R v Ada[2022] QCA 114

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 25 January 2021, Mr Ada pleaded guilty to one count of trafficking in a dangerous drug, cocaine, between 14 December 2016 and 3 November 2017 (a period of 10 months and 20 days) and one count of possessing two mobile telephones that he had used in connection with the commission of the crime of trafficking in a dangerous drug.  Mr Ada was sentenced on the trafficking count to six years’ imprisonment.  He was convicted but not further punished in respect of the possession count which was treated as a particular of the trafficking.  One day of presentence custody was declared as time served under the sentence.  His parole eligibility date was fixed at 14 March 2023 which would be after 18 months had been served in custody.
2. [2]
   Mr Ada applies for leave to appeal on the ground that the sentencing judge erred in the consideration of the delay in sentencing, resulting in an excessive sentence warranting appellate intervention.  Mr Ada’s counsel who appears on this application (and who is not the same counsel who appeared on his behalf at the sentencing) accepts that, but for the error of principle asserted in respect of the sentencing judge’s dealing with the issue of delay, the sentence could not be considered manifestly excessive.

The circumstances of the offending

3. [3]
   The sentencing proceeded on an agreed statement of facts that was very detailed, as Mr Ada and his co-defendant Mr Duspara were the subjects of a police operation that used telecommunications and tactical intercepts, surveillance and search warrants to collect evidence.  Mr Ada was sentenced at the same time as Mr Duspara.  The trafficking business was described as a joint enterprise engaged in equally by Mr Ada and Mr Duspara.  Mr Duspara’s role was as the “front man” of the business and he conducted the sales, sourced product and dealt with the financial aspects.  Mr Ada acted as a consultant for Mr Duspara adding his reputation to the business, advising Mr Duspara on which suppliers to use and how much to charge certain customers, and providing advice and protection when conflicts arose between Mr Duspara and others.  Mr Ada was a drug user and paid cost price to Mr Duspara for the drugs used by Mr Ada, although there were occasions when Mr Ada received drugs for free from Mr Duspara.
4. [4]
   Mr Ada and Mr Duspara recruited three others to assist them in the trafficking.  The cocaine was purchased in quantities up to an ounce (28 grams) and then cut before being sold in amounts ranging from 1 gram up to 7 grams and commonly sold as an amount of 3.5 grams (an eight ball).  Mr Duspara was identified to have supplied or attempted to supply dangerous drugs to 65 customers on 365 occasions.  The true number of customers and supplies was unknown as Mr Ada and Mr Duspara used Blackberry mobile phones that could not be downloaded and encrypted messaging applications.  One telephone intercept recorded a conversation between Mr Ada and Mr Duspara that referred to violence being inflicted on a customer to recover a debt owed to the business.  A police search of Mr Duspara’s car and house was undertaken on 14 July 2017 in which police seized 13.334 grams of substance weighing 3.06 grams of pure cocaine and other drug related items.  Mr Duspara informed Mr Ada of the police search.  Despite the police interest, the trafficking continued with Mr Ada and Mr Duspara being more cautious, so the frequency of sales was harder to identify.  Police executed a search warrant at the workplace of Mr Ada and Mr Duspara on 2 November 2017 when they were then charged with trafficking and related offences.  Mr Ada was originally charged with trafficking with a circumstance of aggravation of being a participant in a criminal organisation.  The circumstance of aggravation was discontinued at the commencement of the hand up committal on 14 March 2019.
5. [5]
   The investigative accountant engaged by the police ascertained that over the trafficking period Mr Ada’s unsourced income was $10,621.

Progress of the criminal proceeding

6. [6]
   It was apparent from the indictment and the submissions made by the prosecutor before the sentencing judge that the indictment was presented in the Supreme Court on 30 August 2019 and that at a review on 15 November 2019 the indictment was listed for trial to commence on 27 April 2020.  That trial was delisted due to the COVID pandemic.  On 9 October 2020, the indictment was placed on the provisional trial list for 1 February 2021 for a trial of two weeks.  The prosecution and Mr Ada and Mr Duspara resolved a dispute with the prosecution over the extent of the trafficking period and the indictment was amended to reduce the length of the trafficking period by some three months.  The matter was then listed for a contested sentence in relation to some financial disputes.

