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 2011DIVISION:
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 dissentingORDERS:
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
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
Evidence
Evidence Before The Court
Full text does not contain this section.
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