R v Gordon

[2016] QCA 10

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gordon [2016] QCA 10

PARTIES:

R
v
GORDON, Stuart Raymond McFarlan
(applicant)

FILE NO/S:

CA No 84 of 2015
SC No 815 of 2014
SC No 817 of 2014
SC No 175 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 1 May 2015

DELIVERED ON:

5 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

28 September 2015

JUDGES:

Fraser and Gotterson and Philip McMurdo JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –  APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to numerous offences, including unlawful trafficking in cannabis and methylamphetamine – where the applicant pleaded guilty to 14 counts on Indictment 815 of 2014, one count on Indictment 817 of 2014, and a summary charge on 1 May 2015 at the Supreme Court at Brisbane – where the applicant was sentenced to eight years’ imprisonment on Count 1, ten years’ imprisonment and a serious violent declaration was made on Count 2, and two years’ imprisonment on Count 3 – where the applicant was not punished for Counts 4 to 14 – where the applicant filed an application for leave to appeal sentence – where the sole ground of appeal was that the sentence was manifestly excessive – where it was contended that the learned sentencing judge failed to place sufficient weight on one, or more in combination of the applicants age at the time of his offending, the absence of violence in the applicant’s offending, and an absence of an extravagant lifestyle or accumulation of assets reflective of a lack of business sophistication on the part of the applicant – whether the sentence was manifestly excessive

Corrective Services Act 1992 (Qld), s 182
Crimes (Currency) Act 1981 (Cth), s 9(1)(a)
Drugs Misuse Act 1986 (Qld)
Penalties and Sentences Act 1992 (Qld), s 161A

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v Feakes[2009] QCA 376, considered
R v Galeano [2013] 2 Qd R 464; [2013] QCA 51, distinguished
R v Rodd; Ex parte Attorney-General (Qld)[2008] QCA 341, considered

COUNSEL:

D H James for the applicant
D L Meredith for the respondent

SOLICITORS:

Lawler Magill for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. FRASER JA:  I agree with the reasons for judgment of Gotterson JA and the order proposed by his Honour.

2. GOTTERSON JA:  On 1 May 2015, the applicant, Stuart Raymond McFarlan Gordon, pleaded guilty to 14 counts on Indictment 815 of 2014,[1] one count on Indictment 817 of 2014,[2] and a summary charge. Counts 1 and 2 on the multi-count indictment alleged unlawful trafficking in cannabis and methylamphetamine respectively during the period 31 July 2009 to 8 April 2014 (cannabis) and the period 31 July 2009 to 14 April 2014 (methylamphetamine), at Marcoola and elsewhere. Count 3 alleged possession of a relevant thing, a pill press, between 8 August 2010 and 14 August 2010, also at Marcoola and elsewhere in Queensland. The applicant was convicted and sentenced to eight years’ imprisonment on Count 1. On Count 2 he was convicted and sentenced to ten years’ imprisonment and a serious violent offence declaration was made.[3]  For Count 3 he was convicted and sentenced to two years’ imprisonment.

   [1]AB2-4

   [2]AB8.

   [3]As was required by s 161A of the Penalties and Sentences Act 1992 (Qld) and s 182 of the Corrective Services Act 2006 (Qld).

3. Counts 4 to 14 on the multi-count indictment also alleged an array of offences against various provisions of the Drugs Misuse Act 1986 (Qld). These counts were for unlawfully producing the dangerous drug cannabis in excess of 500 grams (Count 4) and the dangerous drug methylamphetamine in excess of 200 grams (Count 5); for unlawful possession of the dangerous drug cannabis in excess of 500 grams (Count 6) and the dangerous drug methylamphetamine in excess of two grams (Count 7); for unlawful possession of relevant things (Count 8) and of a relevant substance, pseudoephedrine (Count 9); for possession of things used in connection with the commission of the crime of producing a dangerous drug (Count 10); for unlawful possession of a prohibited combination of items (Count 11); for unlawful possession of the dangerous drug methylamphetamine (Count 13); and for possession of a sum of money obtained from trafficking in a dangerous drug, knowing it to have been so obtained from trafficking (Count 14).

4. Counts 4 and 5 alleged offending at Kin Kin between 1 January 2013 and 13 April 2014 and between 31 December 2013 and 14 April 2014 respectively. Counts 6 to 11 alleged offending at Kin Kin on 7 April 2014. The offending alleged in Counts 13 and 14 was at Pacific Paradise on 13 April 2014. Count 12 on the indictment alleged an offence against s 9(1)(a) of the Crimes (Currency) Act 1981 (Cth), in possessing counterfeit money, knowing it to be counterfeit money, at Mooloolaba on 8 April 2014.

5. The single count on the other indictment alleged that on 5 April 2014 at Maroochydore, the applicant unlawfully used a motor vehicle without the consent of the person in lawful possession of it.  The summary charge was for a similar offence committed between 31 October 2013 and 9 November 2013 at Fortitude Valley.

6. For Counts 4 to 14 on the multi-count indictment, the single count on the other indictment and the summary offence, the applicant was convicted.  He was not further punished.

7. On 4 May 2015, the applicant filed an application for leave to appeal against sentence.  The single ground of appeal is that the sentence is manifestly excessive.  The applicant submits that a sentence of nine years’ imprisonment with a parole eligibility date set after five or six years in custody should have been imposed.[4]

   [4]Applicant’s Outline of Argument, paragraph 4.

   Circumstances of the offending

8. The following summary of the applicant’s offending is drawn from the Schedule of Facts[5] which was tendered at sentence without objection.  The Schedule discloses facts detected during police operations and facts admitted by a person targeted during the operations.  The applicant had drug related contact with this person and two other targets of the operations.

