying out of the importation; and
(d)the respondent stood to benefit financially from his role given the value of the drugs involved.
- As well as the statement of facts the prosecutor tendered a comparative sentence schedule.[5] The schedule lists 11 cases, all at the intermediate appellate level, including five decisions of this Court.[6]
- The prosecutor explained to the learned sentencing judge that the cases referred to in the schedule involving intermediaries such as the respondent (as opposed to couriers) concerned the importation of only a marketable quantity of a border controlled drug. The maximum penalty in respect of these cases was 25 years as opposed to life imprisonment.[7]
- Her Honour requested the prosecutor to identify the three cases from the schedule which were most comparable.[8] Her Honour was referred to three cases which involved intermediaries and a marketable quantity of drugs namely R v Harris[9], R v Todoroski[10] and R v Nikolovska[11].
- In Harris the importation concerned 1,489 grams of cocaine found by Customs in a parcel containing boxes of chocolates. A commercial quantity is 2,000 grams. Harris took possession of the delivery. She then called her co-accused Oprea who came to collect the parcel. Harris’ reward was a used car and the forgiveness of a debt owed to Oprea. After referring to these facts the prosecutor made the following submission in relation to Harris:
“Harris is of more assistance to your Honour. She pleaded guilty, although it was considered a late plea. She was a mature woman with some previous convictions, which included minor drug and property offences, indicative of her being a drug user, which was put forth in mitigation at sentence. She was said to have been bullied by Oprea during and after the offences were committed, and he attempted to talk her into basically taking the fall. She was sentenced on the basis that she had no involvement in the planning and was therefore not privy to the precise nature or the quantity of the drug, but she certainly was reckless as to that. She received a sentence of four years with a non-parole – sorry, seven years, your Honour, with a non-parole period of four years. And that was not disturbed on appeal.
In my submission, your Honour, Mr Onyebuchi should be considered, objectively and subjectively, more serious than Ms Harris in that, in my submission, he was more of an organisational role, he has ties to the actual importers and also, obviously, Mr Onyebuchi is charged with a more serious offence involving a commercial quantity rather than that of a marketable.”[12]
- As to Todoroski, his role was to provide his sister’s address to the importer as a consignee address. He provided a fake identification so his sister could take delivery of 825.7 grams of heroin. A commercial quantity of heroin is 1,500 grams. He arranged for the receipt of the drugs. He was to be paid $2,500. Todoroski received a head sentence of six and a half years imprisonment with a non-parole period of three years nine months. The prosecutor made the following submission as to how Todoroski should be used as a comparable:
“As I’ve indicated, your Honour, that’s a marketable quantity. It’s approximately half of the legislated commercial quantity of heroin involved in that matter. He was sentenced to six and a-half years with a non-parole period of three years and nine months, and that was not overturned on a Crown appeal against sentence. And so again, your Honour, in my submission, Mr Onyebuchi, objectively and subjectively, needs to be considered more seriously than Mr Todoroski ... he didn’t offer admissions or assistance to the AFP. He has, on my view of the evidence, closer ties to the organisers and importers. And obviously it was a lesser – less serious offence with which he was charged, being that of the marketable quantity rather than the commercial quantity.”[13]
- The head sentence in Nikolovska was six years imprisonment with a non-parole period of three years nine months. The case concerned a consignment containing oil filters which were found to contain 1,431.1 grams of cocaine. The shipment was organised by the co-offender and sent from Western Africa. It was addressed to a retired Qantas employee. Nikolovska, also a Qantas employee, was to receive the package and deliver it to the co-accused. She was to receive an amount of $10,000. Her role involved passing information to the co-accused advising him and monitoring progress of the consignment. Nikolovska was 48 years of age, born in Macedonia with two adult children. She married at the age of 14 and was subject to domestic violence. She also suffered from chronic depression, a gambling addiction and she had one prior conviction for a dishonesty offence. On a Crown appeal against sentence, she was re-sentenced to seven and a half years imprisonment with a non-parole period of four years and nine months. In relation to Nikolovska the prosecutor again identified that it was a marketable rather than a commercial quantity.[14]
Sentencing remarks
- Her Honour identified the following matters relevant to mitigation:
- the respondent’s early plea of guilty. Her Honour noted however that the respondent had not provided to authorities any other details of the offending[15];
- he had no previous convictions[16];
- he had impressively performed in prison whilst on remand including being well mannered and co-operative and undertaking a number of courses[17].
