R v MRB [No 2][2024] QCA 65

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  This is an application for leave to appeal against sentence.  The sentencing judge presided at the trial, at the end of which the applicant was found guilty by a jury of importing a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Criminal Code Act (Cth).
2. [2]
   The applicant was a tertiary-educated, professional engineer with no criminal convictions.  He had a friend who was apparently associated with a large crime syndicate and it appears that in that way he was recruited to assist in an importation of drug, which the syndicate planned.  He used his own money (about $5,000) to buy a generator in South Africa and organise its freight, with a legitimate freight company, to his employer’s premises in Brisbane (about $3,000).  The generator contained 98 kilograms of cocaine.  When it arrived at his employer’s premises, the applicant borrowed a forklift from the business next door and caused it to be loaded into a truck driven by another man whom he knew was working for the syndicate.  That man, who I will call A, drove the truck to Sydney and, along with B, unpacked the cocaine from the generator under the supervision of C.
3. [3]
   Notwithstanding the applicant was not contended to have been involved in the planning or high level arrangements for the importation, the sentencing judge saw his criminality as higher than that of A, B and C.  His role was more sophisticated.  Because he was a professional person, he had the money, experience and ability to organise the importation of the generator.  It was a responsible and trusted role and his involvement lasted nearly one month, as opposed to the involvement of A, B and C, whose involvement was limited to the work they did transporting and unpacking on one or two days.  The sentencing judge found that the fact that the applicant had no criminal convictions and had a legitimate engineering firm work address to which delivery could be made, was something which made him particularly valuable to the syndicate.
4. [4]
   The judge found that the applicant had a reckless state of mind as to the importation for about 18 days, from the time he began engaging in email correspondence to buy the generator.  Thereafter, for about six days, the sentencing judge found that the applicant had knowledge that the importation was to be of a border controlled drug.
5. [5]
   The judge below sentenced on the basis that the amount of drug imported was very significant and that that added to the criminality of the applicant’s offending.  Even though he accepted that the applicant did not know precisely how much drug was to be imported, the sentencing judge sentenced him on the basis that he knew a significant amount was to be imported.  The applicant did not use drugs.  He was a tertiary-educated, professional man and the sentencing judge found he was motivated by greed.  There was no evidence as to what money was due to the applicant for his role in the importation, but the sentencing judge proceeded on the basis that the agreed amount would have been substantial so as to entice the applicant to take the risk which he took in co-operating with the syndicate.
6. [6]
   The applicant used encrypted cipher devices to communicate with the syndicate at least for the last six days of the operation.  He made a false invoice to make it appear that the generator had been sold by him to a fictitious person, whose name appeared on the invoice.  The applicant was interviewed by Australian Federal Police soon after the importation and he told them lies.  He said he had planned to start a plant hire business and imported the generator as stock for that business.  However, he had been approached by the person whose name appeared on the false invoice.  That person had offered him a considerable amount of money for the generator so, rather than use it in his planned business, he simply on-sold it.  He told police he had nothing to hide and was shocked that police wanted to speak to him about the importation.
7. [7]
   The applicant gave evidence at trial that he and one of his friends discussed his idea of starting a plant hire business.  His friend then told him of an opportunity to import a stolen generator from South Africa.  The applicant decided to do this, paying around $5,000 for the generator when it was expected it could be sold from between $45,000 and $60,000.  The profit would be shared amongst a group of men, all of whom would share in the profits; the applicant expected to receive a profit of around $5,000.  He used an encrypted device and made a false invoice to cover the importation of the generator because it was stolen.  He said it never occurred to him that he was facilitating the importation of a border controlled drug.  The main question at the trial was the applicant’s state of mind, namely whether he did in fact think he was simply participating in the importation of a stolen generator, or whether he was at least reckless to the importation of a large amount of border controlled drug.  The jury, by its verdict, must have concluded that the evidence he gave at his trial was false.
8. [8]
   The sentencing judge took into account that the trial was much shorter because the applicant made extensive admissions as to matters other than his knowledge and state of mind.  The sentencing judge acknowledged that the applicant was entitled to credit for that, as it saved public money.  Nonetheless, having regard to the motivation for the offending, and the applicant’s having lied both to police and to the trial court, he concluded that the applicant did not show remorse for his offending.  The sentencing judge had regard to R v Nguyen; R v Pham;^[1] Nguyen v R; Phommalysack v R^[2] and R v Antic, Mayers and Rivkin^[3] as comparable authorities.  He imposed a period of 16 years imprisonment and set a non-parole period at the 60 per cent mark, namely nine years and eight months.

