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R v Volkov[2022] QCA 57

SUPREME COURT OF QUEENSLAND

CITATION:

R v Volkov [2022] QCA 57

PARTIES:

R

v

VOLKOV, Vadim Victor

(applicant)

FILE NO/S:

CA No 178 of 2021

SC No 684 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 14 June 2021 (Martin J)

DELIVERED ON:

22 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2021

JUDGES:

Fraser and McMurdo JJA and Williams J

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of trafficking dangerous drugs – where the applicant was sentenced to nine years imprisonment with no recommendation as to parole – where the applicant was aged between 32 and 33 years old at the time of the offending – where the applicant seeks leave to appeal against his sentence on the basis that it is manifestly excessive – where the applicant’s counsel at first instance conceded that the sentence actually imposed was appropriate – whether the sentencing judge erred in adopting a starting point that the trafficking would have attracted a head sentence over ten years – whether the applicant is bound by counsel’s concession at first instance – whether the sentence imposed was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant’s counsel made a concession at the sentencing hearing that the sentence which was imposed was an appropriate one – where sentencing submissions of this kind do not have the effect of displacing or qualifying the applicable law – where they neither expand nor confine the judge’s discretionary power – where the respondent submits that the concession made by the applicant’s counsel should matter in the exercise of this Court’s discretion – whether the concession by the applicant’s counsel before the sentencing judge has a bearing upon whether the sentence should be held to have been manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 15, s 15(1A)

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited

Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46, cited

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited

R v Civcija [2018] QCA 83, cited

R v Flew [2008] QCA 290, cited

R v Frame [2009] QCA 9, cited

R v Lowien [2020] QCA 186, cited

COUNSEL:

S C Holt QC for the applicant

S L Dennis for the respondent

SOLICITORS:

Macquarie Legal for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    FRASER JA:  I agree with Williams J’s conclusion that the sentence is not manifestly excessive.  I agree also with McMurdo JA’s reasons.  The application for leave to appeal should be refused accordingly.
  2. [2]
    McMURDO JA:  I have read the reasons in draft of Williams J, in which the facts and circumstances of this offence, the course of the sentencing hearing and a number of cases of varying resemblance to the present one are thoroughly considered.  I agree that the application for leave to appeal should be refused because the sentence is not manifestly excessive.  I wish to add something about the relevance or otherwise of a concession by the applicant’s counsel, at the sentencing hearing, that the sentence which was imposed was an appropriate one.
  3. [3]
    In 2014, when the High Court gave its judgment in Barbaro v The Queen,[1] it was customary in this State for sentencing judges to receive submissions which suggested an appropriate outcome or range of outcomes.  The practice was thought, in many cases at least, to be helpful by reducing the likelihood of errors by sentencing judges.  The practice was endorsed by this Court, and there were authoritative statements of this Court as to the way in which a defendant’s submissions for a particular outcome might limit the defendant’s prospects in an appeal.  For example, in R v Flew,[2] Keane JA said:

[27] Next, it should be noted that the sentence imposed was in accordance with that proposed to the learned sentencing judge by the applicant's Counsel. While it is true that the imposition of a just sentence is the responsibility of the sentencing judge, appeals are available to correct errors on the part of the sentencing judge, not to provide a second hearing on sentence as if the first sentence were merely provisional. When an offender seeks leave to appeal against a sentence on the ground that the sentence is manifestly excessive, it must be recognised that the ground of the application is directly contradicted by the conduct of the applicant's case before the sentencing judge by which the applicant is bound.

[28] The circumstance that the sentence which was imposed accorded with the submission put to the sentencing judge on the offender's behalf means that an assertion that the sentence imposed was manifestly excessive could be upheld only in circumstances which are sufficiently exceptional to warrant relieving the applicant from responsibility for the conduct of his case at first instance. …”.[3]

  1. [4]
    For a time after Barbaro, the practice was discontinued in Queensland before being resumed upon the enactment of s 15(1A) of the Penalties and Sentences Act 1992 (Qld).
  2. [5]
    Section 15 relevantly provides:

15 Information or submissions for sentence

  1. (1)
    In imposing a sentence on an offender, a court may receive any information, including a report mentioned in the Corrective Services Act 2006, section 344, or a sentencing submission made by a party to the proceedings, that it considers appropriate to enable it to impose the proper sentence.

(1A) Also, without limiting subsection (1), in imposing a sentence on an offender, a court may receive any information, or a sentencing submission made by a party to the proceedings, that the court considers appropriate to enable it to decide—

  1. (a)
    whether it may make a control order for the offender under part 9D, division 3; or
  1. (b)
    the appropriate conditions of a control order it must, or may, make for the offender under part 9D, division 3.

  1. (3)
    In this section—

sentencing submission, made by a party, means a submission stating the sentence, or range of sentences, the party considers appropriate for the court to impose.”

  1. [6]
    In Barbaro, a judge sentencing two offenders in the Supreme Court of Victoria declined to receive a submission from the prosecutor as to the bounds of the available sentencing ranges for them.  Each sought special leave to appeal to allege that this made the sentencing hearing procedurally unfair and involved the judge failing to take into account a relevant consideration.  Special leave to appeal was granted but the appeals were dismissed.  In the joint judgment of French CJ, Hayne, Kiefel and Bell JJ it was held that the applicant’s arguments depended on two flawed premises.  The first premise was that the prosecution is permitted (or required) to submit to a sentencing judge its view of what is the range of sentences which may be imposed on an offender.  The second premise was that such a submission is a submission of law.  Their Honours said:[4]

The prosecution's statement of what are the bounds of the available range of sentences is a statement of opinion.  Its expression advances no proposition of law or fact which a sentencing judge may properly take into account in finding the relevant facts, deciding the applicable principles of law or applying those principles to the facts to yield the sentence to be imposed.”

Their Honours also said:[5]

If a sentencing judge is properly informed about the parties' submissions about what facts should be found, the relevant sentencing principles and comparable sentences, the judge will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about available range.  If the judge is not sufficiently informed about what facts may or should be found, about the relevant principles or about comparable sentences, the prosecution's proffering a range may help the sentencing judge avoid imposing a sentence which the prosecution can later say was manifestly inadequate.  But it will not do anything to help the judge avoid specific error; it will not necessarily help the judge avoid imposing a sentence which the offender will later allege to be manifestly excessive.  Most importantly, it will not assist the judge in carrying out the sentencing task in accordance with proper principle.”

(Footnotes omitted.)

