R v Crowden[2023] QCA 187

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  The applicant seeks leave to appeal against sentence.  On 17 May 2020, following his pleas of guilty, the applicant was sentenced in relation to 14 counts contained in three indictments.  On indictment 988/21, he was sentenced on one count of assault occasioning bodily harm in company, one count of assault occasioning bodily harm while armed, two counts of burglary and stealing, one count of extortion, one count of assault occasioning bodily harm while armed in company, and one count of stealing.  On indictment 492/22, he was sentenced on one count of participating in a criminal organisation and recruiting persons to become participants in the organisation, one count of assault occasioning bodily harm while armed in company, one count of receiving tainted property with a circumstance of aggravation, one count of threatening violence and one count of assault occasioning bodily harm in company.  On indictment 483/22, he was sentenced on one count of receiving property obtained from trafficking and one count of trafficking in dangerous drugs.
2. [2]
   The learned sentencing judge structured the sentence by imposing a global head sentence of six years imprisonment on each of the two most serious offences of violence (namely the counts of assault occasioning bodily harm, while armed, in company – Count 2 of indictment 492/22 and Count 5 of indictment 988/21) with varying sentences of imprisonment for the balance of the counts of 492/22 and the counts on indictment 988/21 to be served concurrently with the global head sentences of six years.  The concurrent head sentences of six years therefore encompassed all of the applicant’s criminal conduct captured by the counts in indictment 492/22 and 988/21.
3. [3]
   As to indictment 483/22, his Honour imposed a sentence of five years for Count 2 which was the trafficking count, but for Count 1 the applicant was convicted and not further punished.  His Honour ordered that the sentences imposed in respect of the counts on indictments 492/22 and 988/21, which were reflected in the global head sentences of six years, be served cumulatively on the sentence of imprisonment imposed in respect of Count 2 (the trafficking count) on indictment 483/22.
4. [4]
   His Honour also declared that the applicant had been convicted of serious violent offences, being the two counts of assault occasioning bodily harm, while armed, in company (Count 2 on indictment 483/22 and Count 5 on indictment 988/21) and the trafficking count (Count 2 on indictment 492/22).  His Honour further declared that 1,598 days which the applicant had served in custody, being 309 days served between 12 July 2021 and 16 May 2022 and 1,289 days served between 14 May 2015 and 22 November 2018, as time served in respect of those sentences of imprisonment.
5. [5]
   The total cumulative sentence was therefore 11 years.  The effect of the declaration that the applicant had been convicted of serious violent offences is that he must serve 80 per cent of the sentence of 11 years before parole eligibility arises.^[1]  Even without the declaration, the applicant is required to serve 80 per cent of the cumulative sentence of 11 years because of the effect of s 185 of the Corrective Services Act 2006 (Qld).
6. [6]
   The applicant does not seek to challenge the sentences imposed in relation to indictments 492/22 and 988/21.  This reflects the concession made by defence counsel before the sentencing judge that a sentence of no less than six years was warranted for the offences of violence which included the two serious examples of assault occasioning bodily harm while armed in company.
7. [7]
   If granted leave, the sole ground of appeal is that the sentence imposed in relation to the trafficking count on indictment 483/22 of five years was manifestly excessive.  For the reasons that follow, the sentence imposed for the trafficking count is not manifestly excessive and the application for leave to appeal should be refused.

