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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Grey  QCA 77
CA No 269 of 2019
SC No 1460 of 2019
SC No 1482 of 2019
Court of Appeal
Supreme Court at Brisbane – Date of Sentence: 27 September 2019 (Douglas J)
21 April 2020
8 April 2020
Morrison JA and Boddice and Williams JJ
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where over a period of just more than one year the applicant and his wife operated a sophisticated, commercially driven, drug trafficking enterprise involving both cannabis and MDMA – where the applicant pleaded guilty to eight charges – where the eight counts and sentences imposed were as follows: count 1, supplying a dangerous drug, 12 months’ imprisonment; count 2, forgery, six months’ imprisonment; count 3, uttering, six months’ imprisonment; count 4, trafficking in dangerous drugs between 25 August 2015 and 4 September 2016, nine years’ imprisonment; count 5, producing a dangerous drug in excess of 500 grams, convicted and not further punished; count 6, possessing a dangerous drug, 18 months’ imprisonment; count 7, possessing a dangerous drug in excess of 2 grams, 18 months’ imprisonment; and count 8, possessing things for use in connection with producing a dangerous drug, convicted and not further punished – where all sentences were made concurrent, and the applicant’s parole eligibility date was set at 21 August 2021 – whether the sentence was manifestly excessive
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where soon after the applicant and his wife were charged, they fled to South Australia and were not located until 2017 – where while in South Australia the applicant pleaded guilty to possession of a controlled drug for sale and was sentenced to imprisonment for one year and nine months – where eventually the applicant was extradited to Queensland and remanded in custody – whether there was a misapplication of the principle of totality – whether an amount of 16 days of pre-sentence custody was declared
Mill v The Queen (1988) 166 CLR 59;  HCA 70, applied
R v Eaton  QCA 147, cited
R v Feakes  QCA 376, cited
R v Todd  2 NSWLR 517, cited
The applicant appeared on his own behalf
D Kovac for the respondent
The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
- MORRISON JA: Over a period of just more than one year the applicant and his wife operated a sophisticated, commercially driven, drug trafficking enterprise involving both cannabis and MDMA. The drugs were largely imported from the Netherlands and then packaged and distributed across Australia using Australia Post packages. The business was conducted over three properties, including the applicant’s household home as an office, and another used to hydroponically grow cannabis.
- The applicant pleaded guilty to eight charges which arose out of that course of conduct. On 27 September 2019 he was sentenced. The eight counts and sentences imposed were as follows:
- (a)Count 1 – supplying a dangerous drug – 12 months’ imprisonment;
- (b)Count 2 – forgery – six months’ imprisonment;
- (c)Count 3 – uttering – six months’ imprisonment;
- (d)Count 4 – trafficking in dangerous drugs between 25 August 2015 and 4 September 2016 – nine years’ imprisonment;
- (e)Count 5 – producing a dangerous drug in excess of 500 grams – convicted and not further punished;
- (f)Count 6 – possessing a dangerous drug – 18 months’ imprisonment;
- (g)Count 7 – possessing a dangerous drug in excess of 2 grams – 18 months’ imprisonment; and
- (h)Count 8 – possessing things for use in connection with producing a dangerous drug – convicted and not further punished.
- All sentences were made concurrent, and the applicant’s parole eligibility date was set at 21 August 2021.
- The applicant seeks leave to challenge the sentences imposed, focussing specifically on the sentence of nine years’ imprisonment for trafficking. The challenge is brought on the basis that there are specific errors, but in addition the sentence is manifestly excessive. The specific errors are alleged to be that there was a misapplication of the principle of totality, a particular discount was not given, and an amount of 16 days of pre-sentence custody was not declared.
Circumstances of the offending
- Whilst the offences were committed between 2015 and 2016, the applicant was not sentenced until September 2019. The reason for that is soon after the applicant and his wife were charged, they fled to South Australia and were not located until 2017. While in South Australia the applicant pleaded guilty to possession of a controlled drug for sale and was sentenced to imprisonment for one year and nine months. A non-parole period of 11 months commencing on 21 August 2017 was imposed. Eventually the applicant was extradited to Queensland and remanded in custody.
The Queensland offences
- On 21 June 2016, Australian Border Force identified three separate post office boxes on the Gold Coast which had been used to import amphetamine and MDMA from the Netherlands. The boxes all belonged to the applicant, though they were registered in a false name, and the registration had been obtained using a fake driver’s licence. Enquiries with Australia Post revealed that all three post office box application forms had been completed in the name of various aliases, using a variation of the applicant’s name and giving a false address. A later search of the applicant’s home revealed three separate fake driver’s licenses, as well as the materials to make fake identification and driver’s licenses, as well as books advising how to do so.