It can be seen why the practice of prosecutors in Queensland changed, as it had to do, on the authority of Barbaro.[6]

  1. [7]
    The effect of Barbaro was not entirely negated (if that was possible) by the amendment to s 15.  By the amendment, a sentencing court may receive a submission stating the sentence, or range of sentences, the party considers appropriate for the court to impose.  But that did not affect in any respect the sentencing principles which courts must apply.  It is the duty of a sentencing judge to sentence according to the principles which are prescribed by the applicable statutory provisions and as developed by the judge made law.  It remains the case, as was said in Commonwealth v Director, Fair Work Building Industry Inspectorate, that:[7]

[I]n criminal proceedings the imposition of punishment is a uniquely judicial exercise of intuitive or instinctive synthesis of the sentencing facts as found by the sentencing judge … and the judge’s relative weighting and application of relevant sentencing considerations in accordance with established sentencing principle.”

(Footnote omitted.)

  1. [8]
    Sentencing submissions of this kind do not have the effect of displacing or qualifying the applicable law.  They neither expand nor confine the judge’s discretionary power.  Where a specific error of a sentencing judge can be identified, this Court is obliged to re-sentence unless, in its own judgment, it agrees with the order of the judge.  In a case where no specific error can be identified, but the sentence is manifestly excessive such that there must have been an error by the judge, and “a substantial wrong has in fact occurred”,[8] this Court must resentence the offender.  Just as the exercise of the sentencing discretion cannot be qualified by sentencing submissions of this kind, a sentence which betrays some misapplication of principle does not cease to be so for the fact that the error has been contributed to by an errant submission to the judge.  It was such a case to which Sofronoff P was referring in R v Civcija[9] where he said:

“However, if on the facts of a particular case an applicant’s submissions on sentence were wrong when made then, despite an applicant’s instructions to make those submissions and however forensically powerful it might be to contend that an applicant only got what he or she asked for, this Court would remain obliged to impose the sentence that ought to have been imposed as a matter of law.”

  1. [9]
    In the present case, the respondent acknowledges the authority of that statement, but submits that the concession made by the applicant’s counsel should matter in the exercise of this Court’s discretion.  It is said that the submission before the sentencing judge, agreeing to the outcome which is now challenged, remains “a matter of weight in considering a discretionary application by this Court for leave to appeal …”.[10]  That submission cannot be accepted.
  2. [10]
    One further matter should be noted.  It is that a submission by a prosecutor as to the appropriate sentence might matter in an appeal by the Attorney-General, where different considerations apply and there is the so-called “residual discretion” involved.[11]
  3. [11]
    It follows that the concession by the applicant’s counsel before the sentencing judge has no bearing upon whether the sentence should be held to have been manifestly excessive.
  4. [12]
    WILLIAMS J:  The applicant seeks leave to appeal his sentence on the ground that the sentence imposed was manifestly excessive.
  5. [13]
    On 24 June 2021, the applicant pleaded guilty to one count of trafficking in dangerous drugs between 5 August 2014 and 5 August 2015 and was sentenced to nine years imprisonment with no recommendation as to parole.
  6. [14]
    The applicant submits that the sentence was based on an erroneous starting point that had the matter gone to trial, a sentence of 10 years or more would have been imposed.  As a result of this starting point, while there were mitigating factors applied to reduce the sentence to nine years, the sentence was manifestly excessive.
  7. [15]
    The applicant submits that the sentence imposed should be set aside and the Court of Appeal exercise its discretion to re-sentence the applicant to a period of eight years imprisonment with parole eligibility set at one-third.[12]
  8. [16]
    There are two discrete issues arising from the applicant’s submissions that need to be considered:
    1. (a)
      First, the effect of Counsel for the applicant’s concession at first instance that the sentence actually imposed was appropriate.
    2. (b)
      Second, whether the sentencing judge erred in adopting the starting point that the circumstances of the applicant’s drug trafficking would have attracted a head sentence of over 10 years had it proceeded to trial, resulting in the sentence imposed being manifestly excessive.

Background facts

  1. [17]
    The sentence proceeded on the basis of an agreed statement of facts.[13]  The agreed facts included:
    1. (a)
      The applicant’s trafficking business came to light as a result of a Crime and Corruption Commission investigation into an alleged drug distribution operation within the Gold Coast area.
    2. (b)
      A principal target of the investigation was Paul Vella, who sourced commercial quantities of drugs from New South Wales and used multiple couriers to transport them to distribution points on the Gold Coast.
    3. (c)
      The investigation identified a number of people being customers or distributors for drugs sourced by Paul Vella and Steven Phillips.  The applicant was identified through a mobile phone number as frequently communicating with these individuals.
    4. (d)
      The applicant was also observed by surveillance attending an automotive workshop on numerous occasions, which was used for commercial production and distribution of methylamphetamine.
    5. (e)
      A further investigation from 18 February 2015 focused on the applicant’s alleged drug distribution.  This included lawfully intercepted telephone conversations, and further obtained covert video, audio and tracking devices in the applicant’s car.
    6. (f)
      Between 5 August 2014 and 5 August 2015, the defendant carried on business of supplying cocaine, methylamphetamine and steroids.
    7. (g)
      The exact number of customers and frequencies of actual supplies is difficult to ascertain as a result of the variety of techniques used to conceal his activities.  This included coded conversations and Blackberry mobile phones.
    8. (h)
      The applicant supplied drugs in high retail amounts up to wholesale amounts ranging in quantities valued in the hundreds of dollars up to, on one occasion, three ounces.  There is also evidence of supplies in the amounts of an eight ball (3.5g) on one occasion and an ounce (28g) of cocaine on another.
    9. (i)
      The applicant had a central customer base.  He regularly discussed meeting, often in public places such as car parks, restaurants or shopping centres.  But it is not possible to identify how many actually involved drug supplies.
    10. (j)
      The applicant supplied drugs either himself directly to his customers, or via a courier (who simultaneously operated his own drug business).
    11. (k)
      Drugs were supplied on credit to customers.  Further, multiple storage sheds and cash deposit boxes were utilised and the applicant frequented these throughout the trafficking period.
    12. (l)
      The applicant and others used code, including references to “catch up”, “eat”, “feed”, “Sushi”, “coffee” and “cars” which were subsequently confirmed to be code for drugs or drug-related meetings.
    13. (m)
      The applicant received a package from Hong Kong containing Blackberry mobile phones which the applicant subsequently distributed to his contacts including Stephen Phillips.
    14. (n)
      The applicant met with customers over short periods of time.  The meetings often lasted only seconds and did not involve, for example, any food.  Surveillance at times identified a small package changing hands.
    15. (o)
      On 3 August 2015, an auto-electrician located one of the covert surveillance devices which had been placed inside the applicant’s car.  The police operation was closed as a result.
    16. (p)
      On 4 and 5 August 2015, police arrested the applicant and executed a series of search warrants at his houses, storage sheds and safety deposit boxes.
    17. (q)
      During these searches, police located a small quantity of drugs, prescription drugs, chemicals, weapons and a large quantity of cash totalling $382,900.00.
    18. (r)
      The cash was used as working capital in the applicant’s drug business, as well as his other illicit business activities such as off-the-book money lending.
  2. [18]
    The statement of facts also sets out more specific detail in respect of some of these facts.
  3. [19]
    In respect of the cash located, the applicant submits that the respondent did not allege the extent to which the cash reflected profits or turnover from drug trafficking or other business dealings involving selling second-hand cars and money lending.
  4. [20]
    The applicant was 32-33 years old at the time of the commission of the offence and was 39 years of age at the time of sentence.
  5. [21]
    Further, the applicant has a criminal history.  It is described as “of some relevance” by the respondent and “limited and largely irrelevant” by the applicant.  The sentencing judge referred to it as a “brief criminal history”.
  6. [22]
    The applicant’s criminal history includes:
    1. (a)
      A conviction for a minor[14] drug possession offence in May 2014.[15]
    2. (b)
      A conviction in 2009 for grievous bodily harm, with the complainant suffering facial fractures.  The applicant was sentenced to 18 months imprisonment wholly suspended for an operational period of three years.
    3. (c)
      A drug possession offence in 2008, with no conviction recorded.
  7. [23]
    Arising out of the searches undertaken by police at the conclusion of the investigation into drug trafficking, the applicant was also charged with a number of offences committed on 4, 5 and 6 August 2015, being nine offences of possession of unlawful weapons of various types, including firearms, eight offences of possession of ammunition or magazines for firearms and four offences of possession of weapons with altered identification marks.  The applicant was sentenced for these offences in December 2015.
  8. [24]
    The mitigating circumstances relied upon by the applicant at the sentencing hearing were as follows:
    1. (a)
      A plea of guilty.
    2. (b)
      A period of delay of five years, which was not the fault of the applicant.
    3. (c)
      During that period, the applicant had been rehabilitated (showing three negative drug screens) and was seeing a psychiatrist and a psychologist.
    4. (d)
      The applicant has a range of mental health issues, connected to his offending, but not causative of his offending.  The applicant had been diagnosed with autistic spectrum disorder, ADHD, generalized anxiety disorder, recurrent major depressive disorder and panic disorder.  It was submitted that this made him “more susceptible to drug use and drug abuse” and this then “snowballed” into drug dealing.
  9. [25]
    The applicant also referred to the following additional factors:
    1. (a)
      He had two children in the six years between being charged and sentenced.  His children are now six and three years old.  His eldest daughter is on the NDIS.
    2. (b)
      The applicant was “embarrassed and remorseful for his offending”.
    3. (c)
      The 52 days the applicant spent in custody was a sobering experience, being his first time in custody.

