R v Gaby

[2018] QDC 245

DISTRICT COURT OF QUEENSLAND

CITATION: 

R v Gaby [2018] QDC 245

R

(Applicant)

v

SCOTT NICHOLAS GABY

(Respondent/Defendant)

FILE NO/S:

2821/17

DIVISION:

Criminal

PROCEEDING:

Fact Finding on Sentence

ORIGINATING COURT: 

District Court at Brisbane

DELIVERED ON:

28 November 2018

DELIVERED AT:

Brisbane

HEARING DATE: 

26-27 November 2018

JUDGE:

Koppenol DCJ

ORDER:

Sentencing to proceed on factual basis of:
(a) trafficking period from 13 May 2015 to 22 June 2015, and
(b) quantities of cannabis not exceeding 2lbs per week

CATCHWORDS:

CRIMINAL LAW - SENTENCING – DISPUTED FACTS – FACT FINDING – PROCEDURE - EVIDENCE – STANDARD OF PROOF – where defendant pleaded guilty to carrying on business of unlawfully trafficking in dangerous drug cannabis – where length of trafficking period disputed – where quantity of cannabis disputed – whether standard of proof akin to criminal standard – whether applicant’s factual allegations established

Evidence Act 1977, s 132C(3), (4)

Briginshaw v Briginshaw (1938) 60 CLR 336, referred to

COUNSEL:

D Finch for the Applicant

A Kimmins for the Respondent/Defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Applicant
Lawler Magill for the Respondent/Defendant

1. The respondent/defendant pleaded guilty to 1 count of carrying on the business of unlawfully trafficking in the dangerous drug, namely cannabis. The wording of the count alleged that the trafficking period was between 30 May 2013 and 9 July 2015.

1. The sentencing was adjourned to next week pending the factual determination of 2 questions: the actual period of the trafficking and the quantity of cannabis involved.

1. In a sentence where the factual basis is challenged, the Court engages in the fact-finding exercise set out in section 132C of the Evidence Act 1977. The sentencing judge may act on the challenged allegation of fact if “satisfied on the balance of probabilities that the allegation is true”. The degree of satisfaction required “varies with the circumstances, adverse to the person being sentenced, of finding the allegation to be true”: see section 132C(3), (4). That was also explained by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, 360-367.

1. Mr Kimmins of counsel for the defendant submitted that because of the serious penalty ramifications for his client, the degree of satisfaction was one approximating or at least approaching the criminal standard. While Mr Finch of counsel for the applicant accepted that a “high standard, above the balance of probabilities” applied, I think that Mr Kimmins’ submission that the standard is akin to the criminal standard is correct. A factual finding adverse to the defendant will certainly result in a much heavier penalty for him. That is because lengthy periods of trafficking in large quantities of cannabis attract significantly heavier penalties than cases involving relatively short periods of trafficking in much smaller quantities.  

1. Mr Finch submitted that the defendant should be sentenced on the basis that the trafficking period was from 25 January 2015 to 5 June 2015 and that the quantities involved were between 160 and 280 pounds weight (lbs) per week.

1. In support of that submission, the applicant principally relied upon (a) a 9-page summary of telephone intercept material (Ex 1), and (b) the in-court evidence of Mr Graham John Alexander.

1. Exhibit 1 relevantly summarised the effect of numerous telephone conversations and SMS exchanges between the defendant and other persons between 13 May 2015 and 22 June 2015. Mr Finch submitted that Ex 1 established that the defendant had a sophisticated and organised business which dealt in wholesale amounts of cannabis with a well-established customer base which had a deep understanding of the defendant’s business practices.

1. Mr Finch also strongly relied upon the evidence given by Mr Alexander who said that from January to June 2015, he made twice-weekly deliveries to the defendant of between 80lbs and 140lbs of cannabis. The cannabis was sourced interstate and he worked with his son in arranging and performing the deliveries. That evidence, Mr Finch submitted, was consistent with and supported by the telephone intercept summary.

1. However, as Mr Kimmins submitted:

(1)    an analysis of the Ex 1 summary revealed only 2 regular customers (S and M) and 2 irregular customers (W and R), and in any event, none of those people were called to give evidence (about regularity or quantity);

(2)   over the 7-week period covered in Ex 1, the intercepts showed that although various customers had contacted the defendant, only 14lbs of cannabis was mentioned—and that was in transactions of 2lbs, 2lbs, 2lbs, 1lb, 2lbs and 5lbs, on a total of 6 separate days;

(3)   Mr Alexander’s unsupported evidence of frequency and quantities should be treated with extreme caution because (a) he was a serious criminal who had served 15 years in prison for murder and various other periods for dishonesty and drug offences, and (b) he was an accomplice in the defendant’s drug trafficking who had reasons to falsely implicate the defendant so as to receive a more lenient sentence himself and not be deported from Australia; and

(4)   despite Mr Alexander’s evidence of high turnover, there was no evidence that the defendant had profited financially or accumulated assets from the venture—something which would otherwise have been expected.

1. After closely examining all of the evidence, I accept Mr Kimmins’ submission that the applicant has not established its case on the applicable high standard.

1. However, I am satisfied that the applicant has established that:

(1)    the relevant period that the defendant trafficked in cannabis was from 13 May 2015 to 22 June 2015 (as set out in Ex 1); and

(2)    although such trafficking was undoubtedly a commercial enterprise, the evidence does not support a conclusion that quantities of cannabis in excess of 2lbs per week were involved.

1. Mr Finch submitted that an inference could be drawn from the evidence that the trafficking period extended back to early 2015 and the quantities of cannabis were much greater than 2lbs per week. Even if that were so, it was not said that (a) that was the only rational inference that could be drawn from the circumstances, or (b) that inference so overcame any other possible inference as to leave no reasonable doubt that the former inference was made out. Consequently, the applicant’s submission does not overcome the problems with Mr Alexander or the limited assistance provided by Ex 1.

1. Next week’s sentencing will proceed on the factual basis as set out in paragraph [11].