R v Christensen[2007] QSC 173

SUPREME COURT OF QUEENSLAND

[1] MACKENZIE J:   This is an application to reopen a sentence pursuant to s 188(1)(c) of the Penalties & Sentences Act 1992 (Qld).  On 20 March 2006 the applicant pleaded guilty to money laundering and was sentenced to 15 months imprisonment, to be served cumulatively on a term of 10 years imprisonment he was already serving for trafficking in dangerous drugs.

[2] The orders sought are as follows:

“1.Set aside sentencing out of grievance and cruel and unusual punishment;

2.And/or to serve concurrent sentence with back date to sentencing “the 20th March 2006.”;

3.Order the applicant original parole date 16-1-09.”

[3] There is also a request to “revisit by way of direction or declaration to (the applicant’s co-accused) that their convictions be squashed (sic), or a re-sentencing under a lesser charge of possession of tantad (sic) property”.  Since there is no application by any of those parties, such an order cannot be made in these proceedings.    

[4] The applicant did not appeal against the cumulative sentence.  Instead, he has applied for reopening of the sentence.  For such an application to succeed it is necessary to establish that the sentence was decided on a “clear factual error of substance”.  Since the application for reopening was not made within 28 days after the day the sentence was imposed, the discretion in s 188(5)(b)(ii) governs the application.  Two observations may be made in this regard. One is that, in R v Cassar; ex parte Attorney-General of Queensland [2001] QCA 300, it is said that sentences are reviewed through the appeal process, not by means of s 188, which is in the nature of a “slip rule” to be used in the exceptional limited circumstances to which, in precise terms, s 188 refers.  The second is that a clear factual error of substance must be identified before the sentence can be reopened.  Therefore the scope of an application to reopen a sentence is very limited. It is not within its scope to revisit matters in the past that fall outside that narrow focus.

[5] To understand the issues in this application properly, it is necessary to refer to the background to the matter. On 29 October 2001, the applicant pleaded guilty to trafficking in methamphetamine and cannabis sativa.  On 1 November 2001, he pleaded guilty to a number of individual drug offences which occurred during the period of trafficking.  On that day, he was sentenced to 10 years imprisonment for trafficking, with no further penalties being imposed for individual offences.  The 10 years imprisonment carried with it an automatic serious violent offence declaration.

[6] Then, on 22 March 2002 an application for leave to appeal against that sentence was refused by the Court of Appeal.  On 12 November 2004 an application for special leave to appeal to the High Court was also refused.  Meanwhile, on 26 August 2004 the applicant had been arrested in relation to the money laundering charges which are the subject of the present application. 

[7] On 20 March 2006, the applicant and several other accused including members of his family pleaded guilty to money laundering.  The 15 months cumulative sentence with a date for consideration of release to post-prison community based release after serving seven and a half months, was imposed on the applicant. 

[8] On 30 October 2006 there was an application to reopen the sentence imposed on 1 November 2001.  That application was refused by Helman J.  On 2 March 2007 an application to the Court of Appeal for leave to appeal against Helman J’s decision on 30 October 2006 was refused.  On 24 April 2007 a further application was made to Helman J to reopen the sentence of 1 November 2001.  It was also refused.

[9] The applicant’s submissions include some issues that are clearly beyond the scope of the present application.  Many of them relate to issues concerning the drug trafficking case and the applicant’s perception of what should have happened pursuant to arrangements and negotiations he had in connection with the drug trafficking activities and the trafficking charge.  It is apparent from the decision of the Court of Appeal on 2 March 2007 that those matters were agitated before the Court of Appeal at that hearing. They are beyond the scope of this application.

[10] Dealing with the matters raised in oral submissions with more particularity, the complaint that a concurrent sentence rather than a cumulative sentence should have been imposed is a matter that could properly be agitated on an appeal to the Court of Appeal, which, because of the time that has elapsed since sentence, would require leave from that court.  However, the sentence was imposed for an offence to which the applicant pleaded guilty, committed while he was in prison and, except in the case where the additional sentence imposed would extend beyond the time of the original sentence, a cumulative sentence is frequently imposed to punish the additional criminality.  The complaint that the applicant suffered double jeopardy is without foundation.  The offence of trafficking and the subsequent offence of money laundering, in respect of both of which the applicant pleaded guilty, involve separate acts and offences committed at different times.  That situation falls outside the concept of double jeopardy as it is ordinarily understood and, in particular, the provisions of s 16 and s 17 of the Criminal Code 1899 (Qld).