Sentence

  1. [26]
    At the sentencing hearing on 24 June 2021 the respondent submitted that a sentence of nine years imprisonment without a recommendation for parole was appropriate.  The respondent contended that the sentence would have been more than 10 years had the applicant been sentenced at trial and the mitigating features reduced the sentence to nine years imprisonment.
  2. [27]
    The sentencing judge was referred to comparable authorities of:
    1. (a)
      R v Lowien[16] – a sentence of 10 years imprisonment with a serious violent offence declaration.
    2. (b)
      R v Wainscott[17] – a sentence of nine years imprisonment with no parole recommendation.
  3. [28]
    Counsel for the applicant at the sentencing hearing did not “cavil” with the respondent’s submission as to the appropriate sentence.  Acknowledging that they did not take the matter much further than the authorities relied upon by the respondent, the applicant referred to the additional comparative authorities of:
    1. (a)
      R v Berry[18] – a sentence of nine years imprisonment, with parole eligibility after four years.
    2. (b)
      R v Boyd[19] – a sentence of eight years imprisonment, with parole eligibility at one third.
  4. [29]
    Counsel for the applicant at the sentence hearing referred to the circumstances of mitigation identified above.  It was submitted on behalf of the applicant that these mitigating circumstances supported the submission of the respondent on the appropriate sentence.
  5. [30]
    The sentencing judge in imposing the sentence:
    1. (a)
      Considered that had the matter gone to trial, it would have been expected that the applicant would receive a sentence of “at least 10 years, perhaps a bit more”.
    2. (b)
      Reduced the head sentence from 10 to nine years taking into account the applicant’s plea of guilty, the considerable delay, the applicant had been of good character[20] and in reasonably secure employment and domestic relationships since his arrest and his efforts to rehabilitate.

Submission at first instance

  1. [31]
    I have read the reasons of McMurdo JA in respect of the effect of the concession made by Counsel for the applicant at the sentencing hearing and agree with those reasons.
  2. [32]
    Accordingly, it is necessary to consider whether the sentence imposed is manifestly excessive.

Error in starting position resulting in sentence being manifestly excessive

  1. [33]
    The applicant’s contention is that the learned sentencing judge erred in adopting the starting position that the circumstances of the drug trafficking would have attracted a head sentence of over 10 years had the applicant gone to trial.
  2. [34]
    The applicant says that this is an error as it fails to accurately characterize the offending as set out in the agreed Statement of Facts.  It is submitted that this error is founded on two bases:
    1. (a)
      A consideration of the comparative authorities and the relative scope and scale of trafficking; and
    2. (b)
      The absence of aggravating circumstances in respect of the applicant.
  3. [35]
    House v The King[21] identifies that error in exercising a discretion may be:
    1. (a)
      Acting upon a wrong principle;
    2. (b)
      Being guided or affected by extraneous or irrelevant matters;
    3. (c)
      Mistaking the facts; or
    4. (d)
      Not taking into account a material consideration.
  4. [36]
    Further, if “upon the facts [the decision] is unreasonable or plainly unjust” it may be inferred that there has been a failure to properly exercise the discretion.  While the precise error may not be identifiable, the ground justifying a review of the decision is “that a substantial wrong has in fact occurred”.[22]
  5. [37]
    Consistent with this approach, the question of whether a sentence is manifestly excessive has been considered extensively.
  6. [38]
    The High Court in R v Pham relevantly stated:[23]

“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”

  1. [39]
    Further, Morrison JA in R v MCT[24] observed:

“To succeed on an application based on manifest excess, it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters.  It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is ‘unreasonable or plainly unjust’.  Consistently with the accepted understanding that there is no single correct sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.”  (footnotes omitted)

