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- Unreported Judgment
R v TAS QCA 49
SUPREME COURT OF QUEENSLAND
R v TAS  QCA 49
CA No 323 of 2019
SC No 213 of 2019
Court of Appeal
Supreme Court at Brisbane – Date of Sentence: 28 November 2019 (Dalton J)
19 March 2021
13 August 2020
Morrison and McMurdo JJA and North J
CRIMINAL LAW – SENTENCE – INTERPRETATION OF SENTENCING PROVISIONS – where the applicant pleaded guilty to trafficking dangerous drugs – where the applicant pleaded guilty to the circumstance of aggravation that he was a participant in a criminal organisation within the meaning of s 161P of the Penalties and Sentences Act 1992 (Qld) – where s 161R of the Penalties and Sentence Act 1992 (Qld) was engaged – where the applicant cooperated with authorities and gave an undertaking to cooperate in future, engaging s 161S of the Penalties and Sentences Act 1992 (Qld) – where the sentencing judge sentenced the applicant in open court and gave an indicative sentence in closed court pursuant to the procedure in s 13A of the Penalties and Sentences Act 1992 (Qld) – whether the indicative sentence must include the “mandatory component” required by s 161R – whether s 161S wholly displaces the operation of s 161R – whether the ultimate sentence was manifestly excessive
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant couriered drugs and cash for a criminal organisation – where the applicant was not a drug user – where the applicant trafficked wholly for financial reasons – where the applicant trafficked for a period of three years and eight months – where the applicant was a trusted member of the criminal organisation – where the applicant cooperated with authorities and gave an undertaking to cooperate in the future – where the sentencing judge halved what would have been the sentence but for applicant’s cooperation – whether the reduction was so inadequate that it must be inferred that the judge made some error
CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – RESPONSE TO CHARGES – CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES – where the applicant cooperated with authorities and gave an undertaking to cooperate in the future – where the applicant disclosed previous offending which did not form part of the indictment – where the applicant secured an indemnity from prosecution for the previous offending – where the sentencing judge considered the indemnity from prosecution – whether the sentencing judge erred in holding that a partial indemnity against prosecution was a significant benefit to the applicant, so as to lessen the credit which should be given to his undertaking to cooperate
CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – GENERAL PRINCIPLES – where the applicant was a member of a criminal organisation – where another member of the organisation was sentenced after the applicant – where that other offender’s criminality was greater than the applicant’s – where the applicant received a longer term of imprisonment than the other offender – where a serious violent offence declaration was made in relation to the applicant’s offending – whether there was an unacceptable disparity between the two sentences
Penalties and Sentences Act 1992 (Qld), s 13A, s 13B, s 161P, s 161R, s 161S
Lowe v The Queen (1984) 154 CLR 606;  HCA 46, consideredPostiglione v The Queen (1997) 189 CLR 295;  HCA 26, considered
R v PBH  QCA 38, followed
S Keim SC, with B J Power, for the applicant
P J McCarthy QC for the respondent
Guest Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent
- MORRISON JA: I have read the reasons of McMurdo JA and agree with those reasons and the orders his Honour proposes.
- McMURDO JA: This is an application for leave to appeal against a sentence, imposed in the Trial Division, for an offence of trafficking in methylamphetamine, committed with a serious organised crime circumstance of aggravation. The sentence was a term of 10 years’ imprisonment, with the necessary declaration that this was a serious violent offence. There were also other offences, involving the possession of methylamphetamine and other things, which were particulars of his trafficking and for which he received no further punishment.
- The sentence was imposed under s 13A of the Penalties and Sentences Act 1992 (Qld). The sentence which would have been imposed, but for the reduction under s 13A (commonly called the “indicative sentence”), was a term of 18 years, which would have included a “mandatory component” of seven years’ imprisonment pursuant to s 161R(2)(b) of the Act. That sentence would have required the applicant to serve at least 15.8 years. The judge reduced that sentence because, in the terms of s 161S of the Act, the applicant had undertaken to cooperate in proceedings about a major criminal offence, in which his cooperation would be of significant use.
- The applicant seeks leave to appeal to advance four grounds, namely:
- the sentence was manifestly excessive;
- the judge erred in law, in holding that s 161R was not displaced, and that the indicative sentence had to include the mandatory component of seven years, although s 161S was engaged;
- the judge erred in holding that the grant to the applicant by the Attorney-General of a partial indemnity against prosecution, in recognition of his cooperation, was a significant benefit to the applicant, so as to lessen the credit which should be given for his undertaking under s 13A;
- the application of the parity principle requires the reduction of this sentence, having regard to the subsequent sentencing of a co-offender. That person, whom I will call C, had his indicative sentence of 21 years, with parole eligibility after 18.2 years, reduced under s 13A to a term of nine years with an eligibility for parole after 4.5 years.
