R v FBK; Ex parte

Case [2025] QCA 115

SUPREME COURT OF QUEENSLAND

CITATION:

R v FBK; Ex parte Director of Public Prosecutions (Cth) [2025] QCA 115

PARTIES:

R
v
FBK
(respondent)
EX PARTE DIRECTOR OF PUBLIC PROSECUTIONS (Cth)
(appellant)

FILE NO/S:

CA No 224 of 2024
SC No 775 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Director of Public Prosecutions (Cth)

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 16 December 2019 (Ryan J)

DELIVERED ON:

24 June 2025

DELIVERED AT:

Brisbane

HEARING DATE:

4 April 2025

JUDGES:

Bond and Bradley JJA and Cooper J

ORDER:

Upon the solicitors for the respondent undertaking to provide the explanation set out in paragraph [72] of these reasons for judgment:

1.   The appeal is allowed.

2.   The sentences imposed on 16 December 2019 are set aside and in lieu thereof the respondent is sentenced to:

a.   imprisonment for 15 years on Count 1;

b.     imprisonment for 3 years on Count 2.

(the substituted sentences)

3. The single non-parole period fixed on 16 December 2019 is set aside, and in lieu thereof, a single non-parole period of 8 years and 6 months is fixed under s 19AB of the Crimes Act 1914 (Cth).

4.   The substituted sentences are both to be served concurrently and are, by order, directed to commence on 16 December 2019.

5.   537 days spent in presentence custody between 27 June 2018 and 15 December 2019 is declared as time already served under the substituted sentences.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the respondent pleaded guilty to one count of conspiracy to import a commercial quantity of a border controlled drug and one count of dealing with proceeds of crime worth $10,000 or more – where the respondent gave an undertaking to cooperate with law enforcement agencies including by providing evidence as a witness for the Crown in proceedings brought against other alleged offenders – where, because of that undertaking, the trial judge substantially reduced the respondent’s sentence under s 16AC of the Crimes Act 1914 (Cth) – where the respondent did not give full and truthful evidence about certain matters in accordance with his undertaking at the trial of the other alleged offenders – where the trial judge at the trial of the other alleged offenders declared the respondent a hostile witness and granted the Crown leave to cross-examine him on parts of a statement he had provided to law enforcement agencies pursuant to the undertaking and about which he had given evidence at the trial which was inconsistent with the statement – where pursuant to s 16AC(3) of the Crimes Act 1914 (Cth) the Crown appealed against the inadequacy of the reduced sentence imposed on the respondent on the basis of his partial failure to cooperate in accordance with his undertaking – where the respondent accepted that he had partially failed to cooperate in accordance with his undertaking but contended that the Court should not exercise its…

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Details
AGLC
R v FBK; Ex parte [2025] QCA 115
Case
[2025] QCA 115
Decision Date

CaseChat Overview and Summary

The case of R v FBK; Ex parte involved the respondent, a citizen of Papua New Guinea, who had pleaded guilty to conspiracy to import a commercial quantity of a border controlled drug and dealing with proceeds of crime worth $10,000 or more. The respondent had given an undertaking to cooperate with law enforcement agencies, which led the trial judge to substantially reduce his sentence under section 16AC of the Crimes Act 1914 (Cth). However, the respondent did not provide full and truthful evidence in accordance with his undertaking during the trial of other alleged offenders. This partial failure to cooperate led the trial judge to declare the respondent a hostile witness and grant the Crown leave to cross-examine him on inconsistent statements. The Crown subsequently appealed against the inadequacy of the reduced sentence imposed on the respondent on the basis of his partial failure to cooperate.

The legal issues the court was required to decide included whether the respondent's partial failure to cooperate constituted a serious breach of his undertaking, and if so, whether the Court should exercise its discretion to substitute an increased sentence. The court had to consider the character and consequences of the respondent's partial failure to cooperate, as well as the impact on the trial of other alleged offenders. The court had to balance the respondent's initial failure to cooperate with the eventual and voluntary forthcoming cooperation, and decide whether the original sentence had become inadequate.

The court concluded that the respondent's partial failure to cooperate was deliberate, as evidenced by his ability to give evidence consistent with his statement on voir dire. The court found that the respondent's conduct made the trial of other alleged offenders longer and more complex, with attendant cost to the community. The court also noted that the respondent's partial failure to cooperate weakened the Crown's case and gave the jury reason to question his credibility. The court held that the original sentence had become inadequate by reason of the respondent's partial failure to cooperate in accordance with the undertaking to cooperate. The court exercised the discretion under section 16AC(4)(b) of the Act to increase the respondent's sentence.

The final orders of the court were as follows: the appeal was allowed, the sentences imposed on 16 December 2019 were set aside and in lieu thereof the respondent was sentenced to imprisonment for 15 years on Count 1 and imprisonment for 3 years on Count 2, a single non-parole period of 8 years and 6 months was fixed under section 19AB of the Crimes Act 1914 (Cth), the substituted sentences were to be served concurrently and were directed to commence on 16 December 2019, and 537 days spent in presentence custody between 27 June 2018 and 15 December 2019 was declared as time already served under the substituted sentences.

Orders

Orders of the court

Upon the solicitors for the respondent undertaking to provide the explanation set out in paragraph [72] of these reasons for judgment:

1. The appeal is allowed.

2. The sentences imposed on 16 December 2019 are set aside and in lieu thereof the respondent is sentenced to:

a. imprisonment for 15 years on Count 1;

b. imprisonment for 3 years on Count 2.

