R v Jacobs[2007] QSC 235

SUPREME COURT OF QUEENSLAND

[1] MACKENZIE J:   This is an application under s 188(1)(c) and s 188(3)(b)(iii)  of the Penalties and Sentences Act 1992 (Qld) to reopen a sentence imposed by Dowsett J on 8 October 1996. There has clearly been a long delay in applying for a re-opening, but it is partly explicable by a lengthy delay in disposing of proceedings in the Magistrates Court at Southport in respect of property suspected of being the proceeds of drug offences. Ordinarily, such an application should be made within 28 days of sentence (s 188(5)(b)(i)). Otherwise, an extension of time is required (s 188(5)(b)(ii)).

[2] The application refers to the grounds under s 188(1)(a) and (b), but there is no substance in either of them.  The sentence was one that was in accordance with law and could legally be imposed.  To succeed, the applicant will have to demonstrate that it was decided on a clear factual error of substance.

[3] The indictment alleged trafficking for a period of over three years and nine months and a variety of related counts. The applicant had acquired chemicals to make amphetamines in significant quantities.  He had used force and coercion to recover debts he claimed to be owed in connection with his business.  The sentencing judge sentenced on the basis that there were a large number of individual transactions.  The applicant had operated a network of distributors of drugs and the trafficking included cocaine and heroin.  The applicant was found to be in possession of pure weights of 26 grams of heroin, 14 grams of cocaine and nine grams of methylamphetamine.

[4] Records he kept indicated, on a conservative view of them, that a very large amount of money passed through his hands.  These sums of moneys were unaccounted for other than by attributing them to drug dealing.  The sentencing judge said that the records showed in excess of $100,000 as unexplained income.  The applicant had engaged in a lavish lifestyle.  He had accumulated jewellery and personal property. The capacity to purchase it with legitimate financial resources was not substantiated.  He was on unemployment benefits during the relevant period. The applicant also had false birth certificates, and passports in a variety of names but with his photograph on them. 

[5] After referring to all of these matters the sentencing judge said:

“It can be confidently concluded that the whole scale of operation was large and its nature very sophisticated.  He held substantial stocks of prohibited drugs.  He had a relatively large staff.  He lived an extravagant lifestyle.  He kept extensive records.  He was involved in manufacture as well as distribution of drugs.  He was involved with a range of drugs and had substantial amounts of money in possession”.

[6] He went on say that that because the applicant did not have a drug habit himself his involvement was motivated purely by commercial motives.  The sentencing judge continued:

“All of these factors point to a person deeply involved in the drug trade”. 

[7] By way of mitigation, there was reference to a belated plea of guilty and some evidence that the applicant had assisted the police and prison authorities in detecting other misconduct.  This assistance related to a period prior to sentence.  The sentencing judge commented on the lack of detail in that information.  One of the issues raised in the applicant’s supporting affidavit is that he was unable to present information, subsequently obtained, to the sentencing judge.  The information consists of a letter from the Criminal Justice Commission dated 25 July 1997 advising that the applicant had made a complaint about money recovered from an associate’s house being stolen by police.  At some unspecified time, he gave evidence at a Commission hearing.  It is not clear from the correspondence whether this had occurred prior to sentence.  The information certainly does not establish that it was.  It falls short, therefore, of establishing that the sentence imposed was decided on a clear factual error as to the cooperation rendered in that regard. 

[8] The applicant’s counsel at the sentencing submitted that a sentence of 12 to 14 years imprisonment was appropriate.  The head sentence of 14 years imprisonment for the drug offences fell within that range although at the top of it.  An application for leave to appeal against sentence was refused on 9 May 1997.

[9] Three sums of money totalling $84,226 had been found in the possession of associates of his.  As it much later turned out, proceedings in respect of these moneys were struck out in the Magistrates Court at Southport on 7 September 2005 and the moneys returned on or about 22 February 2006.

[10] The sentencing judge had been told that the sum of $78,670, (comprised in the $84,226), had been given to two named associates to hide. This was not contradicted; no assertion was made in counsel’s submissions before the sentencing judge that the money had not been given to the two men in the circumstances alleged. 

[11] Because the sentencing judge made reference to a rounded sum of $78,000 being found with property of his, this was relied on as a clear factual error of substance enlivening the jurisdiction to reopen the sentence. There was ample evidence that the applicant had access to large sums of money generated by his unlawful activities. Furthermore, in the context of the reasons, it is no more than a passing reference, additional to the already established substantial level of illicitly obtained money to which he had access.  I am not persuaded that, had the applicant been sentenced without reference to the additional sum of money, the level of sentence would have been different.

[12] In R v D [1999] QCA 486, Thomas JA said the following, which, in my view, describes the essential nature of the error relied on in the present case:

“I do not think that the term ‘clear factual error of substance’ presents any particular difficulty.  The use of the word ‘clear’ suggests that the court should not act unless the error is clearly shown, and the words ‘of substance’ suggest that this exceptional procedure should not be invoked in relation to pettifogging points or relatively minor mistakes.  Those words suggest to me the need for something of sufficient importance as to be likely to call for some material alteration of the sentence.”

[13] In the circumstances, no sufficient case has been made out to justify reopening the sentence.  Since an extension of time would have been necessary to bring the application, the appropriate orders are to refuse to extend the time within which the application may be brought, and dismiss the application.