- As to the respondent’s personal circumstances, her Honour noted that the respondent was 29 years of age at the time of the offending.[18] He migrated to Australia in 2011 and has a work history.[19]
- In sentencing the respondent her Honour took into account the amount of methamphetamine and its street value of up to $2 million. Her Honour acknowledged that it was serious offending and that methamphetamine caused enormous damage to the community. Her Honour sentenced the respondent on the basis that his involvement was at a higher level than just a courier. Whilst he was not a principal, he was well up the chain of this importation and the activity which he participated in was deliberate and planned and it was only for profit.[20] Her Honour was sceptical that the appellant’s financial reward was limited to a loan of $10,000 to assist his business.[21]
- Her Honour identified Harris as the most comparable authority with the following qualifications:
“That suffers, I suppose, a little as a comparator because it is a marketable quantity, not a commercial quantity, of drug. But it was accepted, I think, by both counsel that it was essentially comparable, because it was a high end of a marketable quantity. Ms Harris, unlike you, had previous convictions, so that, I suppose, goes in your favour. Comparing the facts, though, she was a drug user in pretty desperate financial circumstances, by the look of the facts, and she was said to be bullied by and under the influence of her co-offender, Oprea. She had a late plea and, again, I think your case compares favourably to that. She was sentenced to seven years, and a non-parole period of four years was set. The Court of Appeal in Queensland refused an appeal against that sentence.”[22]
- Her Honour also referred in her sentencing remarks to Todoroski and Nikolovska.
Consideration
- The appellant submits that the sentence was manifestly inadequate in light of the following:
- The quantity of drug involved, and the seriousness of the offence.
- The level of culpability as found by the learned sentencing judge.
- The respondent’s mitigation was unremarkable.
- Having regard to those matters, the sentence imposed was markedly different from the pattern of sentencing in this Court and other intermediate appellate courts, such that this Court should conclude that there must have been some misapplication of principle.[23]
- The appellant further submits that having correctly identified the involvement of the respondent in the importation her Honour’s sentencing discretion must have miscarried because the sentence imposed did not reflect the extent of the respondent’s involvement.[24]
- The principles governing an appeal against sentence on the basis of manifest inadequacy are well established. In Wong v The Queen[25] Gaudron, Gummow and Hayne JJ stated by reference to House v The King[26]:
“… appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.”
Their Honours continued[27]:
“In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case. Those features will also include those that differentiate between particular cases: the quantity of drug involved, the offender’s knowledge about what was being imported, the offender’s role in the importation, the reward which the offender hoped to gain from participation. All these are matters properly to be taken into account in determining a sentence. … In general, however, the larger the importation, the higher the offender’s level of participation, the greater the offender’s knowledge, the greater the reward the offender hopes to receive, the heavier the punishment that would ordinarily be exacted.”
- The severity of a sentence should therefore reflect not only the requirement for general deterrence but also the salient features of the relevant importation, including the quantity of the drug, the offender’s involvement in the importation and the anticipated reward.
- More recently in R v Pham[28] French CJ, Keane and Nettle JJ restated the correct approach to the assessment of sentences in other cases:
“(1)Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.
(2)The consistency that is sought is consistency in the application of the relevant legal principles.
(3)Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.
(4)Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.
(5)For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.
(6)When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so.
(7)Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed to comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”
- In support of the submission that the sentence imposed was markedly different from the pattern of sentencing in this Court, the appellant referred to R v Tran[29], R v Agboti, R v UE[30] and sought to distinguish R v Thathiah and R v Calis.[31] The respondent submits that the appellant’s reference to a selection of cases does not make it possible to draw a pattern with boundaries so rigid as to permit the conclusion that a case does not fall within it.[32] This is because every sentence must be imposed following the synthesis of relevant circumstances.[33] I do not however, understand the appellant’s reference to “the pattern of sentencing in this Court” as seeking to depart from the principles stated in Wong. Rather, the appellant’s reference to comparable decisions of this Court is consistent with the passages quoted above from Wong and Pham. The comparable cases permit the identification of like features which bear upon the formulation of applicable principles.[34] The consistency that is sought is consistency in the application of the relevant legal principles.[35]
- In Tran, the appellant pleaded guilty on an ex officio indictment to importing a marketable quantity of heroin. The heroin had a pure weight of 1,473 grams and a value in excess of $1 million. The drug was concealed inside barrels of fish. At first instance Tran was sentenced to 15 years imprisonment with a non-parole period fixed at seven years. The Court of Appeal held that the sentence was manifestly excessive and re-sentenced Tran to 10 years imprisonment with a non-parole period of five years. He was re-sentenced on the basis that he was a courier with no previous convictions. He was married with two children and had a good work history. He was to receive $10,000 for collecting two barrels of fish from a woman at a market in Cambodia, and bringing them to Brisbane, where an unidentified person would meet him to exchange the drugs for money.