- For the reasons that follow, leave to appeal should be granted, and the appeal allowed on the basis of the fourth ground. The applicant’s sentence should be reduced to a term of nine years with parole eligibility after serving six years.
The second ground of appeal: the effect of s 161S
- It is convenient to discuss this ground first, because of its relevance to the ground that the sentence is manifestly excessive.
- For this ground, this judgment should be read with the Court’s recent judgment in R v PBH, where the same argument was advanced. The argument concerns the inter-relationship between the expressly mandatory provisions of s 161R and a court’s discretionary power to reduce a sentence for the offender’s future or past cooperation (or both) under the procedure prescribed by s 13A or s 13B. That subject is governed by s 161S.
- In PBH, the Court rejected the argument that whenever s 161S is engaged, the operation of s 161R is wholly displaced. Rather, s 161R operates, but subject to the exercise of the Court’s discretionary powers to mitigate the sentence, which would include the s 161R component, for past and/or future cooperation as is appropriate for that case. Past cooperation can require a court to reduce the indicative sentence which is otherwise required by s 161R. Future cooperation can require a court to reduce the ultimate sentence, notwithstanding that the indicative sentence results from the application of s 161R. In particular, the power to reduce a sentence, in circumstances which would engage s 13A or s 13B, may be exercised to reduce the mandatory component itself.
- Consequently, the sentencing judge in this case was correct to reject the argument that the engagement of s 161S will, in each and every case, wholly displace the operation of s 161R. Her Honour reasoned, correctly, as follows:
“In my view, s 161S(4) of the Penalties and Sentences Act must mean that the sentencing Court can change the requirement imposed by s 161R that any person convicted of “a prescribed offence committed with a serious organised crime circumstance of aggravation” must receive an additional seven years as part of their head sentence and must serve that seven years wholly within a Corrective Services facility.
I do think it is important to note that the Court is given a discretion. The Court has a discretion to moderate that part of the sentence; it might reduce it to nil, or it might reduce it to a period of years less than seven; the Court might or might not decide that some or all of the reduced period should be spent within a Corrective Services facility. It is not, as submissions in this case sometimes put it, as though s161S(4) had the effect that the mandatory period otherwise imposed by s161R is simply cancelled.”
- Her Honour said that but for the applicant’s past cooperation and his “section 13 cooperation”, the sentence would have been a term of 13 years, and that she had reduced the base component of the indicative sentence to 11 years to allow for his “AB type cooperation”. The judge did not misapply s 161R.
- The second ground of appeal fails.
Grounds one and three of the appeal
- Ground one is stated to be that the ultimate sentence was manifestly excessive. However the applicant’s argument is more specific, in that it focusses upon the allowances made for the applicant’s past and future cooperation, which are said to have been manifestly inadequate.
- The applicant pleaded guilty to these charges, including the circumstance of aggravation which engaged s 161R. The trafficking offence was committed over a period from 31 December 2013 until 2 August 2017, during which the applicant was aged 33 to 36 years. He had no prior criminal history. He had been on bail, awaiting sentence, for a period of two years without incident.
- The applicant’s trafficking was as a courier for a large organised drug syndicate, which was based in Sydney and which sent methylamphetamine into and around Queensland. The head of the syndicate in Queensland was a man whom I will call N. The applicant would travel to Sydney to deliver money and pick up drugs. Typically, he was carrying amounts of the order of $200,000 to $400,000, provided to him by N. He estimated that he did this on at least 20 occasions and delivered a total of approximately $5,000,000. On three of those occasions, he hired a car and drove back to Queensland, bringing drugs with him. The sentencing judge inferred that the quantities of the drugs which he brought back from Sydney would have been commensurate with the amount of cash which he had taken there. He also collected drugs, on 12 occasions, which had been brought to Brisbane from Sydney by other members of the syndicate.
- The applicant was a courier for two supply lines within the syndicate. One was to a man whom I will call W, who was in Brisbane. The other was to C (the offender who is the subject of the fourth ground of appeal) who was in Mackay. The applicant began to deliver drugs for N to C in 2008/9 and did so until late 2011. There was an interval of time when his trafficking ceased, before it resumed at the end of 2013. This earlier period of trafficking was not the subject of a charge against the applicant. The applicant secured an indemnity from prosecution for that conduct, and that indemnity is the subject of ground three of this appeal.
