R v BDW; R v DAA

Case [2022] QCA 197

SUPREME COURT OF QUEENSLAND

CITATION:

R v BDW; R v DAA [2022] QCA 197

PARTIES:

In CA No XX of 2021:

R
v
BDW
(first applicant)

In CA No XX of 2021:

R
v
DAA
(second applicant)

FILE NO/S:

CA No XX of 2021
CA No XX of 2021
SC No XX of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: XX 2021 (Justice Z)

DELIVERED ON:

22 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

XX 2022

JUDGES:

Bowskill CJ and Mullins JA and Boddice J

ORDERS:

In CA No XX of 2021:

(a) leave to appeal be granted in respect of the ground based on s 161S of the Penalties and Sentences Act 1992;

(b) the appeal against sentence, on the ground that s 161S of the Act was applicable, be dismissed.

In CA No XX of 2021:

(a) leave to appeal be granted in respect of the ground based on s 161S of the Penalties and Sentences Act 1992;

(b) the appeal against sentence, on the ground that s 161S of the Act was applicable, be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where on 11 XX 2021, each applicant pleaded guilty to trafficking in a dangerous drug with a circumstance of aggravation – where the circumstance of aggravation was that each applicant was a participant in a criminal organisation and knew that the offence was being committed in association with one or more persons who were, at the time that the offence was committed, participants in a criminal organisation – where a contested sentencing hearing occurred in XX 2021 – where the sentencing judge held that the cooperation provided by each applicant was not ‘of significant use in a proceeding about a major criminal offence’ within the meaning of s 161S Penalties and Sentences Act1992 (the Act) – where as a result of that finding, each applicant was ordered to serve, in addition to their base sentence, a cumulative seven years imprisonment pursuant to s 161R of the Act – where each applicant argues that the sentencing judge erred in respect of s 161S findings – where the Act establishes a targeted sentencing regime to encourage particular offenders to cooperate with law enforcement agencies – whether the sentencing judge erred in finding that the cooperation provided by the applicants was not of significant use

Penalties and Sentences Act 1992 (Qld), s 13A, s 13B, s 161P, s 161Q, s 161R, s 161S

Malvaso v The Queen (1989) 168 CLR 227; [1989] HCA 58, cited
R v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439, cited
R v PBH (2021) 7 QR 414; [2021] QCA 38, cited
R v Thompson (1994) 76 A Crim R 75; [1994] QCA 393, cited

COUNSEL:

B J Power KC, with C R De Marco, for the first applicant
K M Hillard and…

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AGLC
R v BDW; R v DAA [2022] QCA 197
Case
[2022] QCA 197
Decision Date

CaseChat Overview and Summary

In the case of R v BDW; R v DAA, the applicants appealed against their sentences, arguing that the sentencing judge erred in finding that their cooperation with law enforcement agencies was not of significant use. Each applicant had pleaded guilty to trafficking in a dangerous drug with a circumstance of aggravation, specifically that they were participants in a criminal organisation and knew the offence was being committed in association with others who were similarly involved. A contested sentencing hearing took place, where the sentencing judge ruled that the applicants' cooperation was not of significant use in a proceeding about a major criminal offence under s 161S of the Penalties and Sentences Act 1992. Consequently, the applicants were sentenced to an additional seven years in prison, on top of their base sentences.

The legal issues before the court were whether the sentencing judge correctly assessed the applicants' cooperation under s 161S and whether the additional seven years in prison were justified. The applicants contended that the sentencing judge failed to appreciate the significance of their cooperation. They argued that the cooperation provided was of significant use, which should have resulted in a more lenient sentence. The court considered whether the cooperation was of substantial assistance in the investigation or prosecution of major criminal offences and if it warranted a reduced sentence.

The court examined the evidence and previous cases such as Malvaso v The Queen and R v Thompson, which emphasised the importance of recognising and rewarding cooperation from offenders in organised crime cases. It noted that the Act aims to encourage cooperation by allowing for reduced sentences when the cooperation is deemed significant. However, the court held that the sentencing judge's assessment of the applicants' cooperation was not erroneous. The court found that the cooperation provided did not meet the threshold of significant use as required by s 161S, thereby justifying the additional seven years in prison. The applicants' appeal against sentence was dismissed, and leave to appeal was granted on the specific ground of s 161S.

Orders

Orders of the court

In CA No XX of 2021:

(a) leave to appeal be granted in respect of the ground based on s 161S of the Penalties and Sentences Act 1992;

(b) the appeal against sentence, on the ground that s 161S of the Act was applicable, be dismissed.