- The trafficking involved a sophisticated business, producing and sourcing dangerous drugs for the purpose of supplying them to a large and regular customer base. The applicant’s family home had an office and packaging area set up in it. The trafficking business also used a second property as a “grow house” for the production of cannabis, and a third property to operate a hydroponic cannabis growing business. Chemicals and other items were diverted from the hydroponics business to grow cannabis.
- The applicant kept diligent and organised records of the customer base, tracking numbers for each package used to supply the customers, and the amounts supplied. Dangerous drugs were sourced in the Netherlands, using Australia Post and post office boxes to receive them.
- The drugs were advertised on Alpha Bay, using the vendor name “Weeeeeed”, through the dark net, and utilising Australia Post to distribute the drugs. The drugs were distributed to customers in every state of Australia, and the applicant’s business profile on Alpha Bay revealed that there was in excess of 600 orders generating over $400,000 in total turnover.
- At the time of police searching the applicant’s house, there were 41 Australia Post packages then present, covering each state in Australia. Police also seized exercise books containing records of the customers’ names, amounts of drugs supplied and the tracking number of each Australia Post bag used for the supply. The record keeping was detailed so that the type of drugs supplied to a particular person could be identified. The customer base was, in total, 585.
- The dangerous drugs were supplied in various quantities including cannabis at 7 grams, 14 grams, 28 grams and 57 grams, and MDMA from between 1 to 16 grams. Records seized by the police revealed the prices and quantities of the MDMA sold, listing: 25g $307.12, 50g $570.35, and 100g $1,098.05. Similar figures applied for a drug labelled “Coke”, listing 20g for $1,892.92, and 25g at $1,963.59. A third list was labelled “Ice Age”, and contained prices varying from $100 for 1 gram up to $5,905.37 for 100 grams.
- Police executed tactical intercepts of customers and Australia Post parcels. Searches at some customers’ addresses revealed receipt of drugs from the Alpha Bay seller with the user name “Weeeeeed”, and in some cases packages which could be matched to the tracking number in documents from the applicant’s house.
- Tactical intercepts of Australia Post packages revealed the applicant’s large scale purchase of express post parcels and lodgement of those parcels for distribution. On 21 seized parcels the sender was listed with a false name and an address which was, in fact, a registered brothel. Each of the packages contained a heat sealed foil bag, which in turn contained another heat sealed foil bag (acting as a moisture barrier), which then contained a clip seal bag with drugs. Seventeen bags contained cannabis and four packages contained MDMA. Each of the bags was forensically weighed and analysed, revealing a total of 209 grams of cannabis and 4.725 grams of pure MDMA.
- A subsequent search resulted in the seizure of an additional 20 express post packages, using the same false name and address. These packages also contained heat sealed foil bags and an eventual clip seal bag with drugs. Eleven of the packages contained cannabis and the remaining nine contained MDMA. Analysis revealed a total of 296 grams of cannabis, and a total of 9.993 grams of pure MDMA.
- Police also intercepted various packages which contained dangerous drugs sourced from the Netherlands, and were intended for delivery to the applicant’s post office boxes. Each of those packages contained quantities of MDMA but analysis of them was not possible. A subsequent seizure of two packages revealed in one case a total of 24.779 grams of MDMA (17.221 grams pure) and in the second 54.551 grams of MDMA (37.819 grams pure).
- Police seized further packages on various dates, each of which contained cannabis or MDMA in varying weights.
- Police executed search warrants at the applicant’s residence. In the home office police seized a variety of items used to conduct the business. More significantly, police seized: 88.320 grams of a substance which produced 56.828 grams of pure MDMA; 4.35 kilograms of cannabis in clip seal bags; 20.940 grams of a substance which produced 9.177 grams of pure cocaine; and cutting agents by the name of Lidocaine and Levamisole. Police also found various utensils for growing cannabis and postal boxes containing express post satchels.
- A forensic examination of the drugs located in the search of the office revealed a total of 56.828 grams of pure MDMA, and 9.177 grams of pure cocaine.
- A subsequent search of the applicant’s second property revealed that it contained a warehouse store, with shelving containing products and boxes for hydroponic supplies. Three plastic sealed bags containing small cannabis seeds were located, as well as a document listing chemicals used to produce cocaine. The chemicals and instructions were indicative of cocaine extraction procedures. A stainless steel type Turbo still was located, with brown dried liquid at the bottom. Analysis revealed cannabis seeds in the clip sealed bags and Tetrahydrocannabinol on the lid of the still.