- In deciding that the sentence was manifestly excessive both Keane JA (as his Honour then was) and Atkinson J had regard to the fact that the importation concerned a marketable rather than commercial quantity of heroin, which was a less serious offence.[36]
- As the offence in Tran was a federal offence, Atkinson J identified the need for consistency in the sentences imposed, not just within Queensland but across Australia.[37] After an extensive analysis of comparable sentences, her Honour concluded that the sentence imposed was manifestly excessive and therefore revealed an error in the exercise of the sentencing discretion.[38] In re-sentencing her Honour identified a number of matters which distinguished the sentence imposed in Tran by the Court of Appeal with the present case. Tran was indicted on the less serious offence of importing a marketable quantity of a border controlled drug. His role was that of a courier rather than that of an organiser. He lacked any detailed knowledge of what he was carrying. He participated in a record of interview with police, admitting to his offending and provided information about his contacts in Cambodia and the phone number he was to contact in Brisbane upon his arrival.[39]
- It must be accepted, as submitted by the appellant, that Tran “was clearly a less serious case than the present and the substantial difference between the two sentences cannot be put down to discretion.”[40]
- Tran was referred to in Agboti, which was one of the cases in the comparative sentence schedule.[41] Agboti pleaded guilty to one count of importing a commercial quantity of methamphetamine. The pure weight of the drug was 2,326.5 grams, with an average purity of 79 per cent. The street value was between $3.4 million and $10.2 million, although the “wholesale” value was between $454,000 and $779,000.[42] She was 23 years of age at the time of committing the offence.
- In the months preceding the offence Agboti was disowned by her father. She became pregnant to a former boyfriend and shortly prior to the commission of the offence had an abortion. She had begun to drink heavily and was smoking cannabis on a daily basis.
- At first instance she was sentenced to 11 years imprisonment with a non-parole period of five years and six months. Peter Lyons J (with whom Muir and Morrison JJA agreed) conducted an extensive analysis of the cases considered by Atkinson J in Tran and the subsequent decisions of Calis and Thathiah. By reference to section 16A of the Crimes Act 1914 (Cth), his Honour noted that ultimately the task of a sentencing judge is to “impose a sentence … that is of a severity appropriate in all of the circumstances of the offence”.[43] In determining if the sentence was manifestly excessive and in re-sentencing Agboti to a term of nine years and six months imprisonment with a non-parole period of four years and six months his Honour observed[44]:
“[51]However, there are circumstances which make this case very different from those previously discussed. None of the cases involved such an unusual series of events, which was likely to have left the applicant in a fragile state of mind, bordering on desperation. Her age at the time is also of relevance in considering the significance of these events.
[52]Much reliance was placed by the respondent on the quantity of drugs involved. Indeed, it appears to have been influential in the submissions made by the applicant’s counsel as to the appropriate sentence. However, there is no suggestion the applicant had any knowledge of the quantity. She was initially asked to make the delivery, without reward, save for recompense for the extra cost of travelling to Australia, and no doubt at some inconvenience. Ultimately, she was offered no more than a cheap airline ticket involving a complicated journey via Australia and ultimately to Sweden. Those circumstances are unlikely to have suggested a drug importation of a scale which in fact occurred. No doubt, suspecting that drugs were involved, she ran the risk of such and importation; but it seems to me that her culpability is somewhat less than a person who, receiving a more substantial financial reward, would have greater reason to suspect a transaction of some magnitude.
[53]When the circumstances of the case as a whole are considered, including the applicant’s plea of guilty, against the sentences which have been discussed earlier, it seems to me that in the present case, the sentence was beyond the range of sentences that could have been imposed.” (Citations omitted).
