R v Volkov [No 2][2024] QCA 87

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Bond JA.
2. [2]
   BOND JA:  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 Martin J sentenced him to nine years imprisonment with no recommendation as to parole.
3. [3]
   On 22 July 2021, the applicant applied for leave to appeal against his sentence on the ground that the sentence was manifestly excessive.  He argued, by his senior counsel, 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, and suggested 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.
4. [4]
   On 22 April 2022, this Court refused the application for leave to appeal.^[1]  Williams J (with whom Fraser and McMurdo JJA agreed) rejected the submission made by the applicant that the sentence was manifestly excessive.  In reaching that conclusion her Honour considered the agreed facts concerning the applicant’s offending, the various mitigating circumstances to which her attention was directed (including the applicant’s mental health issues), and sentences which had been imposed in various comparable cases.  Leave to appeal was refused on the basis that:

“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.”^[2]

5. [5]
   The decision was notable principally because McMurdo JA (with whom Fraser JA agreed) explained that a sentencing judge is not bound by a concession made on behalf of an offender as to the appropriate sentence.^[3]  Such a concession neither expands nor confines a sentencing judge’s discretion.  Regardless of such a concession, it remains 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.  Such a concession is not to be regarded as a matter of weight by this Court when it considers an application for leave to appeal against sentence.
6. [6]
   On 3 August 2023 the High Court dismissed the applicant’s application for an extension of time within which to seek special leave to appeal on the basis that none of the applicant's proposed grounds of appeal enjoyed sufficient prospects of success to warrant the grant of special leave to appeal and, accordingly, the extension sought was futile.^[4]
7. [7]
   Undeterred, a week after failing in the High Court the applicant filed an application in this Court seeking an extension of time for filing a notice seeking leave to appeal against the sentence which was imposed on 24 June 2021.
8. [8]
   A question arises as to whether this Court has jurisdiction to hear the applicant’s proposed second application for leave to appeal against sentence.
9. [9]
   In the 2013 decision of R v Upson (No 2) Fraser JA (with whom Holmes JA – as her Honour then was – and Daubney J agreed) concluded that –

“in the case of an application for leave to appeal against sentence where a previous application was refused on the merits of the proposed appeal, the mere repetition or refinement of the original grounds of appeal, the formulation of different grounds, or reliance upon new evidence, does not take the case outside the general rule that the Court lacks jurisdiction to hear the second application.”^[5]

10. [10]
    In the February 2023 decision of R v Manning this Court stated that the view expressed in Upson (No 2) was the better view but observed that the question had not been resolved definitively in the authorities.^[6]  (The latter observation was probably a reference to the different view expressed by the New South Wales Court of Criminal Appeal in Lowe v The Queen.^[7])  In Manning the case before the Court was resolved when the Court followed the 2016 decision of R v Williams^[8] by concluding that even if there was no jurisdictional bar, the second application for leave to appeal against a sentence was an abuse of process because it was an impermissible attempt to relitigate a case which the Court conclusively determined on its merits.
11. [11]
    In the May 2023 decision of Gould v R^[9], the New South Wales Court of Criminal Appeal considered Upson (No 2) and other cases in other States and concluded that notwithstanding that intermediate courts of appeal in other States had taken different positions, in the absence of any formal challenge to Lowe or an attempt to confine it to its facts, the New South Wales Court of Criminal Appeal must proceed on the basis that Lowe was correctly decided and that a previous refusal of leave to appeal on the merits would not create a jurisdictional bar preventing the Court from entertaining a further application for leave to appeal.^[10]  Importantly, Bell CJ (with whom Rothman and Garling JJ relevantly agreed) went on to discuss the discretionary considerations which would be relevant to the resolution of such an application.  For present purposes it is relevant to note that, amongst other things, Bell CJ made these observations:

    1. The policy of the law is not only to prevent re-litigation of matters already litigated but also to preclude a party from arguing in a second set of proceedings between the same parties a point that was available to have been argued in earlier proceedings but was not so argued.^[11]
    2. Cogent reasons must be provided to underwrite any exercise of discretion to extend time so as to permit a second application for leave to appeal.^[12]
    3. Such cogent reasons must be more than simply additional arguments having occurred to a party’s legal advisors to the effect that the decision under appeal is wrong.^[13]  The interests of justice do not call for or require a second hearing merely because a further review of the record after an unsuccessful hearing of one application for leave to appeal leads to the identification of further grounds.^[14]
    4. It is a serious submission to advance that leave should be granted because of incompetence of counsel on the first occasion.  But if that submission is advanced, a number of points can be made:

“First, just because a point was not taken in earlier proceedings does not mean that counsel who did not take the point in the earlier proceedings was incompetent in not doing so. There may be a host of forensic reasons why a point was not taken, even if it was arguable. To explore these as a matter of evidence may be quite problematic for the reasons explained by Gleeson CJ in Nudd. Second, “[a]s a general rule, counsel’s decisions bind the client. If it were otherwise, the adversarial system could not function”.  It was for this reason that Gleeson CJ was at pains to point out in Nudd that “[i]t is the fairness of the process that is in question; not the wisdom of counsel”.  Thus, the focus is on whether a particular feature or features of the trial or an appeal or application for leave to appeal gave rise to a miscarriage of justice. This will generally be a matter of objective determination. This is a heavy burden.”^[15]

12. [12]
    In order for this Court to be persuaded not to follow Upson (No 2) in favour of Gould on the question of jurisdiction, it would need to be persuaded that it should form the strong conviction that its earlier decision was wrong.^[16]  The applicant (who represented himself) submitted that this Court should follow Gould, but advised the Court that, not being a lawyer, he could not advance the position further.  The respondent was not in a position to argue the application of Gould on the question of jurisdiction.  Although I acknowledge the force of the High Court’s instruction that the first duty of a court is to be satisfied that it has jurisdiction^[17], in the present case the absence of proper argument suggests that the jurisdiction question should not be finally resolved if the application can be resolved in another way.  In my view the present application may be resolved in a similar way to the way in which Williams and Manning were resolved.  For reasons which follow, and in particular bearing in mind the discretionary considerations mentioned in the previous paragraph, I would conclude that even if there were no jurisdictional bar, leave to extend time would not be granted because the interests of justice would not be served by granting an extension of time to pursue the grounds of appeal which the applicant proposes to pursue.
13. [13]
    I will address each of the proposed grounds of appeal in turn.
14. [14]
    The applicant characterised his first proposed ground of appeal as “Ground A”.  He asserted that the sentence was manifestly excessive.  This was the ground already considered and rejected by this Court in the hearing of the original application for leave to appeal against sentence.  The applicant sought to develop arguments that the original Court’s conclusion was erroneous in various ways, which it is sufficient to characterise as ways which advanced arguments which either could have been advanced at the original hearing before this Court but were not, or which simply amount to re-agitation in a different way of arguments which were advanced at that hearing.  The applicant presented no cogent reasons why he should be permitted to present such arguments now, having regard to the discretionary considerations to which I have adverted.  This appears to be a case in which he has simply reviewed the record and identified other grounds which he now wishes to run (or other ways in which he wishes to run the original grounds), without providing any explanation why they were not previously run and why they should now be run.  The interests of justice are not served by permitting that course.  I would refuse his application for an extension of time insofar as it is sought to permit him to rely on this proposed ground of appeal.
15. [15]
    In his written submissions, the applicant sought leave to amend his application for leave to permit him to advance a further ground as part of Ground A, namely that the sentencing judge erred by not setting a parole eligibility date.  But if he wanted to present this ground he could have attempted to do so at the original hearing before this Court.  His application for an extension of time insofar as it is sought in relation to this proposed ground may be rejected for the same reasons as I have expressed in relation to the unamended Ground A.
16. [16]
    The applicant characterised his second proposed ground of appeal as “Ground B”.  He sought leave to adduce certain further evidence.  Consideration of this proposed ground of appeal requires consideration of the nature of the evidence and the applicant’s expressed reasons for seeking its tender.
17. [17]
    First, the applicant sought leave to tender sentencing remarks in R v Phillips (Burns J, 31 July 2018) and also a copy of the Crown’s written submissions before the sentencing judge.  The purpose of the tender was in support of a parity argument which he wished to advance before this Court.  As to this:

