R v Elfar and Golding

Case [2017] QCA 170

SUPREME COURT OF QUEENSLAND

CITATION:

R v Elfar & Golding [2017] QCA 170

PARTIES:

In CA No 251 of 2015:
R
v
ELFAR, Terrance
(applicant)

In CA No 252 of 2015:
R
v
GOLDING, Simon Charles
(applicant)

FILE NO/S:

CA No 251 of 2015
CA No 252 of 2015
SC No 864 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Applications

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 16 September 2015

DELIVERED ON:

11 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2017; 14 February 2017

JUDGES:

Gotterson and Morrison and McMurdo JJA
Separate reasons for judgment of each member of the Court, Gotterson and Morrison JJA concurring as to the orders made, McMurdo JA dissenting

ORDERS:

1.   In CA 251 of 2015, the application for leave to appeal against sentence is refused.

2.   In CA 252 of 2015, the application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – PARITY BETWEEN CO-OFFENDERS – GENERAL PRINCIPLES – where the applicants were convicted of the importation into Australia of a commercial quantity of a border controlled drug, cocaine – where the applicant Elfar was sentenced to 30 years’ imprisonment with a non-parole period of 20 years – where the applicant Golding was also sentenced to 30 years’ imprisonment but with a non-parole period of 18 years – where another participant in the import venture, Sander, was sentenced to 30 years’ imprisonment with a non-parole period of 16 years – where Elfar and Golding seek leave to appeal against their sentences on the grounds that they are manifestly excessive and do not reflect the principle of parity between all three co-offenders – where the importation was a complex, well planned, international operation – where Elfar and Golding sailed a yacht (the Mayhem) to meet another vessel (the Edelweiss) to exchange 400 kilograms of cocaine – where Elfar was in control of the Mayhem and Sander was captain of the Edelweiss – where Elfar and Golding moored at a marina in Queensland and were arrested by the Australian Federal Police (AFP) – where the Crown submitted that Elfar’s participation was more serious than that of Golding and Sander because Elfar provided the Mayhem and communicated with the Edelweiss in the months leading up to the importation – where the applicants submitted that there were no material differences between the offenders’ criminal histories – where the applicants submitted that there was a lack of parity with the sentence in relation to Sander – where the learned sentencing judge found that Elfar, and to a lesser extent, Golding, had both participated in planning and executing the importation – where both applicants knew the scale of the importation but lacked insight into the seriousness of the offending – where Sander was engaged because of his seamanship skills and had no criminal history – where the learned sentencing judge had found that while all offenders were motivated by financial gain, only Sander cooperated…

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AGLC
R v Elfar and Golding [2017] QCA 170
Case
[2017] QCA 170
Decision Date

CaseChat Overview and Summary

This case involves the applicants, Elfar and Golding, who were convicted of importing a commercial quantity of cocaine into Australia. They were sentenced to 30 years’ imprisonment with non-parole periods of 20 and 18 years, respectively. They sought leave to appeal against their sentences, arguing they were manifestly excessive and did not reflect the principle of parity between all three co-offenders. Another participant, Sander, was sentenced to 30 years’ imprisonment with a non-parole period of 16 years. The Crown argued that Elfar's participation was more serious than that of Golding and Sander because Elfar provided the yacht and communicated with the other vessel in the months leading up to the importation.

The key legal issues were whether the learned sentencing judge exercised the sentencing discretion in accordance with the parity principle and whether the sentences were manifestly excessive. Both parties conceded that the breadth of the sentencing discretion in cases of this kind is wide. The applicants submitted that R v Thompson supported a head sentence of 20, rather than 30 years’ imprisonment, while the Crown advanced a number of cases which demonstrate the range of sentences in cases of this kind extends well beyond 20 years’ imprisonment.

The court found that the sentencing judge had properly exercised the sentencing discretion and that the sentences were not manifestly excessive. The court concluded that the applicants' arguments about parity were not persuasive, as the sentencing judge had considered the differences in roles and responsibilities among the co-offenders. The court held that the sentences were appropriate, taking into account the seriousness of the offending and the need to deter future drug importation offences.