- In 2014, the applicant recommenced couriering drugs and cash for the syndicate. N provided him with a Blackberry phone and instructed him to use encrypted email and the Wickr application in his work. He resumed his deliveries to C. The applicant estimated that he delivered approximately 25 to 30 kilograms of methylamphetamine to C in the relevant period. On each occasion, he obtained the drugs from N or another person in Brisbane and took them home so that he could securely pack them and hide them in various parts of the car to be used for the trip to Mackay. Once there, he handed the drugs to C, who handed him a sum of cash to be taken to N. On each occasion, he returned to Brisbane with cash, on average, of the order of $200,000. On one occasion, the applicant carried $450,000 cash from C to N. The applicant estimated that over this period of trafficking, he carried $5 million to $10 million in cash. On delivery of the cash, N would pay him, on average, $2,000 to $4,000 for each delivery. C also purchased cannabis from N. The applicant made three deliveries of cannabis, totalling 22.6 kilograms, which cost C $150,000.
- In 2014, the applicant was introduced to W, by another participant in the syndicate (whom I will call M) who owned a restaurant in Brisbane, which was used as a cash exchange hub for the syndicate. The applicant carried drugs from N to W. He estimated that over a four month period in 2014 and 2015, he delivered drugs to W on five to seven occasions, each time in a quantity of 2 kilograms of methylamphetamine. He estimated that he received approximately $2,000,000 in cash from W, which he delivered to N.
- The sentencing judge summarised the extent of the applicant’s trafficking as involving deliveries of between $12,000,000 and $17,000,000 as payment for drugs, and between 35 and 44 kilograms of substance containing a Schedule 1 drug to C and W. Her Honour added that this quantity of drugs did not take full account of the deliveries of drugs which he brought from Sydney to Brisbane, nor the 12 deliveries which he collected at Brisbane after other couriers had brought the drugs from Sydney.
- The applicant trafficked wholly for financial reasons. He was not a drug user. The judge noted the suggestion that in 2008, he was operating a business which had financial problems but said, correctly, that this did not entitle him to any leniency in his sentence.
- Her Honour said that the applicant was not “a mere courier” but was a “trusted courier”. She referred to evidence from C, in a statement he provided to police, which described the applicant as the main delivery driver for N and as N’s “right-hand man”. However, her Honour said, the applicant was not involved in the management of the criminal syndicate.
- The judge was particularly scathing in her criticism of his offending in the circumstance that the applicant had, as a younger man, become a qualified pharmacist (a career he abandoned well before this offending), and as such, would have been well aware of the terrible effects of the drugs he carried.
- Her Honour rejected the statement by the applicant’s counsel that he was ashamed of his offending. She said that the period in which he did not traffic in drugs (from late 2011 until the end of 2013) was because N did not give him work, rather than because the applicant was unwilling to perform it. In her view, it was most unlikely that the applicant was experiencing any remorse or shame for his actions. There is no challenge to that finding.
- The applicant ceased his trafficking only when intercepted and arrested by police, on 1 August 2017. Police received information that a certain car was transporting a large quantity of drugs through Rockhampton. They intercepted the car, which was being driven by the applicant with N as a passenger. A search of the car discovered drugs, three mobile phones belonging the applicant and a relatively small amount of cash. On the same day, police executed a search warrant of the applicant’s home address, where they found items he had used to package drugs prior to each delivery. He was released on bail about a week later, and subsequently charged with trafficking.
- In her sentencing remarks in open court, the judge acknowledged that the applicant was entitled to recognition for “the type of cooperation discussed in AB v R”. Her Honour accepted that the applicant’s admissions to police went significantly beyond the information which police had from their surveillance operations, and beyond information which they had obtained from “very comprehensive statements from [C]”. In particular, there was the information which the applicant provided about his couriering drug money and drugs to and from Sydney, and his dealings with W. Her Honour accepted that these were admissions entitling him to “special leniency”.
- The judge’s reasoning was then further explained in her sentencing remarks when the court was closed. Her Honour explained, with considerable reference to comparable sentences, the appropriate base component of the indicative sentence. She observed that the sentences in R v Cooney, R v Westphal, R v KAQ and R v Carlisle were cases involving trafficking in large amounts of a Schedule 1 drug, within a syndicate but not at a managerial level, but for significantly shorter periods and in significantly less quantities than in the applicant’s case. Her Honour also referred to R v Chen, R v Kostopoulos, R v Truong and R v Luu, and described the applicant’s case as more serious than them.
- In her view, the applicant’s case was more similar to that in R v Kalaja, where a sentence of 14 years was not disturbed on appeal. Her Honour concluded that in the absence of allowance for his AB cooperation and his “section 13A type” cooperation, she would have assessed the base component at 13 years. In arriving at the indicative sentence, she reduced this to 11 years, to allow for the AB cooperation.