- A subsequent search at the third property revealed that it had been converted into a “grow house”, with rooms full of cannabis plants, chemicals and equipment such as large density lights, extractor fans, air conditioners, hosing, ducting, large water receptacles and growth chemicals, and a large machine used to remove leaf material from cannabis plants. Police also located more express post bags, listed for five different customers in Australia. Police located, seized and forensically tested 61 pots containing cannabis plants and other containers. The pots contained a total of 93 cannabis plants, which (without roots) weighed in excess of 151 kilograms. Separate bags contained green leafy material (cannabis) with a weight of about 3.8 kilograms.
- The total value of the cannabis plants and loose cannabis was approximately $211,225, and the value of the equipment was about $20,000.
- The applicant declined to participate in an interview and was charged.
- Forensic analysis of computers, phones and documents located during the searches revealed that the applicant was using a dark web marketplace by the name of Alpha Bay, and the user name “Weeeeeed”. Alpha Bay operated as a virtual marketplace for the sale of illegal goods, utilising cryptocurrencies such as Bitcoin. The applicant’s profile on Alpha Bay revealed that he had made 2,084 sales of hydro cannabis and MDMA over the period between 26 August 2015 and 17 August 2016. The “Weeeeeed” profile was ranked with a vendor level of 7, which necessarily meant that it had fulfilled in excess of 600 orders and generated over $400,000 in turnover. Analysis also revealed advertisements for the sale of cannabis, and feedback from customers. Analysis also revealed the applicant trading using Bitcoin, in an amount in excess of $300,000. The electronic devices seized by police revealed that the trafficking business utilised encryption and decryption software, an anonymous email browser and the use of software which made the Bitcoin transactions more difficult to trace back to an individual person. Searches conducted by the applicant revealed extensive enquiries as to how to make drugs (including cocaine), what to do in a police raid, and generally how to avoid detection.
- The applicant and his wife had Porsche and BMW cars, were operating their trafficking and production business from their family home and two other properties, and lived a lavish lifestyle from the profit they made from the business. Property which was restrained as a result of confiscation proceedings, and subsequently forfeited, totalled $308,887.23.
Approach of the learned sentencing judge
- The sentencing remarks commence by recording the plea of guilty and the recognition that the trafficking count was the most serious of all counts. The learned sentencing judge summarised the essential feature of the trafficking operation, saying that it was rightly described as a sophisticated business, and that it was extensive, commercial and successful. Having noted the extensive number of orders, his Honour referred to the fact that it was not known what the overall turnover from the transactions was, but it could be concluded that it was “very significant”.
- The learned sentencing judge referred to the fact that the applicant had, by the time of his trafficking, become a “very heavily addicted cocaine user”, but also the applicant’s resolve to get away from such addictive behaviour.
- His Honour characterised the nature of the operation in these terms:
“So, overall, it is not an attractive picture, and one of the worst examples of higher level trafficking which I’ve come across in my career as a judge. Much of what one sees here tends to be at a more low level street level of trafficking. But this is, in many respects, an order of magnitude beyond what I normally see. So it’s very serious offending.”
- The learned sentencing judge referred to this Court’s decision in R v Eaton as a comparable case providing some guidance. In that case the head sentence of nine years’ imprisonment was opposed, with a four year parole eligibility date. His Honour said: “For your circumstances, it seems to me to be an appropriate position to start from, as it were”. His Honour then referred to mitigating factors to the benefit of the applicant, including his contrition, good use of the time spent in custody, his resolution to stay away from drug related conduct, and his bitter regret as to the effect it had had on the applicant’s family. Further his Honour referred to the applicant’s proposal to commence university study and the acceptance of the applicant’s responsibility as the principal of the trafficking business.
- The learned sentencing judge then referred to the fact that the applicant had spent time in custody in South Australia (identifying the details of the conviction and the sentence imposed), noting that counsel for the applicant had submitted that his Honour should take that time served into account.
