R v BDW[2022] QCA 197

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 11 XX 2021, each applicant entered a plea of guilty to trafficking in a dangerous drug with a circumstance of aggravation, namely, that each was a participant in a criminal organisation and knew that the offence was being committed in association with one or more persons who were, at the time that the offence was committed, participants in a criminal organisation.
2. [2]
   A contested sentencing hearing occurred on 25 and 26 XX 2021.  Apart from factual disputes, at issue was whether s 161S of the Penalties and Sentences Act 1992 (Qld) (the Act) was applicable to the cooperation proffered by each of the applicants.
3. [3]
   On 25 XX 2021, the sentencing judge found that the cooperation provided by each applicant would not be “of significant use in a proceeding about a major criminal offence” within the meaning of that phrase in s 161S of the Act.  Each applicant was ordered to serve, in addition to their base sentence for the trafficking sentence, a cumulative seven years imprisonment, pursuant to s 161R of the Act.
4. [4]
   Each applicant seeks leave to appeal their sentence on the grounds that, on a proper construction of s 161S, such a finding was not open on the evidence.
5. [5]
   Part 9D of the Act contains provisions dealing with serious and organised crime.  It was inserted into the Act by the Serious and Organised Crime Legislation Amendment Act 2016, the primary objective of which was “to implement a new Organised Crime Regime in Queensland to tackle serious and organised crime in all its forms”.  That Act repealed the controversial Vicious Lawless Association Disestablishment Act 2013, and introduced in its place, among other things, a “targeted sentencing regime” specific to offenders who commit particular offences with the “serious organised crime” circumstance of aggravation.^[1]
6. [6]
   As defined in s 161O, a “criminal organisation” is a group of three or more persons, whether arranged formally or informally:

   1. (a)
      who engage in, or have as their purpose (or one of their purposes) engaging in, serious criminal activity (defined in s 161N as conduct constituting an indictable offence for which the maximum penalty is at least 7 years imprisonment); and
   2. (b)
      who, by their association, represent an unacceptable risk to the safety, welfare or order of the community.
7. [7]
   Section 161Q(1) sets out the meaning of “serious organised crime circumstance of aggravation”, as follows:

“It is a circumstance of aggravation (a serious organised crime circumstance of aggravation) for a prescribed offence of which an offender is convicted that, at the time the offence was committed, or at any time during the course of the commission of the offence, the offender—

1. (a)
   was a participant^[2] in a criminal organisation; and

2. (b)
   knew, or ought reasonably to have known, the offence was being committed—

1. (i)
   at the direction of a criminal organisation or a participant in a criminal organisation; or

2. (ii)
   in association with 1 or more persons who were, at the time the offence was committed, or at any time during the course of the commission of the offence, participants in a criminal organisation; or

3. (iii)
   for the benefit of a criminal organisation.

8. [8]
   The sentencing regime for an offender convicted of a prescribed offence with a serious organised crime circumstance of aggravation is set out in s 161R which provides, relevantly, as follows:

“161R  Court must impose term of imprisonment

3. (1)
   This section applies to the sentencing of an offender convicted of a prescribed offence committed with a serious organised crime circumstance of aggravation.

3. (2)
   The court must impose on the offender a term of imprisonment consisting of the following components—

1. (a)
   a sentence of imprisonment for the prescribed offence imposed under the law apart from this part and without regard to the following (the base component)—

1. (i)
   the sentence that must be imposed on the offender under paragraph (b);

2. (ii)
   the control order that must be made for the offender under section 161V;

2. (b)
   (other than if a sentence of life imprisonment is imposed as the base component or the offender is already serving a term of life imprisonment) a sentence of imprisonment (the mandatory component) for the lesser of the following periods—

1. (i)
   7 years;

2. (ii)
   the period of imprisonment provided for under the maximum penalty for the prescribed offence.

…

3. (3)
   The mandatory component—

1. (a)
   must be ordered to be served cumulatively with the base component; and

2. (b)
   despite any other provision of this Act under which another sentence may be ordered, must be ordered to be served wholly in a corrective services facility; and

3. (c)
   must not be mitigated or reduced under this Act or another Act or any law.