- Her Honour recorded that the statement which the applicant gave to police not only engaged s 13A, but had also yielded an indemnity against prosecution for the earlier period of trafficking between 2008 and 2011. She considered that it was “right to bear in mind this indemnity was a significant advantage to you when considering what reduction to make in your sentence because of s 13A cooperation.”
- As to the benefit of the information provided by the applicant to police, the judge noted that it related to eight other offenders, of whom five had been charged. Her Honour said that the applicant’s information added little to the case against M and that police had a s 13A statement from C. Nonetheless, her Honour said, the applicant’s evidence was “very important” to the case against N, and she accepted that the content of the applicant’s s 13A statement would be “significant evidence” against C.
- Her Honour concluded that the appropriate discount under s 13A was to “entirely remove the effect of … the mandatory component of the s 161R sentence”, and to reduce the head sentence from 11 to 10 years.
- Her Honour then returned to the subject of the indemnity from prosecution for the early period of trafficking, saying that it distinguished the applicant’s case from others to which she had been referred by the prosecutor, who had suggested that the ultimate sentence should be one of seven years’ imprisonment. In her opinion, the imposition of a sentence of seven years, with parole eligibility after two and half years (as each counsel had suggested) would be a “clear affront to justice”.
- It is convenient at this point to discuss ground three. It is submitted that the indemnity from prosecution for the earlier period was an irrelevant consideration. It is said that the effect of the judge’s reasoning was to punish the applicant for an offence with which he was not charged. That argument cannot be accepted.
- The indemnity was a substantial benefit which the applicant derived from his undertaking to provide cooperation. Absent that indemnity, a successful prosecution for that earlier period for trafficking would have worsened the outcome for the applicant. Of course, it was important for the judge not to give too much weight to the indemnity, lest an insufficient discount of the indicative sentence should result. However the question under ground three is whether the indemnity was relevant at all.
- Where a sentence is reduced according to s 13A, it is because the interests of justice require that the offender be rewarded for his cooperation, commensurately with its value to the prosecuting authority and the risk to the offender of retribution from those whose cases would be affected by it. The expectation of such a benefit is an inducement to the provision of valuable evidence. The indemnity in this case served the same purposes. It was at least relevant to the question of what reduction in the sentence was fair and necessary in order to serve those purposes.
- The question under the first ground of appeal is whether the extent of the reduction of the sentence, for past and future cooperation, was so inadequate that it must be inferred that the judge made some error which cannot be identified. Overall, it can be seen that the judge effectively halved what would have been the sentence, absent past and future cooperation. Absent past cooperation, the base component of the indicative sentence would have been 13 years. That figure of 13 years is not itself the subject of criticism in the applicant’s argument. Without any past or future cooperation, the sentence which the judge would have imposed would have been 20 years. The outcome was a sentence, not of 20 years, but of 10 years.
- A greater reduction for the applicant’s cooperation was open to her Honour. But so too was the reduction which she judged to be appropriate.
- Grounds one and three fail.
The fourth ground: parity
- It was not until after the applicant’s sentence was imposed that C was sentenced (by another judge). C pleaded guilty to trafficking in a dangerous drug with a serious organised crime circumstance of aggravation. His period of trafficking was from the beginning of 2008 until his arrest on 1 February 2018. He trafficked in wholesale amounts of amphetamine, methylamphetamine and cannabis. His supplier was N.
- C bought approximately 56 to 64 kilograms of amphetamine, at a total cost of $15.68 million to $17.92 million. Between 2014 and 2017, he bought 30 to 36 kilograms of methylamphetamine, at a cost of $5.4 million to $6.48 million. And over his trafficking period, he purchased 410 pounds of cannabis at a cost of $1.23 million.
- C was arrested in February 2018, and committed for trial in July of that year. He was sentenced in March 2020.
- C was sentenced under s 13A. C provided a number of statements in relation to the roles and activities of members of the syndicate, including N, M and the present applicant. It was submitted by the prosecutor to that judge that it was C’s evidence against N which was considered to be of high value to the prosecution. It was said that although C’s evidence was not the only evidence against N, it supported “the evidence of other syndicate members and his evidence against the person who was seen as a leader of the syndicate.”
- The judge gave C credit for both past and future cooperation. Her Honour remarked that whether C’s admissions to police reflected remorse or “a pragmatic approach to things”, the authorities required that it needed to be recognised as significant. However, her Honour noted, cooperation is to be considered more significant in the case of an offender who is truly remorseful. Unlike the applicant, C was sentenced upon the premise that he was remorseful.