The agreed statement of facts

8. [8]
   As there is no challenge to the sentences imposed in relation to the counts on indictments 492/22 and 988/21, the facts of this offending may be briefly stated.
9. [9]
   In relation to indictment 492/22, the applicant, together with Nathan Cullen, in mid-2014 commenced forming a criminal organisation involving a number of persons.  The applicant tasked Cullen and another with recruiting 15 members.  The group was in full operation by October 2014.  Two of the recruited members were Shannon David Arnold and Clay Andrew Knight.  They were bouncers at a nightclub in Surfers Paradise and had connections to other bouncers.  Other members joined the group as a result of the recruitment activities.  The applicant was the head of the criminal organisation.  Each member was required to pay regular money into the group and to attend weekly meetings.  Each member was also required to have a Harley Davidson motorbike and earn money for the club.  Count 1 reflected the applicant’s participation in, and recruitment of others into, the criminal organisation.
10. [10]
    The most serious count on this indictment was the assault of the complainant, Paul Holden, resulting in bodily harm.  The applicant and Knight had employment at a trucking company operated by Wayne Smith.  Smith sought the applicant’s help to “sort out” the complainant.  Smith had provided funds for another man’s business venture with the complainant, but the venture had not developed as anticipated.  The applicant arranged for Arnold, Knight, Dawson and Bradley to accompany him and Smith to the complainant’s business premises.  He told them that he was going to bash the complainant and that they were then to join in.  On 11 December 2014, they arrived at the business.  The applicant approached the complainant in a seemingly friendly way before knocking him down with one punch.  He then proceeded to punch the complainant repeatedly in the head.  The other four joined in, using their fists and feet on the complainant.  The applicant picked up a one metre length of wood, told the others to get out of the way, and struck the complainant two to three times in the head with it.
11. [11]
    The complainant spent five days in hospital and although his injuries included a skull fracture and a partially amputated finger, all the injuries only amounted to bodily harm.  It was this conduct that attracted the head sentence of six years.
12. [12]
    Count 4 on this indictment involved the applicant threatening violence to other members of the group.  The applicant had received a text message from a member of the group, Brandy, advising that he had to leave the group due to family reasons.  At a meeting with the applicant and six other members, the applicant loaded a handgun with a magazine and cocked the slide.  These actions were witnessed by the other members.  The applicant then placed the loaded handgun on a table with the gun barrel pointed at the members.  The applicant said “if anyone knows where [Brandy] has gone, do speak up.  If we find out anyone is lying, they will be receiving a bullet.”  None of the members replied as they were unaware of Brandy’s whereabouts.  The applicant also said “who wants to fucking leave now?”
13. [13]
    As to indictment 988/21, the most serious offending concerns the assaults occasioning bodily harm committed on Arnold.  The applicant took a disliking to Arnold after he refused to stop communicating with a female person.  Arnold also refused to take out a home loan on behalf of the applicant.  Count 1 concerns an assault on Arnold by Cullen and Knight at the direction of the applicant.  Arnold was punched numerous times to his face with a closed fist by Cullen resulting in a cut above his left eyebrow.  Arnold did not break off his contact with the female person.  Count 2 was a further assault occasioning bodily harm committed on Arnold by the applicant and other members.  The applicant told Arnold that he considered dissention as a challenge to his presidency.  The applicant punched Arnold in the right ear approximately three times and kneed him in the ribs.  The applicant also broke a white plastic chair by slamming it into Arnold’s ribs.  After assaulting Arnold, the applicant told him “Half your pill business is now mine, your bike’s now mine.  I am taking your bike.  You’re not fucking riding it anymore”.  Arnold suffered an injury to his right eye and pain in his cheekbone, ribs and the back of his head.
14. [14]
    Count 3 on this indictment relates to Cullen and Dawson, at the direction of the applicant, attending at Arnold’s residence and taking Arnold’s motorbike and $10,000.00 cash from him.  Count 4 concerns the extortion of a further $1,000.00 cash from Arnold.  The most serious count on this indictment is Count 5, which was a further assault occasioning bodily harm whilst armed in company involving Arnold as the complainant.  This assault involved the applicant together with approximately seven other members.  It occurred in circumstances where Arnold had provided a statement to police about a fellow bouncer.  The assault commenced with a number of members punching and kicking Arnold approximately 50 times, resulting in him losing consciousness.  The violence however escalated with the applicant obtaining a hammer and using it to smash Arnold’s left hand two or three times.  The applicant then hit Arnold in the legs with the hammer.  As a result of this assault, Arnold suffered a number of bodily injuries, including a right ankle fracture, fractures to the second and third metacarpals of his left hand, as well as other injuries such as abrasions.  The injuries to his left hand required Arnold to undergo surgery.  It was this conduct that attracted the head sentence of six years.
15. [15]
    As to indictment 483/22, prior to joining the group, Arnold and Knight had been selling MDMA pills at a Surfers Paradise nightclub.  From October 2014, their business continued, whilst Arnold and Knight were members of the criminal organisation.  Although the applicant did not take an active role in obtaining or supplying drugs during this period, he required Arnold and Knight to account for 10 per cent of the profits from their sales by way of payment to the organisation.  This arrangement, whereby Arnold and Knight accounted for 10 per cent of their profit from the sale of MDMA pills, lasted approximately six months.  The applicant utilised some of the profits remitted to the group by Arnold and Knight for his personal use.  The applicant’s conduct of receiving property obtained by trafficking over the period of six months constituted Count 1 on this indictment.
16. [16]
    As to Count 2, the trafficking count, this was for a period of six weeks, commencing immediately after the six month period of receiving which was the subject of Count 1.  Shortly after Arnold left the group, the applicant took over the trafficking business and negotiated a better price for the pills.  He directed a member of the group, Lambert, to collect and distribute the pills to other members.  Other members were not required to sell pills, however, if they did, they were required to pay 10 per cent of all profits to the group.  Some members were pressed to sell pills.  This was outlined regularly at group meetings by the applicant.  Over the course of the trafficking period, the applicant purchased 2,000 pills for $18,000.00.  It is not known how many of these pills were ultimately distributed.  A tick sheet was seized from the applicant’s house which contained names of customers and amounts owed as well as one blue notebook which contained details of payments made by group members.