3. (4)
   Also, if the offender is serving, or has been sentenced to serve, imprisonment for another offence, the mandatory component must be ordered to be served cumulatively with the imprisonment for the other offence. …”

9. [9]
   The only means by which the sentence imposed on such an offender can be ameliorated or mitigated is provided for by s 161S, as follows:

“161S  Cooperation with law enforcement agencies

3. (1)
   Subject to subsections (2) and (3), sections 13A and 13B apply for the sentencing of an offender who is convicted of a prescribed offence committed with a serious organised crime circumstance of aggravation.

3. (2)
   For section 13A, an offender mentioned in subsection (1) is taken to have undertaken to cooperate with law enforcement agencies in a proceeding about an offence, including a confiscation proceeding, only if—

1. (a)
   the offender has undertaken to cooperate with law enforcement agencies in a proceeding about a major criminal offence; and

2. (b)
   the court is satisfied the cooperation will be of significant use in a proceeding about a major criminal offence.

3. (3)
   For section 13B, an offender mentioned in subsection (1) is taken to have significantly cooperated with a law enforcement agency in its investigations about an offence or a confiscation proceeding only if—

1. (a)
   the offender has significantly cooperated with a law enforcement agency in its investigations about a major criminal offence; and

2. (b)
   the court is satisfied the cooperation has been, is or will be of significant use to the law enforcement agency or another law enforcement agency in its investigations about a major criminal offence.

3. (4)
   This section applies despite section 161R(3) or (4).

3. (5)
   In this section—

major criminal offence means an indictable offence for which the maximum penalty is at least 5 years imprisonment.”  [underlining added]

10. [10]
    It was expressly part of the intention underpinning the new serious organised crime circumstance of aggravation, with its targeted sentencing regime, to “encourage these particular offenders to cooperate with law enforcement agencies in proceedings or investigations about major criminal offences”.^[3]
11. [11]
    As this Court confirmed in R v PBH [2021] QCA 38; (2021) 7 QR 414 at [6], both s 13A and s 13B are procedural provisions.  The source of the court’s obligation to have regard to past cooperation (s 13B) is s 9(2)(i)^[4] and for future cooperation (s 13A) it is s 9(2)(r)^[5] of the Act.^[6]  But for an offender convicted of a prescribed offence with a serious organised crime circumstance of aggravation, in order for the procedural provisions of either s 13A or s 13B to apply, the offender must first establish, to the sentencing court’s satisfaction, that the requirement of s 161S(2) or (3) (as relevant) has been met.
12. [12]
    As Pincus J observed in R v Ianculescu [1999] QCA 439; [2000] 2 Qd R 521 at [5], a difficulty attaching to decision of cases of this sort is that no detailed explanation of the nature and extent of the cooperation can be given.  However, his Honour noted that relevant principles may be drawn from Malvaso v The Queen (1989) 168 CLR 227 at 239 and R v Thompson (1994) 76 A Crim R 75, both of which were referred to in the earlier Court of Appeal’s decision in R v D [1995] QCA 332.
13. [13]
    In Malvaso v The Queen (1989) 168 CLR 227 at 239, Deane and McHugh JJ said:

“It would be to close one’s eyes to reality to fail to recognize that in areas of organized crime in this country, particularly in relation to drug offences, the difficulties of obtaining admissible evidence are such that it is imperative, in the public interest, that there be a general perception that the courts will extend a degree of leniency, which would otherwise be quite unjustified, to those who assist in the exposure and prosecution of corrupt officials and hidden organizers and financiers by the provision of significant and reliable evidence. … Any person who provides genuine information to the authorities about the workings of organized crime exposes himself to the danger of retributive violence. That danger can be aggravated within a prison environment.”  [underlining added]

14. [14]
    In that case, the offender “had provided vital and reliable information and assistance in the prosecution of a corrupt senior police officer involved in the organized production and distribution of drugs”.
15. [15]
    In R v Thompson (1994) 76 A Crim R 75, the Court considered the significance of information provided by an offender which had helped to solve many other crimes.  He was described as having provided “highly valuable information about offenders other than himself”.  The Court recognised that substantial discounts from the sentence which would otherwise be appropriate may be justified where an offender implicates others, and said (at 78-79):

