R v Barker

Case [2015] QCA 215

SUPREME COURT OF QUEENSLAND

CITATION:

R v Barker [2015] QCA 215

PARTIES:

R
v
BARKER, William Fredericis
(applicant)

FILE NO/S:

CA No 300 of 2014
SC No 279 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


Supreme Court at Brisbane – Unreported, 22 October 2014

DELIVERED ON:

6 November 2015

DELIVERED AT:

Brisbane

HEARING DATE:

14 May 2015

JUDGES:

Morrison and Philippides JJA and Carmody J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – OTHER CASES – where the applicant pleaded guilty to trafficking in the dangerous drug methylamphetamine and three lesser drug offences and was sentenced to 10 years imprisonment for the trafficking – where police surveillance revealed a large number of wholesale supplies the applicant made but did not identify the amount of drugs sold in some of those transactions – where a search of the applicant’s home revealed $995,250.50 in concealed cash, which formed part of the applicant’s unexplained income – where the sentencing judge rejected the applicant’s explanation for the source of the cash and this finding was not challenged on appeal – whether the sentencing judge erred in finding that the unsourced cash was the proceeds of the applicant carrying on the business of trafficking – whether the sentence of 10 years imprisonment was manifestly excessive

Evidence Act 1977 (Qld), s 132C

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
R v Bost[2014] QCA 264, distinguished
R v Feakes[2009] QCA 376, cited
R v Gardner (Senior)[2012] QCA 290, cited
R v Johnson [2014] QCA 79, cited

COUNSEL:

K Fleming QC for the applicant
T Fuller QC for the respondent

SOLICITORS:

Noel Woodall & Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  I agree with the order proposed by Philippides JA and with the reasons given by her Honour.

  2. PHILIPPIDES JA:  The applicant seeks leave to appeal against the sentences imposed on his plea to one count of trafficking in dangerous drugs, which concerned the drug methylamphetamine (count 1), one count of possessing an amount of Australian currency obtained from trafficking in dangerous drugs (count 2), one count of unlawfully possessing the relevant substance iodine (count 3) and one count of possessing laboratory equipment for use in the commission of the crime of trafficking a dangerous drug (count 4).  In relation to count 1, the applicant was sentenced to 10 years imprisonment.  On counts 2, 3 and 4, the applicant received respectively eight years, three years and two years imprisonment.  One day of pre-sentence custody was declared.

    Grounds of appeal

  3. The Notice of Appeal raises five grounds.  Ground (a) contends that the sentence imposed was manifestly excessive.  Grounds (b), (c) and (d) are allegations that the sentencing judge erred:

    ·in…

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Details
AGLC
R v Barker [2015] QCA 215
Case
[2015] QCA 215
Decision Date

CaseChat Overview and Summary

In R v Barker, the applicant, who had pleaded guilty to trafficking in methylamphetamine and other drug offences, challenged his 10-year imprisonment sentence. The applicant contended that the sentencing judge erred by attributing the large sum of cash found at his property to his drug trafficking business. The applicant also argued that the sentence was manifestly excessive. The primary evidence against the applicant included police surveillance of drug transactions, a search that revealed $995,250.50 in cash at the applicant’s property, and a forensic accountant’s report showing unexplained income of $1,775,928.55 over a specific period.

The court had to determine whether the sentencing judge was correct in finding that the unsourced cash was derived from the applicant’s drug trafficking and whether the sentence was manifestly excessive. The court considered the evidence and found that the sentencing judge was not wrong in attributing the cash to the trafficking business. The court held that the sentencing judge had properly considered the applicant's rehabilitation prospects and the deterrence already achieved, but ultimately concluded that the sentence was not manifestly excessive.

The court dismissed the application for leave to appeal, affirming the 10-year imprisonment sentence imposed on the applicant.

Orders

Orders of the court

The application for leave to appeal is refused.