- Even though the quantity of drugs was greater, unlike the present respondent, Agboti was a bare courier in a desperate situation acting for little or no reward.
- In R v UE, which was published after the respondent had been sentenced, the applicant was 29 years old at the time of the offending. The offence concerned the importation of 629.7 grams of pure methamphetamine with a purity of 63.1 per cent. The drug had an estimated wholesale value of between $100,000 and $165,000. The applicant was sentenced on the basis that his role was more than that of a bare courier or passive recipient. The sentencing judge found that UE’s role was significant and involved a measure of planning. He played an important part in the facilitation of the actual importation itself.[45] Similar to the respondent, UE was engaged in the importation for financial gain. He was sentenced on the basis that he did not know the precise nature of the illicit substance imported but was well aware of the risk that it might indeed be methamphetamine. UE received a sentence at first instance of six years imprisonment with a parole release date after serving three years and four months. This sentence however incorporated a discount under section 21E of the Crimes Act. Absent that discount his sentence would have been nine years with a non-parole period of five years. The Court of Appeal did not consider this sentence manifestly excessive. Again similar to the respondent, UE did not have a criminal history and made a timely plea of guilty. Unlike the respondent however, UE provided extensive cooperation to authorities.[46]
- Philippides JA in determining that the “but for” sentence of nine years with a non-parole period of five years was not manifestly excessive highlighted the importance of the correct identification of the offender’s role in the importation. Her Honour considered that cases involving couriers or passive receivers were of limited use by way of comparison.[47]
- The comparative sentence schedule also referred to Calis and Thathiah.[48] Calis was convicted after a three day trial of importing a commercial quantity of methamphetamine with a pure weight of 1,294 grams. He was sentenced to 10 years imprisonment with a non‑parole period of six years. The Court of Appeal did not consider the sentence imposed to be manifestly excessive. Muir JA noted that Calis was sentenced on the basis that he was a “bare courier” who stood to make no more than $7,000 out of his activities.[49]
- Similarly, in Thathiah this was a conviction after trial for importing a commercial quantity of methamphetamine. The weight of pure methamphetamine was 1,454 grams, with an average purity of 73.6 per cent. Thathiah was sentenced to 10 years imprisonment with a non-parole period of five years. He was sentenced on the basis that he was a courier and not a principal offender.[50] The limited roles of Calis and Thathiah are to be contrasted with the respondent’s role in the importation as identified in [13] above.
- By reference to the comparatives and in light of the role played by the respondent in the importation, the sentence imposed is manifestly inadequate. Her Honour’s careful sentencing remarks do not reveal any specific error of principle. Her Honour noted the serious nature of the offence and the quantity of drugs involved. Her Honour accepted that the respondent’s involvement was at a higher level than just a courier and that he was “well up the chain of this importation”. Her Honour also noted that the activity in which the respondent participated was “deliberate and planned”.[51] Her Honour properly took into account relevant mitigating factors, including the early plea of guilty, no criminal history and the personal circumstances of the respondent. However the sentence imposed is not of such a severity as is appropriate in all the circumstances. In particular it does not sufficiently reflect the respondent’s level of culpability. The error is revealed by her Honour’s use of Harris as constituting the most comparable authority.[52] As submitted by the prosecutor the respondent’s conduct had to be considered objectively and subjectively more serious than Harris.[53] The head sentence imposed in Harris of seven years reflected her limited role in the importation of a marketable quantity of cocaine. The fact that she had a criminal record and entered a late plea of guilty did not permit her Honour to impose the same head sentence on the respondent given the extent of his role in the importation of a commercial quantity of methamphetamine.
- Having identified an error in principle, it falls to this Court to re-sentence the respondent. The sentence must take into account the matters identified above, including the seriousness of the offence which carries a maximum sentence of life imprisonment, the quantity of methamphetamine involved, the role of the respondent,[54] the commercial reward, mitigating factors,[55] and the personal circumstances of the respondent.[56] A number of those matters are identified in section 16A of the Crimes Act. By reference to those considerations, the respondent should be sentenced to a period of imprisonment of nine years with a non-parole period fixed at four and a half years.
- The orders that I propose are:
- The appeal is allowed.
- Order that the sentence below be set aside.
- In relation to Count 1, the respondent is convicted and sentenced to imprisonment for a period of nine years.