“Another indication that in appropriate circumstances heavy discounts may be granted for co-operation of the kind being considered is to be found in the Western Australian case of Hayes (1981) 3 A Crim R 286. There the applicant had been sentenced to seven years imprisonment, principally for a number of offences of breaking and entering with intent. There had been co-operation to enable the police to identify and prosecute other persons. Burt CJ remarked (at 287):

‘It is well recognised and has always been that informers can be of enormous value in the detection of crime and in the bringing of offenders to justice. Some would say that for that purpose their use is essential... Hence the dilemma. If, when an informer comes to be punished for his own criminal acts, no reward at all is given to him for the information given by him leading to the apprehension and punishment of other criminals, that information will not be forthcoming... If, on the other hand, the reward for an informer so placed is too large, it could lead to the giving of false evidence and to many other abuses’.

His Honour also said:

‘But should it appear that the information given has been of substantial assistance in the detection of crime and in the conviction of offenders and that the disclosures made have been full and frank, then when he comes to be sentenced some allowance should be made on that account. In a number of reported cases it appears that the allowance has been substantial and it has resulted in a reduction in the sentence of 50 per cent or even more. But each case must of necessity rest upon its own facts’.”  [underlining added]

16. [16]
    These cases provide some assistance in understanding what is meant by “significant use” – the relevant “use” being detection of crime, identification of offenders, prosecution and conviction of them.  The qualifier “significant” signals that it is not anything that might be characterised as cooperation that will trigger the procedure under ss 13A or 13B; it is only where the court is satisfied that the cooperation will be of “significant use”, in the detection of crime, identification of offenders and/or the prosecution and conviction of them, that the procedure will be available.
17. [17]
    It is notable that the concept of “significant use” appears in s 13B, but not in s 13A.
18. [18]
    Section 13A was inserted into the Act by the Criminal Law Amendment Act 1997 (Act No. 3 of 1997).  Section 13B was inserted into the Act by the Criminal Law Amendment Act 2014.  As explained in the Explanatory Notes to the Bill which became that Act:

“Clause 66 inserts a new section 13B (Cooperation with law enforcement authorities to be taken into account – cooperation given) to provide a regime aimed at ensuring the protection of informants, and confidentiality of the information provided, who significantly assist law enforcement agencies with their investigations but fall outside the ambit of existing section 13A as the informant is not willing to give the type of undertaking required under section 13A. For example, a person whose cooperation is reflected in an affidavit by a law enforcement agency (colloquially known as a ‘letter of comfort’) tendered to the court in support of reducing the otherwise appropriate penalty.

Section 13B is modelled on section 13A and is intended to complement the operation of section 13A by applying to offenders who have significantly assisted law enforcement agencies with their investigation, beyond simply admitting their own criminality, but who are not prepared to give the type of undertaking required by section 13A. Therefore, section 13B applies to an informant to whom section 13A does not apply. Under section 13B, the penalty imposed on the offender must be stated in open court.”  [underlining added]

19. [19]
    More broadly, the introduction of s 13B made clear the need for a sentencing judge to deal separately with past cooperation and future cooperation, to avoid a situation where an offender might be placed at risk of losing the benefit of credit for (past) assistance, already earned, if re-sentenced as a result of the promised (future) cooperation not being forthcoming.^[7]
20. [20]
    Also of note, under the procedure in s 13B, there is a requirement that a person representing the law enforcement agency (with whom the offender has cooperated) must have sworn an affidavit, which is to be handed up to the court, which must “state the nature, extent and usefulness of the cooperation given to the law enforcement agency by the offender” (ss 13B(4) and (5)).  That requirement is not replicated in s 161S; although there would be no reason why such evidence could not be tendered, if it was available.
21. [21]
    Whilst there appears to be no express discussion as to why the legislature referred only to an offender who “has undertaken to cooperate” in s 13A and to an offender who “has significantly cooperated” in s 13B, that may readily be explained by the difference in timing.  Section 13A operates to enable an offender’s sentence to be reduced, on account of their undertaking to cooperate in the future.  In practice, this generally means the offender has given an undertaking to give evidence in a future prosecution in accordance with a statement that forms part of their undertaking.  It may be difficult in that context to say whether or not the cooperation is (or will be) “significant”.  Section 13B, on the other hand, operates to enable an offender’s sentence to be reduced on account of cooperation they have already given to a law enforcement agency, the utility of which may be expected to be capable of assessment at the time of sentence.  As Pincus J observed, in R v Ianculescu at [4]:

“The principal function of s 13A is to deal with the procedure to be followed in relation to a particular sort of co-operation, namely that which is the subject of an undertaking to co-operate in future. It does not say anything about the extent to which discounts should be given for such co-operation and does not say whether co-operation of that sort is to be treated more favourably, or less favourably, than other kinds. An offender who has actually given co-operation might well, depending on the circumstances, be entitled to a greater discount than a person who has merely promised to co-operate. I have dealt with this in an endeavour to suppress the thought, which might be prevalent, that there is some unique virtue in promised co-operation falling within s 13A; there is not.”

22. [22]
    Regardless, it is clear from s 161S that, in order for either s 13A or s 13B to apply, to an offender who is convicted of a prescribed offence committed with a serious organised crime circumstance of aggravation, the court must be satisfied “the cooperation [whether that is cooperation already given, or undertaken to be given in the future] will be of significant use in a proceeding about a major criminal offence” (s 161S(2)(b)).  In that regard, at least in so far as s 13A is concerned, s 161S imposes an additional requirement, before the procedure under s 13A can apply.
23. [23]
    As is well-established, the task in construing a statute is to ascertain the intended meaning of the words used, a process which must be undertaken having regard to the context for the provision (which may include surrounding statutory provisions, extrinsic materials, the legislative history and the “mischief” which it may be seen the statute is intended to remedy).^[8]
24. [24]
    “Significant” is an ordinary, not a technical word.  In context, the ordinary meaning of significant, as informed by the Oxford English Dictionary is “sufficiently great or important to be worthy of attention; noteworthy, consequential, influential”.  Likewise, the Macquarie Dictionary relevantly defines “significant” as “important; of consequence”.  Also in the Oxford English Dictionary, the word “use”, as it appears in this context (“of [significant] use”) refers to something being applied for a purpose; utilised or appropriated in order to achieve an end or purpose.  It is important to give meaning to both words since, as the sentencing judge correctly held, the focus is not on how cooperative the offender has been; the question of “significant use” is a reference to the use of the evidence which has been provided.^[9]
25. [25]
    The ordinary meaning of the words used fits with the purpose of the provisions which, on the one hand, is to impose a strong deterrent penalty on those who would commit crime as part of a criminal organisation (s 161R) and, on the other, is to encourage such offenders to cooperate with law enforcement agencies in proceedings or investigations about major criminal offences by providing evidence which is of significant use in the detection of crime, identification of offenders, prosecution and conviction of them (s 161S; read with s 13A and s 13B).
26. [26]
    Contrary to the submissions on behalf of the first applicant, there is not a “strong public interest that the interpretation of this threshold test is not too onerous” and that it should not be a difficult one to satisfy.  The sentencing regime introduced for offenders convicted of committing a prescribed offence, with a serious organised crime circumstance of aggravation, is harsh and strict.  As the Explanatory Notes make clear, that was deliberately so, in order to strongly deter those who would become involved in criminal organisations.
27. [27]
    This is not the occasion to question the meaning of “criminal organisation” or the “serious organised crime circumstance of aggravation”, in application to the facts of this case.  Both applicants entered pleas of guilty to the offence of trafficking, with that circumstance of aggravation, and were convicted on their pleas of guilty.
28. [28]
    That being so, they were exposed to the mandatory additional penalty provided for by s 161R(2)(b).  The only circumstance in which that mandatory additional penalty may be ameliorated is where, by satisfaction of the requirement in s 161S(2) or (3), s 13A or s 13B, respectively, apply.
29. [29]
    The requirement, in s 161S(2) and (3), that the court is satisfied the cooperation “will be of significant use in a proceeding about a major criminal offence”, is to ensure that offenders convicted of committing a prescribed offence with a serious organised crime circumstance of aggravation do not defeat the mandatory component of the sentence by offering cooperation that is not of significant use or that is manufactured or contrived solely to overcome the application of the mandatory component, which is the penalty that has been legislated to deter persons from committing prescribed offences as participants in criminal organisations.  In that context, it is a potentially onerous requirement, and should not be assumed to be capable of satisfaction by any cooperation at all.
30. [30]
    Counsel for the first applicant also submitted, orally, that the assessment of whether s 161S(2)(b) has been satisfied ought to be undertaken by reference to the statement provided in the context of what facts must be proved to establish the relevant major criminal offence, and it is on that basis that the question of whether the statement is of significant use is to be determined.  That is not a correct approach, having regard to the purpose of the provision and the words used.  For example, to cooperate by giving the law enforcement agency no more information than it already has, or is otherwise able to prove, would not be of significant use in a proceeding about a major criminal offence.  Section 161S(2) (and (3), which is in the same terms) calls for a qualitative evaluation of the cooperation which has been offered, which must be undertaken in the circumstances of the particular case.
31. [31]
    In the present case, each of the applicants provided statements containing the evidence that they gave an undertaking they would be prepared to give, for the purposes of s 13A, in a proceeding about the involvement of another person (whom we shall call X), who was part of the same “criminal organisation” as them, in trafficking in methylamphetamine, which is a “major criminal offence”.  In the context of the relevant chronology, these statements came a day or so after each applicant had pleaded guilty to the offence, with the circumstance of aggravation, on the day after the trial was to have commenced.
32. [32]
    The relevant chronology is as follows:

33. [33]
    In relation to the pre-requisite in s 161S(2)(b), the sentencing judge used the statements provided by each applicant to assess whether the cooperation will be of significant use.^[10]  That was appropriate.
34. [34]
    Counsel for the first applicant described the statements as “statements drafted by police”, that could have been supplemented had further questions been asked (a submission made on the appeal, to counter the finding of the sentencing judge that the first applicant’s statement was “vague, imprecise and empty of material which, on the other evidence, must have been known to” her).  However, at the sentencing hearing the only basis upon which the court could consider whether s 161S(2)(b) was satisfied was by reference to each statement.  It is reasonable for a sentencing judge to proceed on the basis that the statement proffered is the evidence the offender is prepared to give.
35. [35]
    The sentencing judge then said (at [10] of his Honour’s Reasons):

“The question of whether particular cooperation will be of significant use has to be assessed against the circumstances of each case and the major criminal proceeding in which it is proposed that it be used.  The term ‘significant use’ should be construed by reference to the ordinary meaning of those words.  Other descriptions would include:  important or consequential or influential.  It need not be an essential part of the prosecution case, but it must be more than evidence of a peripheral nature.”

36. [36]
    Reading the phrase “major criminal proceeding” as a short-hand reference to the phrase “proceeding about a major criminal offence”, this is a correct statement of principle.
37. [37]
    After evaluating the statements of each of the applicants, the sentencing judge concluded (at [22]):

“The purported cooperation, evidenced by the statements, would not, for a sentence without the circumstance of aggravation, attract a reduction.  The statements relate almost entirely to [X] and disclose nothing of moment which was not already known.  For the reasons which I have given, I find that s 161S is not satisfied and, therefore, s 161R applies to the sentences which I impose.”