Mr Ada’s antecedents

7. [7]
   Mr Ada was 28 to 29 years old during the trafficking period.  He had entries in his NSW criminal history from 2005 and 2010 that were treated as irrelevant for the purpose of sentencing for the trafficking offence.
8. [8]
   Psychologist, Dr Yoxall, provided a presentence assessment of Mr Ada dated 13 September 2021 after a video conference interview with him on 22 January 2021 and viewing his references and his drug diversion program workbook.  Much information about his background, Mr Ada’s view of the factors that contributed to his offending and the steps he had taken towards his rehabilitation were set out in this report including the following.
9. [9]
   Mr Ada provided long term support to his older brother who had substantial and serious health problems, was unable to work and was on a disability pension.  His parents were Turkish immigrants.  He also provided support to them as they were on disability pensions.
10. [10]
    Mr Ada completed grade 12.  He started using cocaine socially in or about 2015 which helped him deal with his worries about his parents and brother and by 2016 this had developed into daily use and dependence.  He and his wife had moved to the Gold Coast where he was employed in car sales.  He and Mr Duspara set up their own car business in October 2017.
11. [11]
    Upon being charged, Mr Ada immediately ceased his drug use.  He struggled with depression and anxiety after being charged.  The media coverage of his case and the accusation that he was involved with outlaw motorcycle gangs caused shame and distress for him and his family.  The car business failed.  Mr Ada was prescribed diazepine for his depression and anxiety.
12. [12]
    Mr Ada no longer associated with people who used drugs.  He was motivated to engage in recommended treatment to address his psychological and mental health needs and to reduce his risk of general reoffending.
13. [13]
    Dr Yoxall expressed the opinion in the report that Mr Ada’s exposure to the criminal justice system had been very stressful for him and his fear of incarceration was a significant deterrent to future offending.  That fear together with abstinence from illicit drugs indicated a general low risk of reoffending.
14. [14]
    At the sentencing hearing, Mr Ada relied on a reference from the President of the local Islamic Society that reported on the counselling and support given to Mr Ada by that community after he was charged and was withdrawing from drug use.  Mr Ada became involved in assisting in the Muslim community’s youth activities.
15. [15]
    Apart from the drug diversion program referred to in Dr Yoxall’s report, Mr Ada provided evidence of his participation in the Salvation Army’s Day Program from 27 July 2021 for six weeks in which he attended all but two sessions.  He also provided letters expressing very strong support for him from family friends and his wife and from a Court Link case manager who had dealings with him over a period of two months prior to the sentencing hearing.
16. [16]
    In both written and oral submissions before the sentencing judge, Mr Ada’s counsel emphasised the delay in the sentencing of Mr Ada as a mitigating factor and in that regard relied on Dr Yoxall’s report recording the stress suffered by Mr Ada as a result of being charged initially with the circumstance of aggravation, his stress at his exposure to the criminal justice system and his very good prospects of rehabilitation.

Sentencing remarks

17. [17]
    The sentencing remarks included the following.  Mr Ada’s guilty pleas were entered where the matter had been listed for trial which was a relevant matter to take into account.  There was utility in the pleas of guilty and they should be seen as timely pleas of guilty.  The trafficking was properly described “as high end street level dealing in cocaine with perhaps on occasions almost wholesale quantities”.  There was a repetition and persistence in the trafficking.  There were occasions when threats were made in order to enforce debts and there were disturbing aspects to some of the text messages referred to in the agreed statement of facts.  There were limited sums made by way of profit based on the analysis of unexplained income.  An aggravating feature was that when their trafficking had come to the attention of the authorities of which they were aware, the trafficking continued, although not at the same frequency as it had been carried on before the police attention.
18. [18]
    The sentencing judge had regard to Mr Ada’s background and the circumstances in which he found himself using cocaine.  There were impressive steps at rehabilitation which the psychologist considered impacted significantly (in a favourable sense) on the prospects of Mr Ada’s reoffending in the future.  Mr Ada had the support of a very strong network and community.  The need for personal deterrence was less due to Mr Ada’s extensive and successful efforts at rehabilitation.
19. [19]
    The sentencing judge rejected the contention that the criminality of Mr Ada’s offending could be appropriately recognised by a sentence as low as five years’ imprisonment, when balanced against the delay in the proceeding coming to court and the impressive rehabilitation, and considered that the criminality would be properly reflected in a sentence of six years’ imprisonment.  The sentencing judge accepted that Mr Ada’s personal circumstances did warrant the imposition of a parole eligibility date at less than the one-third mark and that would be “an appropriate balance between the need for deterrence and the need for denunciation and the need for the sentence to be just and recognise [Mr Ada’s] personal circumstances and in particular the impressive efforts towards rehabilitation”.

