R v Cant[2016] QCA 52

SUPREME COURT OF QUEENSLAND

[1] FRASER JA:  I agree with the reasons for judgment of Jackson J and the order proposed by his Honour.

[2] PHILIP McMURDO JA:  I agree with Jackson J.

[3] JACKSON J:  On 20 May 2015, the applicant filed an application for leave to appeal against sentence on the ground that the sentence was decided on a clear factual error of substance and was excessive in the circumstances.

[4] On 22 April 2015, sentence was passed and orders were made by the learned sentencing judge for 12 offences.  The most serious was a single charge of trafficking in the dangerous drug methylamphetamine between 23 August 2011 and 8 August 2012.

[5] On that charge, it was ordered that the applicant be imprisoned for a period of eight years.  The learned sentencing Judge did not fix a parole eligibility date.

[6] Next, there were nine charges of supply of the dangerous drug methylamphetamine, on dates ranging between 26 October 2011 and 5 July 2012.

[7] Lastly, there were also two charges of producing the dangerous drug cannabis: first, between 9 April 2012 and 8 June 2012; and, second, between 26 June 2013 and 8 August 2013.

[8] On each of the charges other than trafficking, it was ordered that the offender be imprisoned for concurrent periods of 12 months.

[9] On 22 April 2015, the sentencing hearing proceeded as an uncontested hearing on a detailed schedule of facts contained in eight pages (“the schedule”).  The applicant attended the hearing by video-link from prison.  The schedule was tendered and received as an exhibit.

[10] The hearing started just before 10.00 am and continued until just before 10.53 am.  At that point her Honour said to the applicant as follows:

“All right.  Now, Mr Cant, when you were arraigned you – it was indicated to you that you could also speak, if you wished, on your sentencing hearing.  Mr Reid has made extensive submissions.  I have his written submissions.  But I should also give you the opportunity to speak to the court if you wish to place anything before the court.  Is there anything that you wish to say?”

[11] The applicant replied:

“Yes, thank you, your Honour.  I’d just like to point out that I don’t agree with all the statement of facts.  I – I think they have been made worse than what they really are – what really happened.”

[12] Following that exchange, her Honour invited the applicant’s counsel to take instructions and he did so.  The court adjourned at 10.53 am.  The proceeding resumed at 11.07 am.

[13] At that point, the applicant’s counsel said:

“Thank you, for the opportunity to speak to Mr Cant.  Mr Cant understands that your Honour will sentence him on the basis of the schedule that’s been tendered.  He wishes to make no other observations and is ready to be sentenced.”

[14] The court then proceeded to pronounce judgment and pass sentence on the applicant’s pleas of guilty on that basis.

[15] As already stated, this application was filed on 20 May 2015.  However, the applicant also made another application to reopen the sentence under s 188(1)(c) of the Penalties and Sentences Act 1992 (Qld).  That application was heard on 22 September 2015 with further submissions made on 29 September and 2 October 2015.  The application was decided on 3 November 2015 and written reasons for the decision were published.[1]

[16] On the application to reopen the sentence, the applicant raised many of the matters he seeks to raise by the present application.  They included the circumstances concerning the agreed schedule of facts at the sentencing hearing as set out above.[2]

[17] The first basis argued by the applicant on the application to reopen his sentence was that he was sentenced on the basis of factual errors in the schedule of facts.[3]  The learned sentencing Judge dealt with that matter in some depth.  Her Honour noted the present application for leave to appeal had been lodged and concluded:

“In this application, however, he is seeking to argue the accuracy of some of the factual details of his offending.  In this regard, I endorse the views of Mackenzie J in R v Christensen that the section is to be used in the exceptional, limited circumstances to which s 188 refers and that it cannot be used to review a sentence which has been imposed.  In my view, that is what the applicant is in fact seeking to do here and such an approach must be refused.”[4] (footnotes omitted)

[18] However, her Honour proceeded to make a finding as to the substance of the matter as follows:

“Furthermore, it would seem to me that, in any event, even if there were errors in the schedule of facts as alleged, there is nothing on the face of it to suggest that any errors which could be identified would be ‘of substance’…

Accordingly, I am not satisfied the applicant has demonstrated that there is any error in the schedule of facts which would require this Court to reopen the sentence imposed.”[5]

[19] By the present application, the applicant seeks to reventilate the question whether there were relevant errors of facts in the agreed schedule of facts upon the basis of which the sentencing hearing proceeded and concluded.