- In that respect his Honour then explained the approach he was taking:
“Having regard to statements made, for example, in decisions of Feakes referred to in Eaton – Feakes  QCA 376 – it would have been open to me to impose a sentence in the range of 10 to 12 years imprisonment, you being a mature offender who had pleaded guilty to trafficking in schedule 1 drugs on a scale like this one here. The schedule 1 drug, relevantly here, is the MDMA. As in Eaton, however, and bearing in mind the period you have already spent in custody and the steps you have taken while in custody to attempt to reform yourself, it would seem to me that it would have been crushing to impose a sentence of more than 10 years with the consequent 80 per cent non-parole period in circumstances where you have already spent time in custody in South Australia recently for similar offending and where you have taken what appear to me to be active steps to reform yourself. For that reason, it does seem to me to be appropriate to fix a nine-year sentence for the trafficking offence.”
- The learned sentencing judge then turned to the question of fixing the parole eligibility date. His Honour noted that the four year period in Eaton was appropriate as a starting point. The learned sentencing judge then referred to the submission made by counsel for the applicant, namely that the parole eligibility date should be set four years from the time when the applicant first went into custody in South Australia, namely 21 August 2017. His Honour then referred to the High Court decision in Mill v The Queen setting out the totality principle and its applicability to interstate offending. His Honour then said:
“It does seem to me, however, bearing that principle in mind, that there is some logic to attaching a parole eligibility date to your first entry into custody in South Australia. It also has to be borne in mind that you fled this jurisdiction to avoid this hearing and that is something I bear in mind also but, overall, it seems to me that it is appropriate to fix a parole eligibility date, having regard to the head sentence I have imposed, four years from when you first went into custody, which will be the 21st of August 2021, slightly less than two years from now.”
- The applicant’s central contention was that there was an error in the application of the totality principle as set out in Mill v The Queen. In essence, the applicant contends that the head sentence here should have been moderated by the length of time served in South Australia, so that the head sentence here dated from the commencement of the imprisonment in South Australia, 21 August 2017.
- The totality principle referred to in Mill v The Queen operates to require a sentencing court, when a number of offences are being dealt with and specific punishments are being totalled up, to review the total effect to ensure that the aggregate is just and appropriate for the total criminality. Mill v The Queen endorsed the reasoning in R v Todd and in particular a passage from the reasons of Street CJ:
“it would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences. …
… where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be quite an undue degree of leniency being extended to the prisoner.”
- In Mill v The Queen that reasoning was said to reflect a “just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time”. The High Court went on to make it clear that the principle applied to the fixing of a head sentence as well as a non-parole period. The court said:
“In the absence of statutory provisions enabling the new sentence to be backdated to a time when the offender was in custody serving the earlier sentence in the other State, it is not correct for the second sentencing court to determine the head sentence by reference to the normal tariff applicable to the offence for which he is then being sentenced, leaving the fixing of a non-parole period alone to reflect the principles laid down in Todd . The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence.”
- Applying those principles, there are considerable difficulties confronting the applicant’s contention.
- First, the applicant’s counsel at the sentencing hearing conceded that the head sentence could be between eight and nine years, that reflecting the time spent in custody in South Australia. That was only slightly different from the nine years urged by the Crown, which itself took into account the time already spent in custody in South Australia. The submissions by counsel for the applicant on the sentencing expressly averted to the totality principle, and apart from the head sentence focused on setting the parole eligibility date at four years from 21 August 2017, being the date the applicant went into custody in South Australia.
- Secondly, as is evident from the passage set out at paragraph  above, the learned sentencing judge expressly took into account the time spent in custody in South Australia when setting the head sentence. His Honour observed that it was open to him to have imposed a sentence in the range of 10 to 12 years, referring to R v Feakes, but to have done so in the face of the time spent in custody in South Australia would have resulted in a crushing sentence of more than 10 years with its consequent 80 per cent non-parole period. It was a consideration of the totality principle which caused his Honour to reduce what the sentence would have been otherwise, and impose the nine year head sentence.
- The conclusion by the learned trial judge that Feakes justified the imposition of a sentence in the range of 10 to 12 years’ imprisonment was, in my respectful view, correct. The applicant was a mature age offender who pleaded guilty to trafficking in a schedule 1 drug for a period in excess of one year. The sophistication and commercial nature of the trafficking have been described above. Whilst it might not bear the label of wholesale trafficker in the classic sense, nonetheless it was an extensive operation covering the whole of Australia, sourcing drugs from international suppliers, organised through and protected by the dark net, and protected by software which ensured encryption and secrecy, and the use of Bitcoin as a currency which, itself, had sophisticated software to protect detection. The applicant was the principal of the operation and there is no suggestion that his conduct would have abated but for the detection of his trafficking by police. The operation was not merely distribution, but also encompassed the production of hydroponic cannabis using sophisticated information and technology systems.