Proposed Arguments on Appeal

9. [9]
   It was not contended that the sentence was manifestly excessive.
10. [10]
    It was contended that the judge made two specific errors in sentencing the applicant: (a) failure to take into account delay between offending and sentencing, and (b) making a wrong assumption of fact as to the basis upon which the co-accused C was sentenced.  It was said that in accordance with Kentwell v The Queen^[4] this Court was obliged to re-sentence unless we would independently have sentenced the applicant as the sentencing judge did.  I will deal with each of the asserted errors in turn.

Delay

11. [11]
    Police discovered the importation soon after it occurred.  The generator arrived in Brisbane on 10 October 2018 and the applicant was interviewed on 24 October 2018; this was the occasion when he lied to police.  There was evidence at trial that there was delay in accessing the material which had been encrypted by the applicant and those he worked with.  This was accessed on 15 September 2020.  The material which until then had been previously encrypted was relied upon at trial as showing that the version the applicant initially gave to police, and indeed, his evidence at trial, was false.  It was certainly important evidence against him.  There was a 14 month delay after the encrypted material was accessed before the applicant was charged, and that was not explained on the material at trial or on the sentence hearing.  An indictment was presented a year after that: 11 November 2022.  A trial began on 2 May 2023; it miscarried.  The applicant came on again for trial on 8 September 2023.
12. [12]
    In Scook v The Queen Buss JA set out some principles which are relevant here.

“First, delay is not, of itself, a mitigating factor.

Secondly, delay will not ordinarily be a mitigating factor if it has been caused by difficulties in detecting, investigating or proving the offences committed by the offender, and the period of the delay is reasonable in the circumstances.

Thirdly, delay will not ordinarily be a mitigating factor if it is caused by the offender’s obstruction or lack of co-operation with the State, prosecuting authorities or investigatory bodies, but the offender’s reliance on his or her legal rights is not obstruction or lack of co-operation for this purpose.

…”^[5]

13. [13]
    The first thing to say about this proposed ground of appeal is that delay was not raised before the sentencing judge as an independent factor.  Had it been, there might well have been an explanation by the Crown as to the reasons for delay between accessing the encrypted material and the applicant being charged.  As it stands, I find it very difficult to see that the applicant can complain about delay between the offending and the decrypting of communications between him and his criminal associates.  Delay to that point appears to be connected to both his lies to police, and the precautions the applicant and his criminal associates took to avoid detection.  There is then 14 months’ delay before a charge was preferred against the applicant which is not explained on the material, but in a context where the Crown was not made aware of a need to explain it.  There is no relevant delay thereafter.  The applicant thus complains about a relatively short period of delay^[6] in circumstances where his legal representatives did not make that an issue before the sentencing judge.
14. [14]
    In R v L, Ex parte Attorney-General, the Full Court set out the following principles in relation to delay.

“It is difficult to see why lapse of time between commission of an offence and sentence should be a mitigating factor in sentence unless that delay has resulted in some unfairness to the offender. There are two obvious cases in which that will be so and in which, consequently, it has been said that that unfairness should mitigate the sentence which should otherwise be imposed.

The first is where there is delay between the date of apprehension of the offender, or first indication to him by some person in authority that he is likely to be prosecuted, and the date of sentence, in consequence of which the offender may have had his liberty curtailed or his reputation called in question or, at least, left in a state of uncertainty caused by a failure to prosecute his case more quickly. …

The second is where the time between commission of the offence and sentence is sufficient to enable the court to see that the offender has become rehabilitated or that the rehabilitation process has made good progress.”^[7]

15. [15]
    Here the applicant moved to Sydney soon after this offending, and lived a blameless life in the five years which intervened between offending and trial.  During that time he married, had children, and worked in responsible professional employment.  The applicant’s written submissions were that, “The sentencing judge’s omission to take the delay and rehabilitation of the applicant into account was an error of principle in the exercise of the sentencing discretion”.^[8]  While the judge did not mention the word “delay”, he did say:

“Nonetheless, I take into account your prior good character and absence of criminal history until now. I also take into account that whilst you had some limited dealings with your associate after the drugs were intercepted, that was not a friendly association. You told lies out of fear, and you distanced yourself by taking up responsible employment in another city. You had been in employment. I should mention that you have a partner who supports you in Court. I take into account that there has been no criminal activity, and you have complied with your bail conditions.” – tt 1-6-7 of the sentencing remarks.