[20] The facts for which the applicant wishes to contend are set out in his outline of argument filed on 4 January 2016.

[21] A threshold question is whether on 22 April 2015 the applicant’s counsel was wrong in saying that the applicant understood that he would be sentenced on the basis of the schedule of facts.  The applicant’s contention is that he was tricked into being sentenced on incorrect facts and was advised by his counsel that he could fix the errors later on.  He contends that his counsel misled him.  He also makes other complaints as to the submissions made by counsel which he says should not have been made.

[22] The applicant’s contentions in this respect are partly supported by an affidavit attached to his outline of argument where he swore that after her Honour adjourned the court for the applicant’s lawyers to speak to him he was told “just to say nothing and [he] could fix all the errors later on.”  He accuses his counsel of deliberately tricking him for some “sinister reason”.

[23] These accusations are unsupported by any other evidence.  As will appear, they are inconsistent with contemporaneous or near contemporaneous facts, and are improbable.

[24] First, the applicant’s signed written instructions for trial dated 14 March 2014 acknowledged that he had been taken through the summary of allegations in the attached schedule which was an earlier and not significantly different version of the schedule of facts.

[25] Second, the applicant’s signed written instructions for sentence dated 14 April 2015 again acknowledged that he had been taken through the schedule of facts and recorded that he understood that by pleading guilty he would be accepting the allegations against him.

[26] Third, the applicant’s counsel’s statement in open court and in the applicant’s presence by videolink that the applicant understood that he would be sentenced on the basis of the schedule of facts that had been tendered was inconsistent with the proposition that errors in the schedule of facts could be fixed later on.

[27] Fourth, the applicant had appeared in court on sentence for other offences several times before this day.  There was no basis he gave for the counterintuitive proposition that he believed that errors could or would be fixed after sentence.

[28] Fifth, the respondent read an affidavit by the solicitor who represented the applicant at the sentencing hearing on 22 April 2015.  He was cross-examined by the applicant.

[29] He said that the applicant’s contentions that he had not been made aware of the facts of the Crown case on sentence and did not see a copy of the schedule of facts are untrue.  He said that the applicant was taken through the evidence and also the schedule of facts (presumably the draft of the final schedule) on a number of occasions.

[30] On 10 April 2015 he wrote a letter to the applicant which made the state of the Crown case plain and dealt with issues raised by the applicant about the conduct of his case.

[31] On 14 April 2015, he obtained the applicant’s signed sentence instructions, which acknowledged that he had been taken through a schedule of facts and that he had been provided with his own copy of the brief of evidence.

[32] He rejected the assertions by the applicant that the applicant’s counsel acted dishonestly or tricked him into being sentenced on false facts.

[33] He further said that it is not true that the applicant was not allowed a contested sentence or told that he must plead guilty to all the charges.  He rejected that the applicant was told immediately prior to the sentence being imposed that any errors could be fixed later on.  He says there was no such discussion and if he were ever asked such a question that would not be his advice.

[34] In my view, there was no reason to reject his evidence on the points made above.

[35] The respondent also read an affidavit by the counsel who represented the applicant on 22 April 2015.  He too was cross-examined by the applicant.  His evidence did not support the applicant’s contentions either.

[36] In my view, the ground of the application based on the applicant’s contention that he was not properly represented on sentence and that as a result he should not be considered to be bound by the conduct of his case by the counsel and solicitor who acted on his behalf at sentence should be rejected.  Given the state of the evidence, the applicant did not discharge the onus of proving on the balance of probabilities, as a matter of fact, that the allegations he makes against his counsel or solicitor are true.

[37] Once that point is reached, the only remaining question is whether on the facts, as acted upon by the learned sentencing judge, the sentence was manifestly excessive.  The applicant made no submissions of substance in support of this ground.  It requires only brief consideration.

[38] Summarised, the applicant was found guilty of trafficking in methylamphetamine for a period of just under 12 months.  During that time, the telephone intercepts and text messages obtained by police showed his involvement in 37 identifiable drug sales.  For 21 of those sales, amounts of money could be discerned.  The total amount was $87,800.

[39] The charges of supply related to nine occasions on which the applicant supplied or arranged to supply quantities of methylamphetamine worth between $100 and $2,000 to his ex-partner.  They were not part of the commercial trade for the trafficking offence.