- Pursuant to section 19AB of the Crimes Act 1914, the Court fixes a non-parole period of four and a half years.
- The sentence of imprisonment is to commence on 26 October 2015.
- Pursuant to section 159A of the Penalties and Sentences Act 1992 (Qld) the Court declares that time spent in pre-sentence custody from 8 June 2014 to 25 October 2015 (505 days), be imprisonment already served under the sentence.
Footnotes
[1] Outline of Submissions on behalf of the Respondent, [1]; AB40-45.
[2] Appellant’s Outline of Submissions, [9.9].
[3] Appellant’s Outline of Submissions, [9.7].
[4] AB16, T 1-8, lines 3 to 15.
[5] Exhibit 3, AB46-52.
[6] R v Agboti [2014] QCA 280; R v Oprea [2009] QCA 184; R v Harris [2009] QCA 370; R v Thathiah [2012] QCA 195 and R v Calis [2013] QCA 165.
[7] AB16, T1-8 lines 40 to 46.
[8] AB17, T1-9 lines 33 to 34.
[9] [2009] QCA 370.
[10] (2010) 267 ALR 543; [2010] NSWCCA 75.
[11] (2010) 209 A Crim R 218; [2010] NSWCCA 169.
[12] AB19, T1-11 lines 10 to 26.
[13] AB20, T1-12 lines 4 to 9.
[14] AB20, T1-12, lines 21 to 23.
[15] AB34, lines 25-27.
[16] AB34, line 29.
[17] AB35, lines 1-20.
[18] AB34, line 29.
[19] AB35, lines 22-24.
[20] AB34, lines 34-39.
[21] AB34, lines 40 to 44.
[22] AB35, lines 33 to 41; AB25, T -17 line 46.
[23] Appellant’s Outline of Submissions, [11.3].
[24] Appellant’s Outline of Submissions, [11.5].
[25] (2001) 207 CLR 584 at [58]; [2001] HCA 64 at [58].
[26] (1936) 55 CLR 499; [1936] HCA 40.
[27] (2001) 207 CLR 584 at [64]; [2001] HCA 64 at [64] cited with approval in Hili v The Queen (2010) 242 CLR 520 at [59]; [2010] HCA 45 at [59].
[28] (2015) 90 ALJR 13 at [28]; [2015] HCA 39 at [28].
[29] (2007) 172 A Crim R 436; [2007] QCA 221.
[30] [2016] QCA 58.
[31] Appellant’s Outline of Submissions, [12.2] to [12.7] and [12.9].
[32] Outline of Submissions on behalf of the respondent, [7].
[33] Outline of Submissions on behalf of the respondent, [5].
[34] (2001) 207 CLR 584 at [64]; [2001] HCA 64 at [64].
[35] (2015) 90 ALJR 13 at [28]; [2015] HCA 39 at [28].
[36] (2007) 172 A Crim R 436 per Keane JA at [3] and Atkinson J at [18]; [2007] QCA 221 per Keane JA at [3] and Atkinson J at [18].
[37] (2007) 172 A Crim R 436 per Atkinson J at [23]; [2007] QCA 221 per Atkinson J at [23].
[38] (2007) 172 A Crim R 436 per Atkinson J at [53]; [2007] QCA 221 per Atkinson J at [53].
[39] (2007) 172 A Crim R 436 per Atkinson J at [55]; [2007] QCA 221 per Atkinson J at [55].
[40] Appellant’s outline of submissions, [12.2].
[41] AB50.
[42] [2014] QCA 280 at [4] per Peter Lyons J.
[43] R v Agboti [2014] QCA 280 at [45] per Peter Lyons J.
[44] R v Agboti [2014] QCA 280 at [51]-[53] per Peter Lyons J.
[45] R v UE [2016] QCA 58 at [5] and [6] per Philippides JA.
[46] R v UE [2016] QCA 58 at [7] per Philippides JA.
[47] R v UE [2016] QCA 58 at [29], [31] and [32] per Philippides JA.
[48] AB49.
[49] R v Calis [2013] QCA 165 at [41] per Muir JA.
[50] R v Thathiah [2012] QCA 195 at [44] per White JA.
[51] AB34, lines 33 to 39.
[52] See [22] above.
[53] See [16] above.
[54] See [11] above.
[55] See [19] above.
[56] See [20] above.