Was there any error of principle in the sentencing judge’s consideration of delay?

20. [20]
    Mr Longhurst of counsel who appears for Mr Ada submits that there are three aspects of delay which affected Mr Ada and which were relevant for the sentencing judge to take into account: the impact on Mr Ada of the charges remaining unresolved and particularly the period of 16 months between his being charged and the removal of the circumstance of aggravation from the trafficking charge; his impressive rehabilitation; and the “fairness of the global result” taking into account the passage of time between his being charged and being sentenced.  The submissions focus on the first and third aspects, as Mr Longhurst concedes that the sentencing judge had regard to Mr Ada’s impressive rehabilitation that was achieved after Mr Ada was charged.
21. [21]
    Delay in the prosecution of an offender between the charging of the offender and the sentencing of the offender may affect the sentencing in different ways according to the circumstances of the particular case.  Some relevant principles are referred to in R v Phillips & Woolgrove (2008) 188 A Crim R 133 in the analysis of the authorities at [52]-[56] by Fraser JA (with whom each of McMurdo P and Mackenzie AJA agreed with additional reasons).
22. [22]
    The sentencing judge’s remarks reveal that Mr Ada had discharged the burden he bore to show that he had suffered from the delay in his sentencing: see Phillips at [52].  That is shown in the sentencing judge’s rejection of delay and rehabilitation as permitting the head sentence for the trafficking to be reduced to five years, but the sentencing judge then taking into account all Mr Ada’s personal circumstances and his impressive efforts towards rehabilitation (which encompassed the effect of delay on Mr Ada) in fixing the period that had to be served before Mr Ada would be eligible for parole.
23. [23]
    The submissions for Mr Ada emphasised the stress he suffered as a result of being charged with the circumstance of aggravation until that was withdrawn at the committal hearing.  Dr Yoxall’s report identified that specific stress, but also the stress suffered by Mr Ada from being exposed to the criminal justice system (as a result of being caught committing the offence of trafficking in cocaine).  The stress suffered by Mr Ada after being charged is a reason why delay can be a mitigating factor, because of the uncertainty for an offender of an unresolved prosecution over a longer period than usual between being charged and being sentenced.
24. [24]
    The appellant’s reliance on the fairness of the global result taking into account the passage of time is merely, however, another way of expressing that not sufficient weight was afforded by the sentencing judge to delay as a mitigating factor in the circumstances.  This aspect is not a matter of principle.
25. [25]
    Another aspect of delay that was not relied on by Mr Ada (but was properly taken into account by the sentencing judge) was Mr Ada’s failure to seek to have his matter listed earlier for a contested sentence rather than proceed with trial listings.  The period specified in an indictment for the offence of trafficking constitutes particulars of the offence required by s 564(1) of the Criminal Code (Qld) to enable the person charged to be fully informed of the charge.  The dates for the period of trafficking mark the outer limits of the period during which the prosecution alleges the trafficking was conducted.  A plea of guilty to the offence particularised on the indictment is an acceptance of guilt of trafficking within the period that is particularised and does not preclude the offender from putting the prosecution to proof pursuant to s 132C(3) of the Evidence Act 1977 (Qld) of the actual period within those outer limits during which the trafficking was conducted.  Examples where there was a contested sentence as to the length of the trafficking period are R v Barker [2015] QCA 215 at [17]-[18] and R v Ta [2019] QCA 53 at [6]-[7].  There is therefore no impediment to an offender entering a guilty plea to a charge of trafficking where the period of trafficking particularised in the charge exceeds the period during which the offender admits to trafficking and leaving it to a contested sentence to refine the trafficking period rather than, as ultimately happened for Mr Ada, leaving it to his lawyers to negotiate a reduction in the particularised trafficking period in the charge before the arraignment.
26. [26]
    Although the application in this court was argued on behalf of Mr Ada on the basis the sentencing judge had made an error of principle, it was apparent from the sentencing judge’s remarks that he had not only taken into account Mr Ada’s impressive rehabilitation in mitigation but other personal circumstances of Mr Ada (including the effect of delay on Mr Ada) in conjunction with the fact that the matter had been listed for trial.  Mr Ada’s submissions on this application were therefore, in substance, directed at the weight given by the sentencing judge to all the aspects encompassed in the factor of delay rather than any error of principle on the part of the sentencing judge.
27. [27]
    Mr Ada fails in establishing any error of principle relied on for leave to appeal.

Order

28. [28]
    We order that: Application for leave to appeal refused.