  1. [40]
    Here the applicant contends that as a result of the incorrect starting point the applicant’s mitigating circumstances were not adequately reflected in the sentence imposed, resulting in the sentence being manifestly excessive.
  2. [41]
    The practical issue is that if a sentence of 10 years or over was imposed a mandatory non-parole period of 80 per cent of the sentence applied.  While the sentencing judge did not expressly state this, it can be inferred that this factored into the approach.
  3. [42]
    Where the head sentence started from a position of 10 years or over, the mitigating circumstances applied to reduce the head sentence and did not also operate in respect of the parole eligibility date.  That is, the benefit of the mitigating features applied once to reduce the “top” of the sentence and could not be applied again to adjust the parole eligibility date as this would be a “double benefit”.[25]  As a consequence, the sentencing judge reduced the sentence to nine years but made no recommendation as to parole.
  4. [43]
    In these circumstances, the starting point for the sentence has an effect on whether the sentence imposed is “unreasonable or plainly unjust”.
  5. [44]
    The applicant submits that the cases of R v KAX,[26] R v Lowien[27] and R v Wainscott[28] (which is discussed in the earlier authorities) are circumstances involving mature, largescale, wholesale drug trafficking of schedule 1 drugs for lengthy periods of time.[29]  Those factors support a sentence of 10 to 12 years, even where there is a plea of guilty.
  6. [45]
    Additionally, the applicant submits that these cases support a sentence of 10 years or more for drug trafficking where:
    1. (a)
      There are substantial profits (being hundreds of thousands of dollars);
    2. (b)
      There is commercial or predominantly commercial motivation;
    3. (c)
      The offender is the head of a syndicate;
    4. (d)
      It involves a particularly sophisticated operation; or
    5. (e)
      The offender has only slight prospects of rehabilitation or a particularly lengthy or relevant criminal history.
  7. [46]
    In contrast, the applicant contends that sentences under 10 years have been imposed for wholesale drug trafficking, even for periods in excess of one year and including where threats of violence are present.[30]
  8. [47]
    The following features are identified to support the conclusion that it was an incorrect starting point to consider a sentence of 10 years or more if the applicant had gone to trial:
    1. (a)
      The applicant’s business was “high retail up to wholesale” sales.
    2. (b)
      The statement of facts was silent on the profit made by the applicant.
    3. (c)
      There was no other information about the large sum of cash located in the search other than it was used as capital in the trafficking as well as in the applicant’s other illicit money lending business.
    4. (d)
      There was no evidence as to how many supplies were engaged in and the prices paid for sales of drugs (other than to the extent of the few specific instances identified in the statement of facts).
    5. (e)
      The statement of facts did not allege or establish that the applicant was the “head of a syndicate” or part of any syndicate.  The applicant supplied drugs personally or sometimes used a courier.
    6. (f)
      There was no suggestion of threatened or actual violence as part of the trafficking business.
    7. (g)
      The applicant did not have a lengthy or relevant criminal history.  The applicant had prospects of rehabilitation as reflected in the sentencing judge’s comment that “there are signs … of a capacity to rehabilitate”.
  9. [48]
    It is in these circumstances that the applicant contends that the sentence imposed does not reflect these features and the powerful mitigating factors, resulting in the sentence being manifestly excessive.
  10. [49]
    In reply, the applicant also refers to the authorities of R v Church[31] and R v Walker.[32]  These authorities are referred to in support of the contention that there is a need to distinguish between trafficking operations with the features discussed in R v KAX and R v Lowien and those in a lesser category.  The applicant contends that the applicant’s offending, properly characterised, is in the lesser category.
  11. [50]
    The applicant accepts that this Court is not required to “grade the criminality involved” by undertaking a detailed analysis of the aggravating and mitigating factors.[33]  However, the applicant submits that these two cases emphasise the significant differences in the sentences depending on whether aggravating features are present.
  12. [51]
    In R v Church the Court of Appeal re-sentenced the applicant to six years[34] imprisonment in respect of trafficking in cannabis and methylamphetamine for approximately four months.  In that case the extent of the trafficking could not be defined but there was a “sense” of the operation.  The cannabis operation was, by inference, at a wholesale level and the methylamphetamine operation was “low” level.
  13. [52]
    The offending in R v Church is less serious than the applicant, was for a shorter period and only involved one schedule 1 drug.  Similar to the applicant, the offender was mature, pleaded guilty, provided some insight into offending, engaged in activities promoting rehabilitation and had an extremely disadvantaged childhood which resulted in an early drug dependency.  However, in contrast to the applicant, the offender in R v Church offended on bail and in custody.
  14. [53]
    The applicant submits that the trafficking in R v Walker is “closer in character” to the applicant’s offending than the large operations referred to in the earlier authorities.  While the Court of Appeal dismissed the application for leave to appeal against sentence, the Court compared the six-and-a-half year sentence with comparative authorities and concluded it was “readily reconcilable” with the sentence imposed in R v Arnott.[35]
  15. [54]
    In R v Walker, the offender was found guilty after a jury trial of trafficking in methylamphetamine and marijuana over an eight and a half month period.  The trafficking included buying methylamphetamine in ounce amounts and the regular sale of eight balls/3.5 grams.  The offender was commercially motivated, with supplies to 15 customers on a regular basis.  Further, the offender used drugs several times a week but it was not found that a drug addiction explained her offending.
  16. [55]
    Like the applicant, the offender was mature, with a not significant criminal history and with mental health issues taken into account on sentence, but which were not found to have contributed to the offending.  In contrast to the applicant, the offender whilst on bail continued the trafficking and was found to have shown no remorse.
  17. [56]
    It is accepted that the applicant’s offending was more serious:  it was for a period of 3.5 months longer and involved two schedule 1 drugs.  However, it is submitted that a starting point of over 10 years for the applicant after trial is irreconcilable with the sentence in R v Walker of six-and-a-half years after trial taking into account the “scale and severity” of the applicant’s offending.
  18. [57]
    The respondent submits that the sentencing judge arrived at an independent determination as to the appropriate sentence by reference to the comparable authority of R v Wainscott.  Further, it is submitted that the authorities relied upon involved comparable offending and clearly supported the sentence imposed.
  19. [58]
    The respondent further submits that the sentence appropriately took into account the mitigating circumstances and balanced the various competing factors.
  20. [59]
    In respect of the circumstances of the trafficking, the respondent in particular points to the following:
    1. (a)
      The applicant has a criminal history of some relevance with a conviction for a ‘minor drug’ possession offence in May 2014.  Relevantly, the offending occurred three months prior to the commencement of the trafficking period and he appeared in Court the day after the commencement of the trafficking period.
    2. (b)
      The trafficking involved three types of dangerous drugs: cocaine and methylamphetamine (both schedule 1) and steroids (schedule 1A).
    3. (c)
      The applicant was a close associate of Paul Vella and Stephen Phillips and was trusted with information and/or had personal knowledge of details of their operations.
    4. (d)
      The applicant received a package containing Blackberry devices and distributed them to his contacts, including Steven Phillips.
    5. (e)
      The applicant had a “central customer base”, with at least eight individual customers identified by name.
    6. (f)
      The applicant had access to larger quantities of drugs, including five ounces, three ounces of methylamphetamine and an ounce of cocaine.[36]
    7. (g)
      The applicant used a variety of storage locations, including storage sheds, units and safety deposit boxes to conceal drugs, money and other valuables and weaponry.
    8. (h)
      The applicant had in his possession five handguns, a sub-machine gun, a silencer and a “military style machine gun” (though apparently inoperable).
    9. (i)
      The applicant enlisted a courier for some transactions.
    10. (j)
      The operation was closed by police once one of the surveillance devices was located.  The applicant did not desist his offending of his own volition.
  21. [60]
    The respondent points to a degree of sophistication in the applicant’s trafficking business and that the operation “straddles” trafficking in high end street amounts and wholesale amounts.  Further, some of the comparative authorities do not describe the trafficking in these terms but refer to “significant quantities”.[37]  The respondent submits that the applicant is a mature offender, who pleaded guilty and the trafficking involved significant quantities of drugs.
  22. [61]
    At the hearing, Counsel for the respondent also referred to the decision of R v Corbett[38] where the Court of Appeal refused leave to appeal against a sentence of nine years imprisonment with no order as to parole in respect of one count of trafficking.  The respondent submits this case involved similar criminality to the current case in that the offending involved street level to wholesale amounts and it was not possible to establish the profit made.  The starting point for the sentence was 11 years and the mitigating factors reduced the sentence to nine years.[39]
  23. [62]
    Holmes CJ, with whom Morrison and McMurdo JJA agreed, stated:

[17] The cases cited do not, for the reasons discussed, demonstrate that the sentence imposed on the applicant was outside a proper sentencing range.  The starting point of 11 years was not out of the question for offending of this seriousness, notwithstanding that a relatively short trafficking period was involved.  Although short, it was an intensive period of trafficking for both profit and personal use, with the applicant amassing substantial debts owed to him; as the tick list demonstrated.  The proportions of the offending were made considerably more grave by the fact that the applicant was found in possession of such a large amount of pure methylamphetamine.”

  1. [63]
    In refusing the application for leave to appeal, her Honour stated:

[19] My conclusion is that the sentence, while a severe one, was not outside a proper sentencing range so as to be manifestly excessive.”

  1. [64]
    The respondent submits that no circumstances exist for this Court to interfere with the sentence imposed.  The sentence was consistent with the comparable authorities identified and the sentence cannot be said to be unreasonable or plainly unjust.
  2. [65]
    In R v Wainscott[40] the Court of Appeal considered an application for leave to appeal a sentence imposed in respect of a trafficking count on the basis of a specific error.  The alleged error was the sentencing judge impermissibly had regard to the irrelevant considerations that the applicant could have his bail revoked prior to sentence, so as to commence his term in custody at an earlier time.
  3. [66]
    Boddice J, with whom Fraser and Morrison JJA agreed, concluded that the sentence represented “a sound exercise of the sentencing discretion”[41] and leave to appeal was refused.
  4. [67]
    The circumstances in R v Wainscott involved a guilty plea in respect of offending including trafficking in the dangerous drug, methylamphetamine.  The trafficking was “for about eight months, at a wholesale level, for significant profit”.  There was a small customer base but the trafficking was conducted in a “fairly sophisticated way”.  Further, there was great care taken to avoid detection.  The amounts were wholesale level and financial analysis identified profit of over $85,000.  There was also a separate possession charge in relation to 198.6 grams of pure methylamphetamine.
  5. [68]
    During submissions in the current application, counsel agreed that the sentencing remarks in Wainscott identify a delay in that case of two years, which was not the fault of the applicant.
  6. [69]
    Further, in Wainscott, while the offender had developed a dependency on methylamphetamine the trafficking went beyond supporting his drug habit.
  7. [70]
    Boddice J observes:

“The sentencing judge found that the applicant’s conduct would justify a sentence of 10 years’ imprisonment, but that the appropriate sentence was nine years as contended for by the applicant’s counsel, having regard to that inordinate delay, the applicant’s subsequent largely good character, his endeavours to progress his rehabilitation, even though the evidence of that rehabilitation was not compelling, and the claim to have been drug-free was undermined by the drug driving conviction.  There were, however, other aspects supportive of rehabilitation, such as: employment, a new relationship, fatherhood and the care of his disabled brother.

The reduction in the head sentence from 10 years, with the avoidance of an automatic declaration that the applicant had been convicted of a serious violent offence, to a sentence of nine years’ imprisonment, with no specific earlier parole eligibility date being set, represented a sound exercise of the sentencing discretion.  Such a sentence properly reflected not only the consequence of the inordinate delay and the benefit of the applicant’s cooperation by his pleas of guilty, it properly reflected the other mitigating factors, including the applicant’s attempts at rehabilitation and his lack of relevant criminal history.”[42]