The sentencing remarks

17. [17]
    The sentencing judge described the applicant’s offending as involving an array of criminality “engaged in a systematic way for financial and other benefits”.  His Honour noted that the applicant had “recruited individuals and developed a sophisticated criminal enterprise”.  The applicant’s criminality involved drug trafficking, extortion and property offences, together with the use of violence at the applicant’s direction for non-compliance.  His Honour noted that the applicant had showed no remorse to those on whom he had arranged for violence to be inflicted by others or himself.  His Honour further noted that the applicant’s wide-ranging criminality was undertaken in furtherance of an enterprise that he had created which was aggravated “by the use of those around you that you had recruited to do your bidding like they were your disciples”.  His Honour considered that the applicant’s criminality viewed globally could not be met by a sentence of 10 years imprisonment.  He considered that the applicant’s systematic criminality was of such a nature that if he had been convicted after a trial, a sentence of at least 14 years imprisonment would have been appropriate.
18. [18]
    His Honour arrived at a global sentence of 11 years imprisonment.  This reduction from 14 to 11 years reflected the applicant’s cooperation as evidenced by his pleas of guilty.  His Honour observed:^[2]

“It would be an affront to the community, in my view, if you were to receive a sentence of less than 10 years imprisonment for what is appalling criminality.  That, I am satisfied, is to be appropriately reached, not by imposing a global sentence on the trafficking count.

There is substance in your counsel’s submission that having regard to the length of the trafficking period, it ought not to be imposed in that way.  Instead, to properly reflect the differing nature of your criminality, it will be achieved by imposing a sentence of 5 years imprisonment for the trafficking count, and a cumulative sentence of 6 years imprisonment for the offences of violence.”

19. [19]
    In imposing the sentences for Count 1 and Count 2 on indictment 483/22, his Honour stated:^[3]

“In respect of the counts on indictment 483/2022, you are sentenced as follows.  In respect of count 1, you are convicted and not further punished.  That is a particular of the trafficking count.  In respect of count 2, you are convicted and sentenced to five years imprisonment.”

Consideration

20. [20]
    The applicant submits that the sentence of five years imprisonment for the trafficking was manifestly excessive and that this Court should substitute a sentence of three and a half years imprisonment for that offence.  The applicant emphasises that the trafficking occurred over a short period of six weeks.  The Crown did not assert that the trafficking business was conducted on a wholesale basis and accepted that the quantities of MDMA pills found at various member’s houses were consistent with those members supplying the pills on a street level basis.
21. [21]
    The applicant relies on R v Blumke [2015] QCA 264 and R v Wilson [2021] QCA 115 in which sentences of four years imprisonment were not disturbed on appeal.  The applicant correctly identifies that the dismissal of the appeals in Blumke and Wilson does not assist in marking out a range for the offence of trafficking.  The applicant however submits that the cases “nevertheless do provide some support for the submission that a term of 5 years imprisonment in the present case was unjustifiably too long”.^[4]
22. [22]
    The applicant’s submission that the sentence for the trafficking count is manifestly excessive should not be accepted.  First, the difficulty with the applicant suggesting appellable error by reference to two comparatives is that, as was observed by Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584 at [58]:

“… appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases.  Intervention is warranted only where the difference is such, that in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.”

23. [23]
    To similar effect is the observation of Fraser JA in R v Goodwin; Ex parte Attorney-General (Qld) [2014] QCA 345 at [5]:

“Whether or not a sentence is manifestly inadequate or manifestly excessive is not to be decided by reference to a predetermined range of available sentences but by reference to all of the factors relevant to sentence.”

24. [24]
    Secondly, the sentencing judge’s reference to the count of receiving property obtained from trafficking as constituting a particular of the trafficking count should be understood as a reflection of his Honour’s evident intention to incorporate the offending constituting Count 1 in determining the appropriate head sentence for the trafficking count.  This construction is consistent with the applicant’s criminal conduct in relation to Count 1 as being separate and distinct to his criminal conduct in relation to Count 2.  Further, the fact that his Honour convicted but did not further punish the applicant in relation to Count 1, supports an interpretation that the applicant’s criminal conduct in relation to Count 1 was reflected in the global head sentence for Count 2.
25. [25]
    Finally, added to these considerations is the fact that although the trafficking period was relatively short and at street level, it was nonetheless trafficking conducted in the context of the applicant being the president of a criminal organisation whose members were utilised for the purposes of the trafficking business.  Senior counsel for the applicant accepted at the hearing of the application that this made the offending in relation to Count 2 more serious than the conduct of an ordinary trafficking business.^[5]

Disposition

26. [26]
    The application for leave to appeal should be refused.