- Apart from Feakes there are quite a number of decisions of this Court which would amply support the imposition of a sentence between 10 and 12 years in this instance, notwithstanding the obvious mitigating features consequent upon the applicant’s attempt to rehabilitate himself. Sentences of that order have been recognised in R v Carlisle, R v Tran; Ex parte Attorney-General (Qld), R v Castner, and R v Cumner. Those decisions provide yardsticks by which the sentence in the applicant’s case can be compared. On the basis of those decisions it cannot be said that the sentence imposed here was manifestly excessive.
- Thirdly, a separate consideration, and one mandated by Mill v The Queen, was the consideration of a parole eligibility date. Once again, his Honour averted to the totality principle expressly when acceding to the submission, made on the applicant’s behalf, that the parole eligibility date be set at four years from when the applicant first went into custody in South Australia. So much is evident from the passage set out in paragraph  above.
- There was no error on the part of the learned sentencing judge and the sentence was not manifestly excessive. These contentions should be rejected.
- The applicant’s second contention was that there was an error of law because he was not given a discount in South Australia. There are a number of difficulties confronting acceptance of that contention.
- First, the only reference made to it in the sentencing proceedings was in one sentence of a letter addressed by the applicant to the learned sentencing judge. However, nothing was said by way of submission as to whether it should impact upon the sentence to be imposed. Consequently, it is now difficult for the applicant to maintain that there was error in failing to do so.
- Thirdly, the letter has not been made available to this Court. In the absence of knowing the detail of the letter it is not possible for this Court to make any meaningful assessment of its significance.
- This contention should be rejected.
- The remaining contention is that a period of 16 days, spent in custody between 6 September 2016 and 21 September 2016, was not taken into account as time served.
- The pre-sentence custody certificate attached to the affidavit of Mr Walls reveals that 16 days were spent in pre-sentence custody on the dates referred to. It is evident that the learned sentencing judge was not informed of that period by any party, and therefore it was not taken into account.
- In the circumstances, the applicant is entitled to have the extra 16 days taken into account as time already served under the sentence imposed. That can be done by varying the pre-sentence custody declaration.
Conclusion and orders
- For the reasons expressed above I would make the following orders:
- Grant the application for leave to appeal.
- Allow the appeal.
- Set aside the pre-sentence custody declaration made on 27 September 2019 and in lieu thereof declare that 446 days spent in pre-sentence custody between 6 September 2016 and 21 September 2016, and between 24 July 2018 and 26 September 2019, be deemed time already served under the sentence.
- Otherwise affirm the sentences imposed.
- BODDICE J: I agree with Morrison JA.
- WILLIAMS J: I have read the reasons of Morrison JA and agree with those reasons and the orders his Honour proposes.
 3, 4 Methylenedioxymethamphetamine.
 In addition there were two summary offences, one for breach of a bail condition and the other a failing to appear in accordance with a bail undertaking.
 Identified by the applicant in his outline as relating to trafficking 100 grams of magic mushrooms.
 This conduct involved in producing fake driver’s licenses and identification in order to register the post office boxes were the subject of Counts 2 and 3, forging and uttering.
 The subject of Count 4, trafficking.
 Count 5, production of a dangerous drug.
 Between 49 grams and 100 grams.
 Including Australia Post packages, heat sealers, gloves, clip seal bags, digital scales, hydroponic equipment, growth chemicals, storage devices, fraudulent IDs, photographs of drugs for sale, and recipes and chemicals for drug production.
 The subject of Count 7, possession of a dangerous drug exceeding 2 grams.
 A Cannabinoid.
 This was the subject of Count 8, possessing things for use in connection with the production of a dangerous drug.
 Appeal Book (AB) 62 lines 2-6.
  QCA 147.
 AB 62 lines 24-25.
 AB 62 lines 33-45.
 (1988) 166 CLR 59 at 63.
 AB 63 lines 25-31.
 (1988) 166 CLR 59.
  2 NSWLR 517.
 Mill v The Queen at 64; Todd at 519-520.
 Mill v The Queen at 66.
 Mill v The Queen at 66.
 AB 39 lines 8-10.
 AB 34-35.
 AB 39-41.
  QCA 376.
 In other words, supplying to persons who had their own clients.
  QCA 258 at  and .
  QCA 22 at -.
  QCA 265 at .
  QCA 54 at -.
 Filed on 1 April 2020.
- Published Case Name:
R v Grey
- Shortened Case Name:
R v Grey
 QCA 77
Morrison JA, Boddice J, Williams J
21 Apr 2020