R v Allingham, Landsdowne, Marshall and Booth

[1994] QCA 433

IN THE COURT OF APPEAL [1994] QCA 433

SUPREME COURT OF QUEENSLAND	C.A. No. 226 of 1994 C.A. No. 258 of 1994 C.A. No. 257 of 1994 C.A. No. 259 of 1994
Brisbane
BeforeFitzgerald P. Davies J.A. Cullinane J.

[R. v. Allingham, Lansdowne, Marshall and Booth]

T H E Q U E E N

v.

RUPERT GEORGE ALLINGHAM

(Applicant)

PAUL JEFFREY LANSDOWNE GARY REX JOHN MARSHALL

GARRY BOOTH

(Respondents)

DIRECTOR OF PUBLIC PROSECUTIONS

(Appellant/Respondent)

REASONS FOR JUDGMENT - FITZGERALD P. AND DAVIES J.A.

Judgment delivered 27/10/1994

The material circumstances in these proceedings, which were

heard together, are set out in the reasons for judgment of

Cullinane J. and need not be repeated.

All four sentences seem to us low, but they were imposed by two

very experienced Trial Division Judges.

To some extent at least, what occurred appears to have been influenced by the sequence of events. Allingham was the first

of the four sentenced, although another participant in the criminal activity, Sandra Lee Steele, had been sentenced earlier. She was treated leniently, which might well have been correct because of her personal circumstances, but her treatment seems to have influenced the attitude adopted by the prosecution in relation to Allingham after he was convicted. In this Court,

the prosecution accepted that the range for Allingham was 18

months to 3 years imprisonment and that the sentence imposed avoided any disparity with Ms. Steele and was otherwise appropriate. This seems also to have been the position which the prosecution adopted before the sentencing judge.

In these circumstances, the prosecution's suggested range in

relation to Booth is untenable, and to maintain parity between Allingham and Booth the prosecution's appeal against Booth's

sentence must fail.

Likewise, Allingham's application for leave to appeal, which is

totally without basis except insofar as some disparity can be

pointed to, cannot rely upon a disparity between Allingham and

Booth.

Before considering Allingham further, it is appropriate to

consider Marshall, the driver of the truck which transported the container in which the drugs were imported, and Lansdowne, the driver of the accompanying vehicle.

As Cullinane J. points out, Marshall and Lansdowne were

acquitted of being knowingly concerned in the importation of a prohibited import but convicted of possession of a prohibited

import. The trial judge sentenced them on the basis of what he considered to be the extent of their involvement. In order to understand, and consider the correctness of his view, it is necessary to analyse the basis on which he had instructed the jury.

It is unnecessary to consider much of what he said about

possession. For present purposes, the material element of the

charge on which Marshall and Lansdowne was convicted concerned their knowledge. The "real question" in relation to Marshall,

his Honour told the jury, "is whether he knew he was carrying

cannabis". A little later, he continued:
"... . There is no need for an accused to know that the

drug was imported ... . There is a provision in the Act which says it is not necessary for the prosecution to prove that the person knew that the goods in his possession had been imported into Australia.

It goes on to say that it is a defence if the person proves that he did not know that the goods in his possession had been imported into Australia, but no attempt was made to prove anything like that, so that is not a point with which you are concerned in your consideration of this alternative case."

The passages quoted carried over into the summing-up in relation

to Lansdowne. Leaving aside then any question of physical

control, which his Honour instructed the jury could have commenced at the beginning of the journey from Rocklea to Booth's property, the issue for the jury in relation to each of Marshall and Lansdowne with respect to the possession count was when he first knew that the drug was in the container.

Taken in isolation, the guilty verdicts on the possession charge

are consistent with a conclusion by the jury that each of Marshall and Lansdowne had possession of what they knew was a

drug from the time when the journey from Rocklea commenced. But his Honour sentenced them on the basis that they only knew that

there was a drug in the container after they arrived at Booth's

property, shortly before the police arrived and arrested them:

see the passage from p.122 of the appeal record quoted in his

reasons for judgment by Cullinane J.

During the course of argument, his Honour said that that basis

was "most logically consistent" with the jury's acquittal on the importation charge and conviction on the possession charge. We

cannot agree. As his Honour told the jury before consideration of the importation charge, "... there needs to be knowledge that there was an imported drug in the container" and, he went on,

"some conduct in relation to it with that knowledge". Importantly, on the importation charge, in contrast to the

possession charge, the prosecution could not rely on a statutory

presumption that the drug was known to be imported but had to

prove that knowledge: see subsection 233B(1A) and compare

subsections 233B(1)(c) and (d) of the Customs Act 1901 (Cwlth). The jury might have been convinced that Marshall and Lansdowne knew that the drug was in the container when they took

possession of it at Rocklea, but acquitted them on the

importation charge because they were not convinced that they
knew that the drug was imported.
However, in the passage quoted by Cullinane J. from p.122 of the

appeal record, his Honour indicated that the basis on which he sentenced Marshall and Landsowne was his "charitable interpretation" of the jury's verdict. It is not possible to be satisfied that this "interpretation" was influenced by his earlier, erroneous view of what was "most logically consistent" with the jury's verdicts. In these circumstances, we do not feel justified in substituting our own opinion as to their probable involvement. It was within the sentencing Judge's

discretion to proceed on the basis favourable to Marshall and

Lansdowne which he adopted: cf R. v. Pryor (1987) 2 Qd R 768;

Skillin (1991) 53 A Crim. R 311.

In these circumstances, the prosecution appeal against their

sentences faces very real difficulties, as counsel acknowledged. We agree with Cullinane J. that the appeals should be dismissed.

Because of their assumed lesser involvement, there is no

foundation for a submission that there is disparity between the

sentences of Marshall and Lansdowne and Allingham's sentence. Allingham's application for leave to appeal should accordingly

be refused.

We agree with the orders proposed by Cullinane J.