    1. Both documents were before the sentencing judge and would ordinarily form part of any appeal record in relation to an application for leave to appeal against sentence.  Both documents may be received now.
    2. Relevant principles concerning parity were sufficiently summarised in R v Smith.^[18]  As there expressed, the relevant principles are founded on the proposition that if other things are equal, persons who have been parties to the same offence or have committed offences arising out of the same criminal enterprise should receive the same sentence.
    3. In this case, the agreed statement of facts before the sentencing judge did not demonstrate that the applicant and Phillips should be regarded as either parties to the same offence or having committed offences arising out of the same criminal enterprise.
    4. The Crown written submissions to the sentencing judge referred to the Phillips sentencing remarks and submitted that Phillips was not a part of the applicant’s trafficking business; that Phillips was an associate of Volkov and a distributor for Vella; and that the applicant was identified and became a target of investigation because of his association with both.  In oral submissions the Crown made it clear that the sentencing remarks for Phillips had been provided by way of comparable sentences rather than on the basis that they were relevant to a parity argument.  Counsel for the applicant did not submit to the sentencing judge that the sentence imposed on Phillips was relevant on parity grounds.
    5. In his sentencing remarks, the learned sentencing judge observed of the sentence imposed on Phillips that it had differences which meant that while informative it was not compelling.  No criticism of that finding was advanced to this Court at the time of the original application for leave to appeal against sentence.  Nor was any parity argument advanced.
    6. The applicant submitted to this Court that the documents should be received in support of a parity argument based on the sentence imposed on Phillips.  But there is no basis for permitting such an argument to be agitated now.  In the first place, there is a lack of evidentiary support for a parity argument.  But, more importantly, if there had been evidentiary support for such an argument it should have been advanced on the original hearing before this Court but was not.  The applicant has not provided any cogent reasons as to why the interests of justice would be permitted by allowing the applicant to advance any such ground of appeal now.  I would refuse his application for an extension of time insofar as it is sought to permit him to rely on any such proposed ground of appeal.
18. [18]
    Second, the applicant sought leave to tender sentencing remarks in R v Vella (Martin J, 2 February 2022) apparently in support of a parity argument based on the sentence imposed on Vella.  But quite apart from the lack of evidentiary support for the proposition that his and Vella’s offending should be regarded as arising out of the same criminal enterprise, he concedes to this Court that the differences between his circumstances and those of Vella meant that it was “unhelpful as a comparative”^[19].  That concession was correct.  In any event, as already mentioned, no parity argument was advanced in the original application for leave to appeal against sentence and the interests of justice are not served by permitting the applicant to do so now.  I would refuse his application for an extension of time insofar as it is sought to permit him to rely on any such proposed ground of appeal.
19. [19]
    Third, the applicant sought leave to tender sentencing remarks in R v Rieger (Burns J, 1 March 2023) as a relevant comparative sentence in support of his submission that this Court’s rejection of his arguments concerning manifest excess were erroneous.  If this Court was prepared to permit the applicant to re-agitate his argument on manifest excess, the sentencing remarks could be referred to without the need for them to be received as evidence.  The document does not need to be received as evidence and leave to adduce evidence in this respect ought be refused.
20. [20]
    Fourth, the applicant sought leave to adduce evidence of the transcript of oral argument made before this Court on 25 February 2022 in support of the original application for leave to appeal against sentence.  That document should be received as part of the record by which the present application should be determined.
21. [21]
    Fifth, the applicant sought leave to adduce evidence contained in an affidavit by him sworn on 9 April 2024 for the purpose of explaining the difficulties which he has experienced in managing his mental illness in prison.  Such an affidavit does not contain any fact relevant to whether there was error made by the original sentencing judge, or to whether this Court should permit the re-agitation of issues concerning the merits of the application to appeal against sentence.  Unless this Court was itself exercising the sentencing discretion afresh (and it is not), the affidavit is irrelevant.  Leave to adduce evidence in this respect ought be refused.
22. [22]
    Finally, the applicant sought this Court’s leave to adduce evidence in the form of a letter from the Queensland Police Service dated 12 February 2024.  As to this:

    1. The applicant’s criminal history which had been before the sentencing judge revealed that he had been sentenced twice in the Magistrates Court for possession of dangerous drugs.  First, on 17 November 2008 in respect of possession on 11 May 2008.  He was fined and no conviction was recorded.  Second, on 6 August 2014 when the same sentence was imposed for possession of dangerous drugs on 19 May 2014.  Curiously, the criminal history also contained an entry recording that the first sentence was set aside on appeal and it was ordered that the complaint was dismissed.
    2. In 2024 the QPS letter confirmed that the record of the 2008 possession charge would be removed from his criminal history.
    3. The sentencing judge found that the applicant had a brief criminal history which he relevantly described as “Some irrelevant offences.  Two convictions for possession of drugs, which I regard as minor.”  The reference to two convictions was an error, apparently explicable by the erroneous continued recording of the 17 November 2008 sentence in the criminal history.  But the error was immaterial as the judge did not treat the criminal history as an aggravating feature.  No reference was made to it on the original application to this Court.  Indeed, on the present application the applicant accepted that his criminal history was treated as limited and largely irrelevant in his sentence hearing.  The evidence is irrelevant to any issue before this Court.  Leave to adduce evidence in this respect ought be refused.
23. [23]
    The applicant characterised his third proposed ground of appeal as “Ground C”.  It asserted that insufficient weight had been given to his psychiatric and physical illness.  In rejecting the applicant’s original application for leave to appeal against sentence, this Court considered what the applicant then had to submit as to how his mental health was relevant to his application for leave to appeal against sentence.  This ground is an attempt to reagitate something already considered as part of this Court’s original rejection of the manifest excess ground.  The applicant presented no cogent reasons why he should be permitted to present such arguments now.  I would refuse his application in relation to this proposed ground of appeal for the same reasons expressed in relation to Ground A.
24. [24]
    The applicant’s written submissions characterised a final proposed ground of appeal as “Ground D”.  In his original application the applicant was represented by senior counsel.  In his written submissions to this Court, the applicant asserted that senior counsel was not properly instructed by him.  He asserted that he was unable to hold more than a brief telephone conversation with his senior counsel and that senior counsel acted without instructions from him.  In his written submissions in reply he asserted that:

“[Senior counsel] acted solely alone without my, his client’s input. Depriving me of the opportunity to present my defence and making me lose my chance of a fair hearing. As described in the outline I did not receive any drafts, material or communication from [senior counsel] to instruct him.”

25. [25]
    The applicant could not point to any evidence which supported these assertions.  And, although, as mentioned, he had sought leave to adduce affidavit evidence from himself, nothing in that affidavit touched upon this subject matter.  Absent his condescending to evidence (and the concomitant waiving of privilege which that would likely entail) it would not lie in the applicant’s mouth now to advance the proposed complaints concerning the conduct of his senior counsel.  Without evidence, this proposed ground of appeal could not be argued.  The possibility of the applicant advancing an application for an adjournment of the present application to give him an opportunity to present evidence was raised with him during the course of oral argument.  He determined not to make such an application and advised the Court that he would not press proposed ground D.  Accordingly, that ground does not have to be further considered.
26. [26]
    I would make the following orders:

    1. Leave granted to tender the sentencing remarks in R v Phillips, a copy of the Crown’s written submissions before the sentencing judge and the transcript of oral argument on 25 February 2022.
    2. Save in the respects mentioned in the previous order, the application for leave to adduce further evidence is dismissed.
    3. The application for an extension of time for filing an application for leave to appeal against sentence is refused.
27. [27]
    CROW J:  I agree with Bond JA.