[40] There were also two occasions on which the applicant was involved in the setting up of cannabis crops and hydroponic equipment, although no substantial crop or profit was produced.  Both ventures were on a minor scale at the times they were detected.  The first produced less than 300 grams of material.  The second produced only a few seedlings and 15 plants.

[41] The applicant was born on 4 September 1959, was 51 and 52 years old at the time of offending and 55 at the time of sentence.  He had a significant criminal history including a conviction and sentence in 2001 of 14 years imprisonment for being knowingly concerned with importing a commercial quantity of ecstasy and another conviction and sentence on 13 January 2004 of 12 years six months imprisonment for being knowingly concerned with importing cannabis resin.

[42] On 18 May 2011, he was released on parole.  The present period of trafficking began within three months of his release.

[43] In her Honour’s sentencing remarks, the learned sentencing Judge referred to the facts as set out in the schedule, the applicant’s serious criminal history, the short time between his release on parole and the present offending, that the transactions referred to in the schedule of facts were above street level, that the drugs were supplied to and by the applicant on credit, that the methylamphetamine involved was of low quality and that the applicant made little money from the relevant transactions.

[44] Her Honour took into account considerations of totality and the applicant’s cooperation with the administration of justice by his plea of guilty shortly after commencement of what was due to be a lengthy trial.

[45] A number of potentially comparable cases were referred to in submissions before the learned sentencing judge and in this court.[6]  It is unnecessary to refer to details of the cases.  None of them was closely analogous, although a number involved convictions for a significant trafficking offence where the offender had previously been convicted of an earlier serious drug offence or offences such as trafficking or supply, as in the present case.

[46] The sentence in the present case was complicated by the circumstance that at sentence the applicant’s parole for his earlier convictions was revoked.  His full time release date upon those sentences will be 18 May 2019.  He will be eligible for parole on those sentences on 19 May 2016.  The learned sentencing Judge ordered that the applicant’s sentence for the present offending be served concurrently with the earlier sentences, so as not to be a crushing sentence.

[47] Her Honour accepted that the offending in some of the cases relied upon for comparison was more serious than the offending of the applicant.  The range of cases referred to by the respondent showed sentences for trafficking between eight and 10 years.  The trafficking in some was at a level higher than street level, as in the applicant’s case.  However, her Honour found comparison with the applicant’s offending difficult.

[48] Her Honour took into account the sentences imposed on the applicant’s co-offenders.  Although they were significantly lesser sentences, neither possessed the same negative factors as were present in the applicant’s case.  The applicant was involved in 37 identifiable sales as opposed to 10 sales for Hogan and six supplies for Munt.  The applicant’s circumstances differed because of his principal role, his age, his antecedents and that the offending was committed whilst on parole for a lengthy term of imprisonment for other serious commercial drug offences.

[49] Her Honour characterised the applicant’s offending thus:

“It is clear that, here, you trafficked in the drug methylamphetamine, and you commenced that trafficking within three months of being released on parole.  That is a serious factor which needs to be taken into account.  It is also significant that you were endeavouring to traffic so that you could raise funds to fund another criminal enterprise.  I accept, however, that that did not come to anything.  However, you were involved in trafficking over four different states.  It is also clear that you were, essentially, the facilitator.  You organised the supply of methylamphetamine from your contacts, and you would then supply it onto another person who would then sell it at street level.  It is clear that your transactions were above street level and some significant quantities were involved.  In particular, there [was] evidence of an eight-ball being supplied and then that eight-ball would then be sold on in smaller amounts to customers.”

[50] Having referred to submissions made and the cases referred to, as well as the other factors I have previously mentioned, her Honour acknowledged that she had taken into account the applicant’s co-operation with the administration of justice by his plea of guilty on day three of a four to six week trial, noting that was after Mr Munt’s evidence was apparent from a voir dire that had been conducted.

[51] Her Honour concluded:

“In all of the circumstances, taking into account the factors that I have outlined, I will sentence you to a period of imprisonment of eight years.  I consider that that takes into account the totality issues, the sentences imposed [on] your co-offenders and the circumstances personal to you.”

[52] In my view, the sentence imposed was not shown to be manifestly excessive.

[53] For those reasons, the application should be dismissed.