  1. [71]
    R v Lowien was also referred to for comparison purposes.  In that case, the Court of Appeal considered an application for leave to appeal a sentence of 10 years for trafficking in dangerous drugs and other offending.  The application raised two errors, one a factual error in respect of the offender’s custodial history and the second, that imposing a sentence of 10 years for the trafficking offence reflecting all of the criminality was in error.  The overall sentence incorporated an offence which did not attract a serious violent offence declaration, which formed the basis of the second alleged error.
  2. [72]
    Philippides JA, with whom Sofronoff P and Fraser JA agreed, granted leave to appeal but dismissed the appeal.  The circumstances of the offending included:
    1. (a)
      The offender and the co-offender were the head of a drug trafficking business trafficking in a number of dangerous drugs: methylamphetamine, MDMA, cocaine and cannabis.
    2. (b)
      They were responsible for sourcing, purchasing and distribution of the drugs.
    3. (c)
      The trafficking period was over 10 months and ceased only when the offender was taken into custody for possession of methylamphetamine (for which he had been on bail).
    4. (d)
      The offender primarily trafficked in methylamphetamine and MDMA, while the co-offender primarily trafficked cocaine and cannabis.  However, there were “referrals” of customers to each other.
    5. (e)
      Two further individuals were involved.  One operating as a courier for payment, and the other providing a place of storage for cash or drugs.
    6. (f)
      Wholesale quantities were supplied to 15 regular customers, who on-supplied to their own customer base.
    7. (g)
      The trafficking operation was sophisticated and drugs were sourced from Melbourne, Sydney and overseas.
    8. (h)
      Communications were conducted over message services with auto delete functionality or coded in an attempt to avoid detection.
    9. (i)
      Ten kilograms of methylamphetamine and 12 kilograms of cannabis were sourced from a one supplier over a number of trips.
    10. (j)
      Cocaine was sourced in quantities of 150 grams for between $40,000 and $50,000.
    11. (k)
      The profit from the trafficking in methylamphetamine was “in the realm” of $600,000, about $60,000 per month.  The turnover was considerably greater.
    12. (l)
      Two packages addressed to the individual providing storage were intercepted with 417.321 grams of cocaine, with a pure weight of 212.578 grams.
  3. [73]
    The offender was mature (being 62 years of age at sentence and 59 to 60 at the time of offending).  He had used drugs but it was not submitted that he was drug dependant or that his offending was motivated by addiction.  He also had a criminal history which included a prior possession conviction for 10.996 grams of methylamphetamine, being 7.939 grams pure, for a commercial purpose.
  4. [74]
    An error was made out in respect of the sentencing judge’s understanding of the offender’s criminal history.  Leave to appeal was conceded as a result.  However, the issue was whether on the re-exercise of the discretion a different sentence should be imposed.
  5. [75]
    Philippides JA then undertook a review of comparative authorities in the re-exercise of the sentencing discretion.  The authorities reflect a sentence of around the 10 year mark for a broad variety of trafficking circumstances.  This includes:
    1. (a)
      R v Tran; Ex Parte Attorney-General (Qld)[43] was an attorney’s appeal against a sentence of nine and a half years imprisonment.  The offender was 33 years of age with no criminal history and involved large scale wholesale trafficking in methylamphetamine and MDMA over a five and a half month period and other drug offences.  The appeal concerned the parole date set at one third.  The mitigating factors were taken into account in the reduction in the head sentence and to further ameliorate the sentence by reducing the parole date.  This had the effect of a “double benefit” and the parole eligibility date set by the sentencing judge was set aside with no other order being made.  Relevantly, the offender’s plea was a late plea and he was at large for five months following a failure to appear at his sentence.
    2. (b)
      R v Safi[44] involved pleas on two counts of trafficking in a dangerous drug (periods of nine months and eight days respectively) and other drug and summary offences.  The second count was committed whilst on bail.  Further, the offender was the “clear leader” of the syndicate and recruited numerous people, including couriers, runners, debt collectors and suppliers.  The value of the drugs trafficked exceeded $190,000 and there was evidence of threatened violence.  The offender had a relevant criminal history, including a conviction for malicious wounding in company and a previous suspended sentence.  A sentence of 10 years imprisonment was imposed in respect of the first trafficking offence, and a seven year concurrent sentence on the second trafficking offence.  The Court of Appeal rejected the application that the sentence was manifestly excessive given the “substantial trafficking”, a sentence of no less than 10 years was warranted.
    3. (c)
      R v Delander[45] the sentence imposed was nine years imprisonment for trafficking in methylamphetamine and MDMA over an eight month period.  There were also concurrent lesser terms for other offences including weapons offences.  The offender was a “wholesale dealer”, including distribution of methylamphetamine in ounce amounts sold for $5,000 per ounce of tablets and drugs were supplied on 31 occasions to at least 18 customers.  The operation was a “sophisticated” one, involving the leasing of a large shed to store drugs, cash and weapons.  The offender had a minor criminal history.  Mitigating factors included a timely plea, significant cooperation with police and a strong employment history.  The application for leave to appeal concerned the fixing of the parole eligibility date not adequately reflecting the mitigating factors.  The application was refused as the cooperation was reflected in the nine year head sentence with the mandatory consequences of a serious violent offence declaration not arising.
    4. (d)
      R v Corbett[46] involved pleas for various drug offences including trafficking in methylamphetamine.  The sentence imposed for the trafficking was nine years imprisonment with no order as to parole.  The trafficking was for a two month period and the offender had a relevant criminal history.  Further, he was a regular supplier and occasionally dealt in one ounce amounts.  He received cash sums including $20,000 and was found in possession of 287.46 grams of methylamphetamine, 209.914 grams pure.  While he had a significant addiction, the offender trafficked for profit as well as personal use.  There were some indicators of remorse and cooperation.  The offender had a three month old daughter and was in a supportive relationship.
    5. (e)
      R v Feakes[47] concerned a sentence of 10 years imprisonment imposed on a plea for trafficking in schedule 1 and two schedule 2 drugs for a period a little over seven months.  The offending involved supply of significant quantities of cocaine (32.052 grams), MDMA (329.889 grams) and MDEA (109.744 grams).  Further, the minimum benefit was $56,000.  The offender had made significant efforts to rehabilitate, had a dysfunctional upbringing and had not reoffended for three years while on bail.  McMurdo P concluded that the 10 year sentence was not manifestly excessive and adequately reflected matters of mitigation including the guilty plea.  Relevantly, the offender was a mature offender who trafficked a significant quantity of schedule 1 drugs.
    6. (f)
      R v McGinniss[48] concerned a sentence of 10 years imprisonment with an automatic serious violent offence declaration made (with parole eligibility at 80 per cent) in respect of a plea to trafficking in methylamphetamine over a seven month period.  He was also convicted of possession of a dangerous drug attracting a concurrent term of eight years imprisonment.  The application for leave to appeal on the basis of the sentence being manifestly excessive was refused.  The offending involved supply of drugs to regular customers using codes and supply of one customer with at least 115 grams of methylamphetamine for at least $54,000.  The offender also supplied “multiple ounces” of methylamphetamine to regular customers.  He was also employed by a syndicate, being paid $1,000 per week to assist in distribution and transporting large amounts of drugs.  He was also in possession of 404.325 grams (72 per cent purity) pure crystallised methylamphetamine, with a value of over $200,000 and unsourced income of $27,290 for part of the period.  The offender was 26 years old at the time of offending, had no relevant criminal history and had taken steps to rehabilitate himself.
    7. (g)
      R v Wainscott[49] involved a sentence of nine years imprisonment for trafficking in methylamphetamine for a period of about eight months at a wholesale level, for a profit of over $85,000.  The case included consideration of the inordinate delay in progressing the matter.  The application for leave to appeal was refused.  The Court of Appeal observed that having regard to the serious aspects of the offending a sentence of 10 years, even allowing for the plea, would have been appropriate.
  6. [76]
    In R v Lowien, Philippides JA observed that:

[46] The trafficking enterprise, in which [the offender], a man of mature years, played a key role was of a large scale and conducted at a wholesale level over a prolonged period, bringing a great deal of dangerous drugs into the … area.  That the whole of that offending occurred whilst on bail is an aggravating feature.  Even allowing for the amelioration required to take into account the pleas, evident remorse and other matters of mitigation in the applicant’s favour, the offending warranted condign punishment.”