In conclusion, the court refused the applications for leave to appeal against the sentences.

Orders

Orders of the court

1. In CA 251 of 2015, the application for leave to appeal against sentence is refused.

2. In CA 252 of 2015, the application for leave to appeal against sentence is refused.

Background

Background to the litigation

The grounds of challenge are:(a)that the sentences are manifestly excessive;(b)error in failing to properly reflect parity issues.Factual background of the offending The relevant facts are set out in detail in Elfar and Golding.[2] It is convenient to adopt them here, omitting some matters relevant only to the conviction appeals. In addition some facts as found for the purpose of sentencing have been included in what follows.[3][2]Elfar and Golding at [6]-[18].[3]The additional facts are drawn from the remarks at AB 2336-2338. On 3 August 2010, a boat called the Edelweiss sailed from Panama City, south to the coast of Ecuador, and then west across the Pacific Ocean. By 8 October 2010, it was about 320 nautical miles off the Australian east coast. It was manned by two men, Sander and Serna. Sander was the captain. On 4 October 2010 a vessel named the Mayhem of Eden,[4] under the control of Elfar and with Golding aboard, left Port Macquarie Marina where it had been moored. Elfar had often been on the Mayhem when it was moored at Burraneer Bay in September 2010, and arranged and paid for work done on it. Elfar had paid for mooring and fuel at the Port Macquarie Marina. The Mayhem next made landfall on 12 October, at Scarborough marina.[4]Referred to in these reasons as “the Mayhem”. On 7 October 2010, the Australian Federal Police (AFP) received information that a vessel carrying a large quantity of narcotics was sailing towards Australia in order to meet another vessel, to which it would transfer its cargo at sea. The information was provided by the Drug Enforcement Agency (DEA), a law enforcement agency of the United States government. The DEA informed the AFP that this rendezvous was expected to occur at a position, defined by certain coordinates, on the evening of 8 October 2010. On the basis of that information, the AFP, together with the Australian Customs and Border Protection Service, conducted surveillance flights in the region of the anticipated rendezvous. On the night of 8 October 2010, one of these aircraft identified two vessels approximately two miles apart and sailing towards each other. At about 2.00 am 9 October 2010, an aircraft relocated the two vessels, which were then about a quarter of a nautical mile apart and not far from where they had been seen earlier. Digital imagery identified one of the vessels as the Mayhem. A large amount of cocaine was transferred from the Edelweiss to the Mayhem, no doubt using the tender attached to the Mayhem. Elfar and Golding were involved in that transfer. The location of the Mayhem was tracked by the AFP and other agencies as it sailed towards the Australian coast until, early on the morning of 12 October 2010, it was observed entering Moreton Bay and mooring off the Scarborough Marina. On the morning of 12 October 2010, Elfar and Golding were seen by AFP and Customs officers leaving the Mayhem in a tender to go to the marina, where they booked a berth. The Mayhem entered the Scarborough boat harbour and tied up at the berth. Half an hour later, Elfar and Golding were observed as they disembarked. Each was carrying a large, heavy duffel bag. They left the marina by taxi, after placing the two bags in the boot.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In Nguyen and Pham Johnson J (with whom Macfarlan JA and Hulme J agreed) said, in relation to the relevant sentencing principles:[39][39]Nguyen and Pham at [72]; internal citations omitted.“[72]The following general propositions emerge from the authorities:(a)the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation;(b)problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court;(c)it is the criminality involved in the importation which must be identified — the fact that another person may be characterised as the “mastermind” does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility;(d)although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported;(e)the statements by the High Court in Wong v The Queen; Leung v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar;(f)as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit;(g)the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case;(h)the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment;(i)involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served;(j)the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence; good character is not an unusual characteristic of persons involved in drug importation;(k)where offenders are not young (Mr Nguyen was 42 years’ old and Ms Pham was 32 years’ old), the immaturity of youth cannot be claimed as a factor bearing upon their transgressions.”Consideration of parity