Background

Background to the litigation

Ground (e) alleges that the sentencing judge failed to give proper regard to the applicant’s rehabilitation and unlikelihood of reoffending, as well as the personal deterrence that had already been achieved due to the public shaming of the applicant.Agreed statement of facts The sentencing of the applicant proceeded on the basis of an agreed statement of facts. The applicant was a primary person of interest of a joint Queensland Police Service and Australian Federal Police drug operation, targeting the supply of methylamphetamine in South East Queensland. In October 2008, the applicant became the subject of telephone intercepts which continued until the end of the operation on 22 April 2009. The intercepts together with physical surveillance and use of undercover law enforcement officers to purchase drugs from the applicant’s associates exposed a total of 38 transactions identifiable to four customers (Cochrane, McCormack, Young and Stainer). The applicant communicated with his customers through coded messages. Police were able to break the code used in the transactions and discern some of the quantities sold over the period of the intercepts:·There were six identified supplies to Cochrane, totalling 28 ounces of methylamphetamine, with value of $84,000 (in quantities of three, four, five and seven ounces). A search of Cochrane’s house revealed a quantity of drugs which was said to have been obtained from the applicant and 63 items of lab gear which Cochrane claimed to be storing at the request of the applicant.·The applicant made three identified supplies to McCormack totalling 15 ounces of methylamphetamine in quantities of two, five and eight ounces. A search of McCormack’s house discovered only cash.·There were 10 identified supplies to Young. Police were able to discern that in respect of five of those transactions, the total amount sold was 14 ounces with identifiable value of $42,000. The amount purchased in the other five transactions remains unknown.·The transactions with Stainer (the applicant’s most frequent customer) were not carried out using a particular code. Police were able to identify 19 sales, the value of one of which was $18,000. There was a discussion between the applicant and Stainer about a payment of $100,000. Forensic analysis revealed that this amount of money was not paid in cash and, instead, went into the applicant’s bank account where it formed part of the forensic accounting investigation. A search of Stainer’s house revealed a receipt for $100,000 made out to the applicant, as well as some $39,000 in cash and a small amount of cannabis and methylamphetamine. A search a couple of days later revealed a further $34,180 in cash. On 22 April 2009, police searched the applicant’s property. With the assistance of dogs deployed by customs officers, police discovered $995,250.50 in cash, concealed as follows:·a bundle of cash totalling $13,550 found in the pockets of a pair of denim shorts in a cupboard;·a bundle of cash totalling $3,100.50 stashed in a lounge chair stored in a shipping container;·three packages of cash wrapped in duct tape underneath one of the shipping containers on the property totalling $47,000 (one of these was a bundle provided by Cochrane just prior to the search);·14 packages (13 wrapped in tape and one in a clip seal bag together with a set of scales) located underneath another shipping container on the property totalling $146,820;·two bags of cash found inside the wall cladding of the residential shed on the property totalling $273,880;·five shopping bags containing cash located in a large plastic drum buried under the gravel near the carport totalling $484,880; and·three packages of cash located under another shipping container totalling $24,900.

Evidence

Evidence Before The Court

The applicant’s ex-step son also gave evidence. He worked for one year at the pizza shops as a manager and agreed that they made “good money”. He accepted in cross-examination that the cash they took home from the pizza shops was for the purpose of checking that the till and cash balanced.The evidence of the forensic accountant The report of Ms Hamer, a forensic accountant, assessed the applicant’s income for the period 1 January 2008 to 23 April 2009. The unexplained income for that period was $1,775,928.55. In cross-examination, Ms Hamer stated that she saw no evidence of cash holdings prior to 1 January 2007 but agreed she could not say how long the notes had been stored. She could not find a source for that money. For the period 1 January 2008 to 30 June 2008, Ms Hamer discovered unexplained income of $151,000. For the period 1 July 2008 to 23 April 2009, the unexplained income was some $1.6 million, which included the $995,250.50 found at the applicant’s property.The sentencing judge’s findings on the contested sentence The facts on sentence were contested in three respects. In ruling on each matter, his Honour was mindful of the requirement of s 132C of the Evidence Act 1977 (Qld). The first area of contest concerned the length of the trafficking period. The second concerned whether the applicant also trafficked approximately 2,000 ecstasy tablets. The third factual contest concerned whether the whole amount of $1,775,928.55 from unknown sources for the period 1 January 2008 to 23 April 2009, which included an amount of $995,250.50 found on the applicant’s property during the execution of a search warrant on 22 April 2009, should be found to be moneys from trafficking. The findings as to the first two areas of dispute were not the subject of challenge. It is sufficient to note that, in relation to the second matter, the sentencing judge considered that the respondent had not presented a credible witness or any other evidence to support the allegation that there was trafficking of 2,000 additional tablets of ecstasy. As to the period of the trafficking, the sentencing judge found that the Crown had not discharged the onus of proving that the trafficking period commenced on 11 May 2007. However, the sentencing judge also rejected the contention that the commencement of the charged trafficking should be found to be the date the telephone intercepts were commenced, 27 October 2007. His Honour remarked that it would stagger belief that the period of trafficking did not commence months before the telephone intercepts. His Honour concluded, taking into account the applicant’s own evidence that he had trafficked for some months prior to the telephone intercepts and the forensic report of Ms Hamer, that the applicant was engaged in the business of trafficking from at least 1 July 2008. In respect of the third issue, the sentencing judge reduced the quantum of the unsourced income to $1.61 million, bearing in mind the shortened trafficking period, and found that the cash of $995,250.50 located on the property was derived from the trafficking. The sentencing judge had regard to the forensic evidence of Ms Hamer for the period 1 January 2008 to 23 April 2009: “… [that being] the period following the sale of the [applicant’s] car business. The property from which the business was conducted sold for $2.3 million dollars on the 12th of December 2007. I note the [applicant’s] evidence that this was not the sale of the car business, but rather the property from which the business was conducted. He alleged that further car deals were conducted after this date. Although, he admits that he did not continue to attend those premises for the purposes of conducting the car business. Of the unsourced funds, Ms Hamer analysed this for two periods. The first period was from the 1st of January 2008 to the 30th of June 2008 … which is in the amount of $151,000. The second period, being 1 July 2008 to the 23rd of April 2009, which includes an amount of $1.6 million dollars. This encompasses the $995,250.50 seized from the [applicant’s] property when the search warrant was executed.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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