  1. [77]
    In dismissing the appeal and concluding that no different sentence should be imposed, her Honour noted:
    1. (a)
      The comparative cases did not demonstrate that a sentence of less than 10 years was required to reflect a just sentence in all of the circumstances of the case.
    2. (b)
      Further, the comparative cases supported the conclusion that a sentence of 10 years imprisonment with the consequential serious violence declaration was an appropriate and just sentence.
  2. [78]
    The case of R v Walker[50] was also referred to for comparison purposes.  Fraser JA, with whom Gotterson JA and Crow J agreed, dismissed the application for leave to appeal.  A sentence of six and a half years for trafficking in a dangerous drug was imposed after trial.  The offender was also convicted and not further punished in respect of other offending including possession of methylamphetamine in excess of two grams.  The application for leave to appeal was that the sentence was manifestly excessive taking into account the offender’s mental health issues and her lack of a relevant criminal history compared to comparable cases.
  3. [79]
    The trafficking period was about eight and a half months during which the offender frequently brought from her supplier and sold at street level methylamphetamine and cannabis.  Coded messages were used, the offender was commercially motivated and she supplied regularly to 15 retail customers.  The offender used drugs several times a week but it was not submitted that drug addiction explained the offending.  Further, whilst on bail the offender continued the trafficking for five months.
  4. [80]
    The sentencing judge took into account the offender’s mental health issues and a dysfunctional relationship with her husband.  However, the trial judge did not find that any mental health issue contributed to the offending.
  5. [81]
    The offender was 43 to 44 years of age at the time of the offending and 47 at the time of sentence.  Her criminal history was not significant and started just before this offending.  There was also no remorse shown.
  6. [82]
    The applicant here points to the analysis of the comparative authorities of R v Arnott,[51] R v Peat[52] and R v Saggers[53] by Fraser JA as supporting a starting point for offending in the “shoulder area” at less than 10 years.  It is submitted that these cases, while for shorter period, are for the same type of offending as in this case.
  7. [83]
    Considering these authorities in turn:
    1. (a)
      R v Arnott was a sentence of seven years imprisonment with parole eligibility after 25 months.  The offending involved at least 28 customers, both drug users and sellers.  The offender sometimes assisted other suppliers and had other people working for her on occasions.  The parole eligibility date was set taking into account the plea, the prospect of deportation and a period of pre-sentence custody.  The seven year sentence was shorter than in comparable cases but was explained by reference to the relationship between the offender’s addiction and her offending.  But for that and the plea of guilty, the sentence may have been “markedly more severe”.
    2. (b)
      R v Peat involved a sentence of six years with parole eligibility after about 15 months in respect of a count of trafficking.  The offender had her own trafficking business, sometimes helped the supplier with his business, also bought drugs from different supplier and supplied both wholesale and street level amounts.  There was a degree of sophistication about the business.  The trafficking period was about four and a half months and the profits appeared modest.  The plea of guilty was taken into account, together with a prejudicial early life, various serious trauma in her adult life and mental health issues.  The offender also had a significant physical disease.  She showed signs of rehabilitation and was not using drugs.  Another factor was that serving a sentence of imprisonment would be very difficult.
    3. (c)
      In R v Saggers the Court of Appeal refused an application for leave to appeal against a sentence of five years imprisonment, suspended after 12 months for an operational period of five years.  The offender pleaded guilty to one count of trafficking in methylamphetamine and one count of possession of methylamphetamine.  Taking into account pre-sentence custody, the sentence was five years and eight months suspended after 20 months.  The offender had multiple suppliers and 25 customers.  The business was at a distribution level between wholesaler and a street level dealer.  The period was three and a half months and there was no evidence of unexplained income or accumulated assets.  Mitigating features included a guilty plea (although delayed) and progress in rehabilitation, mainly during the period of delay.  The offender was 25 years of age.
  8. [84]
    In R v Walker, given the intensity and duration of the trafficking and the continuation of the trafficking after she was found in possession of a substantial quantity of methylamphetamine and there was no mitigation for remorse or an early plea, the sentence was not manifestly excessive.
  9. [85]
    The decision of R v KAX[54] is also relevant.  Mullins JA, with whom Philippides JA and Brown J agreed, granted leave to appeal against the sentence and allowed the appeal.  The sentence of 10 years and 10 months for count 1 was set aside and a sentence of nine years and 10 months was imposed on the re-exercise of the discretion.
  10. [86]
    The offender had pleaded guilty to various offences including trafficking in a dangerous drug (count 1).  The trafficking period was five months.  The offender was 31 years old at the time of offending.  He had a criminal history with numerous entries.  A report from a psychologist outlines the offender being the subject of a sexual assault while in juvenile detention.  As a result, the offender turned to illicit drugs to self-medicate and reported being heroin dependent since he was 16 years old but did have a drug free period of approximately four years.
  11. [87]
    The offender had three children and then experienced further trauma when a subsequent partner suicided.  The offender relapsed into heroin use.
  12. [88]
    A report from a psychiatrist also outlines the offender being diagnosed with major depressive disorder, fluctuating generalised anxiety disorder and a substance use disorder.
  13. [89]
    The offending was the subject of a police investigation.  The offender supplied methylamphetamine, cannabis and MDMA.  The methylamphetamine was supplied at wholesale level to other dealers.  It was sold as multiple ounces and occasionally in street level amounts of 3.5 grams.  Cannabis was sold exclusively in wholesale quantities (pounds) and he purchased wholesale quantities of MDMA (100 pills).  There was a customer base in both Brisbane and Mackay.
  14. [90]
    The offender was near the top of the syndicate.  He was a wholesale dealer of very large amounts, dealing with large sums of money and attempting to arrange large transactions.  There were threats of violence but no evidence of any actual violence.  There was also strong commercial motivation, as well as his own addiction.
  15. [91]
    The mitigating factors were the plea of guilty, his diagnosed psychiatric conditions and the long-standing psychiatric conditions leading to drug addiction following the sexual assault in juvenile detention.
  16. [92]
    Mullins JA found that the sentencing judge had not moderated the sentence for the mitigating circumstances of the psychiatric condition and the relationship with his drug addiction.  Accordingly, the sentence was set aside and the offender re-sentenced.
  17. [93]
    In re-exercising the discretion, Mullins JA referred to the comparative authorities of R v Feakes,[55] R v Nunn,[56] R v Safi,[57] and R v Tran.[58]  Her Honour concluded that the subject offending was more serious than Feakes, possibly not as serious as Safi, distinguishable from Tran due to the criminal history and at least as serious as Nunn.
  18. [94]
    Further, Mullins JA commented at [41]:

“Even though there is a tendency for sentences for trafficking that warrant the imposition of a serious violent offence declaration to cluster around 10 years, these authorities did support a starting point for the applicant’s sentence for the trafficking that was above 10 years, as recognised by the sentencing judge.”

