Queensland Judgments
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R v Hilton

Unreported Citation:

[2020] QSCPR 2

EDITOR'S NOTE

In this matter, Henry J considered whether to stay a prosecution on a circumstance of aggravation of being a participant in a criminal organisation as provided for by s 161Q(1) of the Penalties and Sentences Act 1992. His Honour ultimately held that while the accused was a “wholesale customer” of a criminal organisation that did not, of itself, mean that he was a participant in the criminal organisation. The prosecution case, taken at its highest, could not support the inference that he was a participant and accordingly the application was granted and the prosecution on the circumstance of aggravation stayed.

Henry J

6 February 2020

The accused was charged with carrying on the business of unlawfully trafficking in methylamphetamine, cocaine and MDA, with a circumstance of aggravation of being a participant in a criminal organisation. Section 161Q(1) of the Penalties and Sentences Act 1992 relevantly provides that it is a circumstance of aggravation that the offender, at the time the offence was committed, or during its commission, (i) was a participant in a criminal organisation, and (ii) knew, or ought reasonably to have known, that the offence was being committed in association with 1 or more persons who were, at the relevant time, participants in a criminal organisation.

The accused pleaded guilty to the drug trafficking charge but brought an application for a permanent stay of the prosecution against him on the circumstance of aggravation. The accused argued that, even taking the evidence of the prosecution at its highest, the facts were incapable of supporting a guilty verdict on the circumstance of aggravation.

The facts showed that the accused was a wholesale customer of “Mr Hill”, from whom he purchased drugs which he then in turn trafficked in Cairns. Henry J observed that it was “uncontroversial” that there would be a case to answer on the second limb of the circumstance of aggravation. It would be open to infer that the accused would have appreciated that Mr Hill was “one of a group of at least three engaging … in the serious criminal activity of carrying on the business of trafficking dangerous drugs from Sydney to Cairns”. At issue was whether there would be a case to answer on the first limb, namely, that the accused was a participant in a criminal organisation.

Henry J noted that the first limb is a “very important qualification”:

“It is not enough merely for an accused to offend in association with a criminal organisation in order that the circumstance of aggravation is present. If it were, then all customers of criminal organisations selling drugs supplied to them by the organisation could be caught by the circumstance of aggravation.”

Henry J went on to consider the meaning of participant as defined in s 161P(1) of the Penalties and Sentences Act 1992. The prosecution sought to rely on s 161P(1)(f), which includes a person whose “conduct in relation to the organisation would reasonably lead someone else to consider the person to be a participant in the organisation”. While noting the circularity in the definition, Henry J considered the ordinary meaning of a “participant” to be “a person who takes part in something”.

The problem for the prosecution was that there was “no evidence of any precision as to how the accused was taking part in” the criminal organisation. Henry J said:

“There is, of course, evidence sustaining the inference that the accused was a customer of that organisation, that is, that he was, through Hill, buying large amounts of the dangerous drugs that the organisation trafficked to Cairns. A participant in an organisation may also happen to be a customer of that organisation, however proof only that the person was a customer of the organisation would not, without more, prove the person was ‘taking part in’ the organisation.”

Moreover, while the accused was a distributor of drugs, there was no evidence that he was supplying drugs to others on behalf of, as agent for, or as an employee of, the criminal organisation. Accordingly, even taking the prosecution case at its highest, Henry J concluded that the evidence was incapable of sustaining the inference that the accused was a participant in the criminal organisation. The application was therefore upheld.

J English

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