(the substituted sentences)

3. The single non-parole period fixed on 16 December 2019 is set aside, and in lieu thereof, a single non-parole period of 8 years and 6 months is fixed under s 19AB of the Crimes Act 1914 (Cth).

4. The substituted sentences are both to be served concurrently and are, by order, directed to commence on 16 December 2019.

5. 537 days spent in presentence custody between 27 June 2018 and 15 December 2019 is declared as time already served under the substituted sentences.

Background

Background to the litigation

But to recognise that a partial failure to cooperate may be characterised as serious regardless of the outcome of the trial of a co-offender does not amount to a rejection of the proposition that the Court’s assessment of the seriousness of the failure to cooperate, in exercising the resentencing discretion, can involve consideration of the consequences of the failure to cooperate in a broader sense. If that had been the point the Court was making in Wang, it is surprising that, despite citing the decision in Haunga in the same passage in which the statement was made, their Honours did not directly address the reasoning set out at [14] above. I do not read anything said by the Court in Wang as a rejection of that reasoning.The facts on which the respondent was sentenced The respondent is a citizen of Papua New Guinea (PNG). At the time of the offending, he was living in PNG and was employed in the freight logistics industry. Between April 2016 and his arrest in June 2018, the respondent conspired with PKO and XDK to import a commercial quantity of a border controlled drug (cocaine) into Australia from South America via PNG. From PNG, the cocaine was to be transported across the Torres Strait into far north Queensland using a small watercraft. The total quantity of cocaine the conspirators intended to import was approximately 600 kg. The respondent acted at the direction of PKO, who was responsible for facilitating the transportation of the cocaine from South America to Australia. The respondent’s role included:(a)providing advice to PKO about transportation and importation processes in PNG, regulatory requirements for importing goods, and the costs associated with the importation of goods into PNG;(b)registering fictitious business entities that were used in connection with the importation of the cocaine;(c)using his local knowledge and business contacts to facilitate the clearance of the container that contained the cocaine through PNG Customs;(d)using money provided to him by PKO to make payments in PNG relating to the importation and clearance of the container that contained the cocaine, including paying bribes to members of PNG Customs and the National Agriculture and Quarantine Inspection Authority in order to avoid standard freight inspection and treatment requirements; and(e)retrieving the cocaine from the container once it cleared PNG Customs and arranging for its transportation from Port Moresby to Daru Island in the PNG Western Province, and from there by watercraft across the Torres Strait into Australia. In order to communicate and make plans regarding the intended importation of the cocaine without being detected, the respondent and PKO would correspond using the encrypted communication platform WhatsApp and would access encrypted ProtonMail email accounts and leave draft emails for the other to review and add to. To avoid detection by law enforcement, the respondent and PKO used coded speech in their communications to refer to persons and items involved in, or associated with, the attempted importation. Relevantly for the purposes of this appeal, those coded terms included the expressions “gold” or “AU” to refer to cocaine.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondent submits that in those circumstances, if this Court exercises the discretion to resentence, it will be punishing him for his initial failure to comply with his undertaking. That outcome would not reflect the extent to which the offered cooperation was eventually and voluntarily forthcoming.Consideration While it is true that the respondent’s failure to cooperate in accordance with his undertaking was temporary, I cannot accept the respondent’s submission that this Court, if it was to exercise the discretion to remove part of the benefit afforded to him on account of his future cooperation, would be punishing him for his partial failure to cooperate. That submission ignores both the character and the consequences of his partial failure to cooperate. As to the character of the partial failure to cooperate, I accept the Director’s submission that the respondent’s failure to give full and truthful evidence was deliberate. That seems clear from his ability to give evidence consistent with his statement on voir dire. I respectfully agree with the conclusion Crowley J reached in deciding the hostile witness application, namely that the respondent’s apparent change of heart and his willingness to give evidence consistent with his statement was because he had concluded there was a risk that he might be seen as not fully complying with his undertaking. That suggests a degree of calculation in the respondent’s decision as to the extent he was prepared to cooperate in accordance with his undertaking. As for the consequences of the partial failure to cooperate, it is relevant here (as it was in Haunga[19] and Dehghani[20]) that the respondent’s conduct made the trial of PKO and XDK longer and more complex than it otherwise would have been, with attendant cost to the community.[19]Haunga, 294 [21].[20]Dehghani, 351 [53]. Just as importantly, the result of that conduct was that, after the respondent had been declared a hostile witness and was cross-examined by the prosecutor, the jury had heard two inconsistent accounts from him on issues that were important to the Crown’s case. Further, it would have given the jury reason to question the respondent’s credibility. As Mr Bonasia, who appeared as counsel for the respondent, frankly conceded during argument, this weakened the Crown’s case on the issues that were the subject of his partial failure to cooperate. The respondent’s subsequent change of heart upon being made aware of the hostile witness application could not undo that damage. Because the respondent’s partial failure to cooperate both increased the cost of PKO and XDK’s trial, and weakened the Crown case at that trial, it reduced the value of the evidence he gave pursuant to his undertaking and for which he had received a benefit upon being sentenced. In those circumstances, I am satisfied that the original sentence has become inadequate by reason of the respondent’s partial failure to cooperate in accordance with the undertaking to cooperate and that this Court should exercise the discretion under s 16AC(4)(b) of the Act to increase the respondent’s sentence.