  1. [95]
    Ultimately, the sentence in R v KAX was reduced by a year to reflect the circumstances of the offender’s psychiatric conditions.  This brought the notional sentence below 10 years and then a further deduction of two months for the non-declarable time in custody, resulting in the serious violent offence declaration not automatically applying.
  2. [96]
    Considering these comparative authorities it is impossible, and not appropriate, to grade the criminality involved by, in effect, ranking the aggravating and mitigating factors.  The circumstances of the applicant’s offending establish that he was a mature offender, who trafficked in three drugs, two of which were schedule 1 drugs, for a period of 1 year.  It can be described as high level street to wholesale trafficking, indicating that the trafficking was in a substantial quantity of dangerous drugs.
  3. [97]
    The applicant’s trafficking business was sophisticated, involving the use of a courier and storage units.  Measures such as code and Blackberries were employed to avoid detection.  The applicant also was a close associate with Paul Vella and Stephen Phillips, and was trusted with information and/or had personal knowledge of their operations.  The applicant’s offending only ceased when police closed the operation upon the applicant’s discovery of a surveillance device.
  4. [98]
    These authorities do support a starting point for a sentence in respect of the applicant’s trafficking offending in the range of 10 years or above if the matter had proceeded to trial.  This starting position was recognised by the sentencing judge and could not be said to be in error.
  5. [99]
    Further, the sentencing judge applied the mitigating factors to the “top” of the sentence and reduced the sentence to nine years.  This properly reflected the mitigating features.
  6. [100]
    The no recommendation as to parole was consistent with the approach of the mitigating features operating to reduce the “top” of the sentence and to further alter the parole eligibility date would provide a “double benefit” to the applicant.  The applicant does get the benefit in the reduction of the sentence to below 10 years and the consequence that a serious violent offence declaration is not mandatory.  The further consequence is that the parole eligibility is not mandated at 80 per cent.  By making no recommendation as to parole, the statute governs when the applicant becomes eligible for parole.
  7. [101]
    Having regard to the relevant sentencing factors and the comparable authorities there has been no misapplication of principle.  The sentence was not outside a proper sentencing range such that it could be described as unreasonable or plainly unjust.  The sentence imposed was not so different from sentences imposed in other matters so as to be manifestly excessive.
  8. [102]
    Accordingly, leave to appeal should be refused.

Footnotes

[1] [2014] HCA 2; (2014) 253 CLR 58 (Barbaro).

[2] [2008] QCA 290.

[3] Similarly see R v Frame [2009] QCA 9 at [6].

[4] [2014] HCA 2 [7]; (2014) 253 CLR 58 at 66.

[5] [2014] HCA 2 [38]; (2014) 253 CLR 58 at 73.

[6] The practice of defence counsel did not change, and it need not be considered here whether that accorded with the judgment.

[7] [2015] HCA 46 [56]; (2015) 258 CLR 482 at 506 (FrenchCJ, Kiefel, Bell, Nettle and GordonJJ).

[8] [1936] HCA 40; House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).

[9] [2018] QCA 83 at [23].

[10] Respondent’s outline of argument, paragraph 38.

[11] See Green v The Queen [2011] HCA 49 [1]; (2011) 244 CLR 462 at 465-466.

[12] In the applicant’s reply submissions it is submitted that a sentence of nine years with parole eligibility after one third would be towards the upper end of the available sentencing “range” in a case such as this and that a sentence of eight years would appropriately mark the applicant’s criminality.

[13] Exhibit 2 ARB 31-36.

[14] The sentencing judge adopted the term minor:  see line 5, ARB 25.

[15] Relevantly, the offending occurred three months prior to the commencement of the trafficking period and he appeared in Court the day after the commencement of the trafficking period.

[16] [2020] QCA 186.

[17] [2020] QCA 11.

[18] [2017] QCA 271.

[19] [2013] QCA 335.

[20] Apart from a minor driving offence.

[21] (1936) 55 CLR 499, 504-5.

[22] House v The King (1936) 55 CLR 499, 505.

[23] (2015) 256 CLR 550; [2015] HCA 39 at [28] (footnote omitted) per French CJ, Keane and Nettle JJ.

[24] [2018] QCA 189 at [240].

[25] This is recognised in the applicant’s submissions at footnote 2.

[26] [2020] QCA 218.

[27] [2020] QCA 186.

[28] [2020] QCA 11.

[29] See also statement of Ryan J in sentencing remarks in R v Cross; Cross and Neale (1 November 2021, Indictment Nos 1622 of 2020 and 1406 of 2021).

[30] For example, sentences of nine or nine and a half years, with varying parole eligibility orders.  See discussion of cases in R v KAX and R v Lowien.  The applicant also refers to R v Berry [2017] QCA 271 and R v Boyd [2013] QCA 335, for sentences under 10 years and parole eligibility fixed at less than a half.

[31] [2015] QCA 24.

[32] [2019] QCA 199.

[33] Applicant’s reply submissions at [7].  See R v Church [2015] QCA 24 at [23].

[34] Philippides JA with whom Fraser JA agreed.  Morrison JA dissented and commented that seven years might be the upper end of the range for this offending.

[35] Unreported, Holmes CJ, Indictment No 941 of 2018, 25 July 2018.

[36] Arguably five ounces was supplied on one occasion.  One customer was intercepted with three ounces containing methylamphetamine.  Further, the applicant was supplying one customer regularly for approximately six months and on an occasion which was intercepted the customer received an ounce of substance containing cocaine.

[37] See for example, R v Feakes [2009] QCA 376, discussed in R v Lowien at [39].

[38] [2018] QCA 341.

[39] The offender did have, in contrast to here, a long criminal history.  Further, the offender was found in possession of a large amount of pure methylamphetamine and it was an “intense” operation.

[40] [2020] QCA 11.

[41] At page 4.

[42] At page 4.

[43] [2018] QCA 22.

[44] [2015] QCA 13.

[45] [2019] QCA 69.

[46] [2018] QCA 341.

[47] [2009] QCA 376.

[48] [2015] QCA 34.

[49] [2020] QCA 11.

[50] [2019] QCA 199.

[51] Unreported, Indictment No 941 of 2018, 25 July 2018.

[52] Unreported Indictment No 1631 of 2017, 27 July 2018.

[53] [2016] QCA 344.

[54] [2020] QCA 218.

[55] [2009] QCA 376.

[56] [2019] QCA 100.

[57] [2015] QCA 13.

[58] [2020] QCA 81.

Close

Editorial Notes

  • Published Case Name:

    R v Volkov

  • Shortened Case Name:

    R v Volkov

  • MNC:

    [2022] QCA 57

  • Court:

    QCA

  • Judge(s):

    Fraser JA, McMurdo JA, Williams J

  • Date:

    22 Apr 2022

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary JudgmentSC684/21 (No citation)24 Jun 2021Sentenced to 9y with default parole eligibility for 1 count of drug trafficking; offending involved sophisticated, high street to wholesale trafficking in sch 1 and 1A drugs over 1y period not voluntarily ceased; mature offender, guilty plea, remorse, some criminal history, subsequent good character, delay, rehabilitative efforts, related (not causative) mental health issues; prospective 10+y term after trial moderated; defence counsel conceded appropriateness of sentence imposed (Martin J).
Appeal Determined (QCA)[2022] QCA 5722 Apr 2022Application for leave to appeal against sentence on ground of manifest excess refused; authorities supported starting point of 10+y had offender gone to trial, which starting point was appropriately moderated for mitigating factors; defence counsel’s concession at first instance irrelevant to question of manifest excess on appeal (in obiter, a prosecutor’s submission as to appropriate sentence might matter in an Attorney’s appeal): Fraser JA, McMurdo JA, Williams J.

Appeal Status

Appeal Determined (QCA)

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