- The sentencing judge in C’s case said that the base component of C’s indicative sentence would have been 14 years, reflecting C’s past cooperation. Her Honour said that the indicative sentence would have included the mandatory period of seven years’ imprisonment, resulting in a total indicative sentence of 21 years. The sentence which was ultimately imposed, giving credit for the s 13A undertaking, was nine years’ imprisonment as the base component of the sentence, and seven years’ imprisonment as the mandatory component of the sentence, but with those terms to be served concurrently. Her Honour fixed the date of C’s parole eligibility at the half way mark of that nine year period.
- C’s criminality was greater that of the present applicant. In the present case, the trafficking was as a trusted courier, and the period of trafficking, although lengthy, was not even half that in C’s case. It may be readily inferred that, month by month, C’s trafficking was more remunerative than the applicant’s trafficking.
- Undoubtedly, the applicant and C were involved in the same criminal enterprise. Indeed most of the applicant’s deliveries were to C. The parity principle recognises that equal justice requires that, as between offenders in the same enterprise, there should not be a marked disparity which gives rise to a “justifiable sense of grievance”, and that if necessary, a sentence should be reduced, notwithstanding that it is otherwise appropriate and within permissible range of sentencing options. And a sentence may be reduced on this ground although the sentencing disparity has emerged only since the date when the sentence was imposed.
- Particularly when the criminality of C was greater than that of the present applicant, there is a marked disparity between the outcomes. C might serve four and half years compared with eight years in the applicant’s case.
- As the respondent’s submissions point out, C was found to be remorseful. However that difference could not explain all or most of the difference in the sentences. Otherwise, it could only be explained, if at all, by a difference in the respective values of the cooperation which was promised. However, the difference is not of that order. The principal value of the offender’s cooperation, in each case, was considered to be in the prosecution of N. It may be accepted that C’s cooperation might, in some ways, be more beneficial, because he was higher in the syndicate and he could give evidence in respect of the events over a longer continuous period of trafficking. Nevertheless, the applicant’s promised cooperation was recognised as valuable in the prosecution of N, and it was certainly substantial enough to put him at risk of serious retribution.
- In my opinion, considered with C’s higher criminality, such differences could not, in aggregate, explain such a marked disparity between the two sentences.
- The parity principle does not require “that sentences must strictly compare”. Nevertheless, the applicant’s sentence must be reduced, not because of any error made by the sentencing judge, but to avoid an unacceptable disparity with the sentence subsequently imposed upon a co-offender whose offending was more serious. The applicant’s sentence should be reduced to a term of nine years, with parole eligibility after six years.
- I would order as follows:
- Leave to appeal granted.
- Appeal allowed.
- Vary the sentence imposed for count one on the indictment, by substituting a term of nine years’ imprisonment, setting aside the declaration of the commission of a serious violent offence, and ordering that the applicant be eligible for parole on 10 June 2025.
- NORTH J: I agree with McMurdo JA.
 Penalties and Sentences Act 1992 (Qld) ss 161P, 161Q.
 Penalties and Sentences Act 1992 (Qld) s 161A, Schedule 1.
 Being 80 per cent of the base component of 11 years plus the mandatory component of seven years: see Corrective Services Act 2006 (Qld) s 182(2A), (2B).
  QCA 38.
 R v PBH  QCA 38 at  per McMurdo JA (Sofronoff P and Boddice J agreeing).
 R v PBH  QCA 38 at  per McMurdo JA (Sofronoff P and Boddice J agreeing).
 A reference to AB v The Queen (1999) 198 CLR 111.
  QCA 244.
  QCA 223.
  QCA 98.
  QCA 258.
  QCA 332.
  QCA 266.
  QCA 98.
  QCA 281.
  QCA 329.
 Green v The Queen (2011) 244 CLR 462 at 474  per French CJ, Crennan and Kiefel JJ.
 Postiglione v The Queen (1997) 189 CLR 295 at 301-302 per Dawson and Gaudron JJ.
 Postiglione v The Queen (1997) 189 CLR 295 at 305 per Dawson and Gaudron JJ; see also R v Henderson  QCA 12 at  per Henry J (McMurdo P and Mullins J agreeing).
 Lowe v The Queen (1984) 154 CLR 606 at 612 per Mason J.
 Being six years from the date of the original sentence (28 November 2019), reduced by 171 days of declared pre-sentence custody.
- Published Case Name:
R v TAS
- Shortened Case Name:
R v TAS
 QCA 49
Morrison JA, McMurdo JA, North J
19 Mar 2021