38. [38]
    Only the first applicant contended the sentencing judge erred as a matter of principle in the interpretation of s 161S(2)(b); and that was essentially limited to the contention that the test should be found to be “not too onerous”, which should be rejected.
39. [39]
    The legislative intent of s 161S is to limit the circumstances in which ss 13A and 13B of the Act can operate in respect of cooperation by offenders who offend as participants in a criminal organisation.  Whilst s 161S, in that way, relieves the tension between the mandatory regime and the sentencing discretions afforded by ss 13A and 13B of the Act,^[11] two requirements must be met for s 161S to be applicable.
40. [40]
    First, that the offender has undertaken to cooperate with law enforcement agencies in a proceeding about a major criminal offence.  Second, that the Court is satisfied the cooperation will be of significant use in a proceeding about a major criminal offence.
41. [41]
    The requirement that there not merely be relevant cooperation, but that that cooperation will be of significant use in a proceeding about a major criminal offence, provides an important qualification to the application of ss 13A and 13B of the Act to such offenders.  The importance relates to the use of the cooperation in a relevant proceeding.  The Court must be satisfied the cooperation is of significant use, not merely of use.
42. [42]
    A consideration of those words, in the context of the legislation and its purpose, supports a conclusion that the offender’s cooperation, to be of significant use, need not be an essential part of the prosecution case, but must involve more than undertaking to give evidence of a peripheral nature in the proceeding about a major criminal offence.  The evidence must be of real use to a successful prosecution of the proceeding about a major criminal offence.
43. [43]
    There was no error in the sentencing judge’s interpretation as to the circumstances in which s 161S will be applicable to a sentence of an offender who offends as a participant in a criminal organisation.  Further, the sentencing judge did not err in concluding that the fact that the offender will not ultimately be called in the proceeding about a major criminal offence was not determinative of whether the cooperation will be of significant use in that proceeding, but is a relevant factor to take into account.
44. [44]
    Once that conclusion is reached, each applicant can only succeed in respect of a ground relating to the applicability of s 161S of the Act if it be established that there has been error in the factual conclusion reached by the sentencing judge in respect of each applicant’s cooperation in the proceeding about a major criminal offence.  Absent demonstrated error or a conclusion that the finding made was not reasonably open on the evidence, appellate intervention is not warranted.
45. [45]
    Both applicants submitted his Honour erred in reaching the conclusion that he did, having regard to the content of each of the respective statements.
46. [46]
    In context, the cooperation of either applicant, as fellow participants in the criminal organisation, will be of significant use if it provides evidence of value in the prosecution of X for trafficking with the circumstance of aggravation that he did so as a participant in a criminal organisation.
47. [47]
    According to the statement of facts, the first applicant, the second applicant, X and another member of the same “criminal organisation” (whom we will refer to as Y), were all members of the criminal organisation, carrying on the business of buying and selling methylamphetamine for profit.  The methylamphetamine sold by the business was purchased predominantly from one supplier in Sydney.
48. [48]
    In respect of both applicants, there were factual issues in dispute that were resolved by the sentencing judge.
49. [49]
    The first applicant submits that her statement, in combination with the second applicant’s statement and the other evidence, was of significant use in the prosecution of X.  However, having regard to the content of the statement, there is force in the sentencing judge’s conclusion that that statement was vague, imprecise and empty of material which, on the other evidence, must have been known to her; as well as inconsistent with other material; and, importantly, portrayed the first applicant as a passive participant in the trafficking operation when the evidence was contrary to such a conclusion.
50. [50]
    Imprecise descriptions of family dynamics, trips to Sydney and the amounts of drugs and their proceeds provided no valuable feature in the prosecution of X.  That those descriptions came from the first applicant as a fellow participant who incorrectly portrayed herself as a passive participant detracted from its value, rather than enhanced it.  Such evidence thereby had limited use in the prosecution of X.
51. [51]
    There was no error in the sentencing judge’s factual conclusion that the cooperation that the first applicant undertook to provide in the prosecution of X for the offence of trafficking in dangerous drugs whilst a participant in a criminal organisation would not be of significant use in that proceeding.

52. [52]
    Whilst the second applicant’s undertaking to give evidence related to a statement which was more specific, it contained errors and minimised the regularity with which she supplied drugs and her extensive involvement with some customers.  Such a statement, having regard to the evidence otherwise available which established the second applicant’s greater involvement in the trafficking operation, was properly described as not of significant use in the prosecution of X.  Its use was limited, even allowing for the fact that the second applicant was pleading guilty to being a participant in a criminal organisation.  Those limitations arose from the lack of frankness about her own involvement which detracted from the reliability of her evidence.
53. [53]
    The cooperation shown by the second applicant’s undertaking to give evidence in accordance with that statement, in the prosecution of X, was properly found to be not of significant use in that prosecution.
54. [54]
    Accordingly, whilst it is appropriate to grant leave to appeal, given the substance of the question of interpretation involved, the appeal by both applicants is dismissed.

Orders

55. [55]
    In CA No XX of 2021:

    1. (a)
       leave to appeal be granted in respect of the ground based on s 161S of the Penalties and Sentences Act 1992;
    2. (b)
       the appeal against sentence, on the ground that s 161S of the Act was applicable, be dismissed.

56. [56]
    In CA No XX of 2021:

    1. (a)
       leave to appeal be granted in respect of the ground based on s 161S of the Penalties and Sentences Act 1992;
    2. (b)
       the appeal against sentence, on the ground that s 161S of the Act was applicable, be dismissed.