16. [16]
    The sentencing judge came back to these matters when fixing a relatively short non-parole period.  He said:

“Having regard to matters in mitigation, including your prior good character but, more importantly, your self-rehabilitation since these events, I think that an appropriate non-parole period should be at approximately the 60 per cent level. I might have imposed a non-parole period in the order of two thirds. However, I consider that an appropriate non-parole period is one of nine years and eight months.” – tt 1-12-13.

17. [17]
    In the circumstances where the sentence followed a trial over which the sentencing judge presided, the judge can be taken to have been cognisant of delay caused by the applicant’s lies to police and the syndicate’s use of encrypted devices.  He was also aware of the mis-trial in May 2023.  In all the circumstances of this case, I cannot see: (a) that there was any lengthy delay not attributable to the applicant, and (b) that this delay itself was relevant, as opposed to the applicant’s behaviour awaiting trial.  The judge took the latter consideration into account in the applicant’s favour.  I cannot see that there is anything in this complaint which justifies the grant of leave to appeal.

Asserted Factual Error

18. [18]
    In sentencing the applicant the judge below had regard to the sentences of A, B and C.  He had the sentencing remarks of those three co-offenders.  He regarded all these three as having less criminality than the applicant for reasons already explained.  He regarded C as the most involved of the three, and therefore paid most attention to his sentence, which was put forward for his consideration under principles of parity.
19. [19]
    C was sentenced in New South Wales and the starting point (reduced for various specified factors) for his sentencing was 13 years.  Part of C’s sentence took place in closed court and the judge below made a factual assumption that this revealed that C had co-operated in a way which required a closed court hearing.  The sentencing judge was not provided with a transcript of what was said in the closed court hearing; he was provided with transcript of what was said by way of sentencing remarks in open court.  The remarks of the New South Wales judge in open court are ambiguous as to whether or not there was co-operation.  That is usually the case with such sentencing remarks, for if co-operation is revealed in open court, there is little point in having a closed court hearing.
20. [20]
    We have this same material.  We gave leave for a further affidavit to be read on the appeal.  The deponent swore that C “was not afforded a quantified discount on sentence for anything other than the utilitarian value of his plea of guilty to both Federal and State offences”.  This Court took issue with the scant material in this affidavit, saying that the words of the deponent appeared to have been chosen carefully, and that the affidavit did not distinctly swear to the fact that no discount was given to C for co-operation revealed in closed court.  A brief adjournment was allowed to the applicant to see if the evidentiary position could be improved, but apparently it could not.
21. [21]
    On this evidentiary state, I am not prepared to find that the sentencing judge did make an error.  Even if he did, and the 13 year starting point used in the sentencing hearing of C reflected no allowance for co-operation, my view is that the involvement of the applicant in the criminal enterprise was significantly more than that of C.  In those circumstances, I cannot see that the principles of parity demanded that the sentencing judge should have imposed a lower sentence of imprisonment on the applicant.^[9]  In fact, it seems to me that the sentence imposed below was well within range when regard is had to the comparable cases referred to by the sentencing judge.  To adapt the test in Kentwell (above) to allow for the fact that this is an application for leave to appeal, even if I were convinced that the sentencing judge had made the factual error alleged, I would not impose a lesser sentence if this Court were to resentence.  In those circumstances, I cannot see that this application for leave to appeal against sentence can succeed.  I would dismiss the application.
22. [22]
    BODDICE JA:  My conclusion in the appeal against conviction renders it unnecessary to determine the application for leave to appeal sentence.
23. [23]
    Had it been necessary, I would have refused leave, for the reasons given by Dalton JA.
24. [24]
    BURNS J:  I agree that the application for leave to appeal against sentence should be refused for the reasons expressed by Dalton JA.