In CA No XX of 2021:

(a) leave to appeal be granted in respect of the ground based on s 161S of the Penalties and Sentences Act 1992;

(b) the appeal against sentence, on the ground that s 161S of the Act was applicable, be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In Malvaso v The Queen (1989) 168 CLR 227 at 239, Deane and McHugh JJ said:“It would be to close one’s eyes to reality to fail to recognize that in areas of organized crime in this country, particularly in relation to drug offences, the difficulties of obtaining admissible evidence are such that it is imperative, in the public interest, that there be a general perception that the courts will extend a degree of leniency, which would otherwise be quite unjustified, to those who assist in the exposure and prosecution of corrupt officials and hidden organizers and financiers by the provision of significant and reliable evidence. … Any person who provides genuine information to the authorities about the workings of organized crime exposes himself to the danger of retributive violence. That danger can be aggravated within a prison environment.” [underlining added] In that case, the offender “had provided vital and reliable information and assistance in the prosecution of a corrupt senior police officer involved in the organized production and distribution of drugs”. In R v Thompson (1994) 76 A Crim R 75, the Court considered the significance of information provided by an offender which had helped to solve many other crimes. He was described as having provided “highly valuable information about offenders other than himself”. The Court recognised that substantial discounts from the sentence which would otherwise be appropriate may be justified where an offender implicates others, and said (at 78-79):“Another indication that in appropriate circumstances heavy discounts may be granted for co-operation of the kind being considered is to be found in the Western Australian case of Hayes (1981) 3 A Crim R 286. There the applicant had been sentenced to seven years imprisonment, principally for a number of offences of breaking and entering with intent. There had been co-operation to enable the police to identify and prosecute other persons. Burt CJ remarked (at 287):‘It is well recognised and has always been that informers can be of enormous value in the detection of crime and in the bringing of offenders to justice. Some would say that for that purpose their use is essential... Hence the dilemma. If, when an informer comes to be punished for his own criminal acts, no reward at all is given to him for the information given by him leading to the apprehension and punishment of other criminals, that information will not be forthcoming... If, on the other hand, the reward for an informer so placed is too large, it could lead to the giving of false evidence and to many other abuses’.His Honour also said:‘But should it appear that the information given has been of substantial assistance in the detection of crime and in the conviction of offenders and that the disclosures made have been full and frank, then when he comes to be sentenced some allowance should be made on that account. In a number of reported cases it appears that the allowance has been substantial and it has resulted in a reduction in the sentence of 50 per cent or even more. But each case must of necessity rest upon its own facts’.” [underlining added]

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The only means by which the sentence imposed on such an offender can be ameliorated or mitigated is provided for by s 161S, as follows:“161S Cooperation with law enforcement agencies(1)Subject to subsections (2) and (3), sections 13A and 13B apply for the sentencing of an offender who is convicted of a prescribed offence committed with a serious organised crime circumstance of aggravation.(2)For section 13A, an offender mentioned in subsection (1) is taken to have undertaken to cooperate with law enforcement agencies in a proceeding about an offence, including a confiscation proceeding, only if—(a) the offender has undertaken to cooperate with law enforcement agencies in a proceeding about a major criminal offence; and(b) the court is satisfied the cooperation will be of significant use in a proceeding about a major criminal offence.(3)For section 13B, an offender mentioned in subsection (1) is taken to have significantly cooperated with a law enforcement agency in its investigations about an offence or a confiscation proceeding only if—(a) the offender has significantly cooperated with a law enforcement agency in its investigations about a major criminal offence; and(b) the court is satisfied the cooperation has been, is or will be of significant use to the law enforcement agency or another law enforcement agency in its investigations about a major criminal offence.(4)This section applies despite section 161R(3) or (4).(5)In this section—major criminal offence means an indictable offence for which the maximum penalty is at least 5 years imprisonment.” [underlining added] It was expressly part of the intention underpinning the new serious organised crime circumstance of aggravation, with its targeted sentencing regime, to “encourage these particular offenders to cooperate with law enforcement agencies in proceedings or investigations about major criminal offences”.[3][3]Explanatory Notes to the Bill which became the Serious and Organised Crime Legislation Amendment Act 2016 at p 120. As this Court confirmed in R v PBH [2021] QCA 38; (2021) 7 QR 414 at [6], both s 13A and s 13B are procedural provisions. The source of the court’s obligation to have regard to past cooperation (s 13B) is s 9(2)(i)[4] and for future cooperation (s 13A) it is s 9(2)(r)[5] of the Act.[6] But for an offender convicted of a prescribed offence with a serious organised crime circumstance of aggravation, in order for the procedural provisions of either s 13A or s 13B to apply, the offender must first establish, to the sentencing court’s satisfaction, that the requirement of s 161S(2) or (3) (as relevant) has been met.[4]By s 9(2)(i), in sentencing an offender, a court must have regard to “how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences”.[5]By s 9(2)(r), in sentencing an offender, the court must have regard to “any other relevant circumstance”.[6]Referring to R v Ianculescu [1999] QCA 439; [2000] 2 Qd R 521 at [4].