[11] The complaint that the operation of the serious violent offence declaration that automatically applied, given the length of the sentence imposed for drug trafficking produced a lack of equivalence with the cases of other offenders whose sentences did not attract a serious violent offence declaration is not a matter that falls within the scope of the present application.  Nor does the fact that the applicant may have been dealt with under a different confiscation regime from other offenders. 

[12] It was also submitted by the applicant that the effect of the sentence imposed on him on 23 March 2006 was to extend the time at which he would be considered for progression through the corrections system. That was well understood when the sentence was imposed and no factual error of substance exists in relation to that complaint. 

[13] His allegation that he was persuaded not to have a full committal hearing against his will and decided to plead guilty because he was concerned that his mother, who was a co-accused, would be imprisoned if he did not was not raised at the sentencing and is not productive of a clear factual error of substance.  That and any other complaints about aspects of his representation are not ones that can be addressed under the limited procedure provided by s 188.  If the applicant wishes to allege that the sentencing process miscarried for those reasons, the appropriate forum in which to raise them is the Court of Appeal, with the allegations supported by evidence in a form that is admissible and fully particularised.  It should be noted that the appeal process with respect to the trafficking convictions has already been exhausted and issues relevant to that phase of the matter would be in all probability irrelevant in such an application.

[14] The applicant also expressed grievances over the process and consequences of disposal of a house seized as proceeds of crime and his ex-wife’s activities in relation to the house and in other respects. These are contained in his written material.  The remedy in respect of that kind of complaint and of the operation of the witness protection program or any other form of police activity which inhibits contact with his family falls outside the scope of these proceedings, except to the extent that it should be noted that the issue of separation from his family was raised in the sentencing proceedings and taken into account.  The generalised submission that, because of all he had been through, he ought to receive some amelioration of his sentence is a matter which more appropriately lies in the realm of an appeal to the Court of Appeal than in these proceedings. 

[15] In her submissions the Crown Prosecutor, (who was not the Crown Prosecutor who appeared at sentence) identified several issues and made submissions on them.  The restrictions inherent in the applicant having been placed in protective custody were, as she explains in her submissions, dealt with by the applicant’s counsel at sentence and it was accepted in the sentencing remarks that that would render the applicant’s incarceration more unpleasant.  It was therefore taken into account. 

[16] The Crown Prosecutor also pointed out that cooperation in negotiating a basis for a plea of guilty and in proceedings relating to restrained property was outlined by the applicant’s counsel at sentence and the plea of guilty was expressly taken into account.  The multiplicity of issues raised by the applicant relating to his interaction with the authorities at the time the trafficking charges were being dealt with is outside the scope of the present proceedings.  With regard to one particular issue in that respect, there was a suggestion in the applicant’s submissions that the Crown Prosecutor at sentence agreed that the applicant had been “double crossed” in relation to the trafficking proceedings.  As the Crown Prosecutor here points out, that is a misreading of what the Crown Prosecutor at sentence said.  He was not agreeing with that notion.  The words “I accept that there was” relied on by the applicant are actually the opening words of a quotation from Helman J’s sentencing reasons, quoted by the Crown Prosecutor, and appeared in an entirely different context from the notion that there had been double crossing. 

[17] One other matter of detail concerns whether a statement during the sentence hearing by the Crown Prosecutor that some of the moneys allegedly laundered had been concealed in a range hood in the applicant’s mother’s house was correct.  A statement to that effect was initially made but, later in the Crown Prosecutor’s submissions it was at least partially resiled from.  Even if it were to be considered as a clear factual error, which is probably not the case in view of the tentative retraction of it, the mistake was on a very peripheral detail to the issues that had to be dealt with in sentencing the applicant and could not in the circumstances be one of substance in the context of the case.       

[18] For the reasons given the applicant has failed to establish a clear factual error of substance as required by s 188(1)(c) and the application for reopening the sentence imposed on 20 March 2006 must be refused.   The order is as follows:

1.The application pursuant to s 188(1)(c) of the Penalties & Sentences Act 1992 (Qld) to reopen sentencing proceedings conducted on 20 March 2006 is refused.