   [5]Exhibit 1: AB54-66.

9. From late 2009, the applicant was involved in trafficking methylamphetamine and cannabis throughout Queensland.  Initially, he would source methylamphetamine in lots between four ounces and a full pound and then cut it with Epsom salts or glucose powder prior to selling it.  He would sell methylamphetamine from his house in amounts as small as one gram up to eight ounce lots.  He would also deliver the drugs if the sale involved a smaller amount only.

10. The applicant participated with others in purchase and supply of drugs ventures.  He would make buying trips to Sydney and participate in the packing of drugs for on-supply.  For distant supply destinations, such as Darwin, a courier was engaged.  Drugs were on-supplied on credit.  There were instances of non-payment in which the applicant was involved in unsuccessful recovery attempts.

11. In August 2010, the applicant hired a trailer at Picton near Sydney.  He used it to transport a red “home-made” pill press to the home of one of his co-venturers near Mooloolaba.  The pill press was for the production of methylamphetamine.  He secreted it in the boot of a car placed in the trailer for the journey.  He and the co-venturer buried the pill press for about a month.  The applicant dug it up and tested that it was operational.  He claimed to others that he sold it.  On one occasion, he said that the sale price was $200,000; on another occasion, $270,000.  He claimed to have been paid $40,000 only and was owed the balance of the sale price.

12. During a police operation carried out at the Sunshine Coast from 1 June 2011, telephone interceptions of phone calls of two targets, described as “prolific drug traffickers”, revealed that the applicant had contact with one of them on 32 occasions over a four month period in the first‑half of 2012, and with the other, on 23 occasions over a three month period in that half of 2012.  The contacts in the four month period were for the applicant to arrange purchase of methylamphetamine.  In the case of the three month period, they were to arrange the purchase of methylamphetamine and the sale of cannabis.  The applicant was supplying cannabis in large quantities to this target.

13. The applicant began his trafficking in cannabis in 2009.  Initially, he sourced the cannabis from Victoria.  He and an associate engaged an intermediary to pick up crates of cannabis which had been delivered to a Brisbane industrial address.  The intermediary would transport the cannabis to an address at Kin Kin.  Each crate contained between 20 and 50 pounds of cannabis, packed in one pound sealed cryovac bags.  The applicant would unpack the bags from the crates.

14. In December 2010, the Victorian supplier was on the Sunshine Coast which he visited regularly in the interests of customer relations.  He called in on a property, the subject of a search warrant.  He was driving the applicant’s car.  Police detected the presence of a dangerous drug.  The supplier was charged and in April 2012 pleaded guilty to a possession count in the Maroochydore District Court.  He was sentenced to 18 months’ imprisonment suspended with an operational period of three years.

15. In 2013, the intermediary, who became indebted to the applicant for $20,000, helped the applicant by setting up a hydroponic cannabis production facility at the Kin Kin address.  His help was to pay off the debt.  Cannabis was successfully grown at the facility.  Three crops of 16 pounds, 36 pounds and 11 pounds respectively, were harvested prior to police intervention in April 2014.  At that point, the cannabis production ceased.

16. At the start of 2014, the applicant expanded his activities to include production of methylamphetamine.  He acquired a large amount of illicit drug laboratory equipment for production of the drug at Kin Kin.  The applicant was in charge of production.  He and his associates would cook methylamphetamine twice a week, producing up to half a kilogram at each time.  Each cook would take two full days.

17. The applicant told associates that he would produce a kilogram of ice using litres of methylamphetamine oil.  Each litre cost $100,000.  He claimed he was able to make $335,000 from each production run.  He said that he sometimes on-sold the oil for $125,000 to $135,000 per litre.

18. Police executed a search warrant at the Kin Kin address on 7 April 2014.  The cannabis and methylamphetamine production facilities, together with quantities of raw materials for production and produced drugs, were discovered.  The latter included 70.92 kilograms of cannabis with a street value of about $703,000.

19. On 13 April 2014, police executed a search warrant at a residence at Bli Bli.  A “tick list” relating to money owed to the applicant for dangerous drugs supplied by him, was found.  The tick list showed $258,000 owed to the applicant by a range of individuals.  Later, the applicant told an associate in jail that he had outstanding debtors of $270,000.

20. On the same day, police executed another search warrant at a residence at Pacific Paradise.  The applicant was apprehended.  A quantity of 1.753 grams of pure methylamphetamine was found as was a bum bag containing $50,000 in Australian currency.  A roll of 51 Australian $1 notes that appeared to be counterfeit, were discovered by cleaners at a resort at Mooloolaba on 8 April 2014.  Circumstances associated the applicant with possession of these notes.

    The applicant’s history of offending

21. The applicant’s participation in drug trafficking continued over the periods alleged, notwithstanding his apprehension for drug-related activity during them.  In May 2011, he was convicted of possession of dangerous drugs and of utensils for drug production offences at the Maroochydore Magistrates Court.  He was fined $2,500.  The applicant was arrested in May 2012 and subsequently charged with trafficking in dangerous drugs.  He was released on bail on 21 June 2012.  The charges in relation to the pill press arose originally in 2012.

22. Despite the conviction of the Victorian supplier and his own brushes with the law during the trafficking periods, the applicant continued his drug production and supply activities.  Not only did he do that, but he also markedly expanded them as well.  It remains to note that prior to the trafficking periods alleged, the applicant had been fined $1,500 in January 2009 for production and possession of drug offences.  As well, he had been before the Magistrates Court for some minor offending carried out in 2005.

    The applicant’s personal history

23. The applicant was born in 1988.  He was 21 years old when the trafficking activities for which he was sentenced began; and 26 years old at sentence.  He started using cannabis when he was 12 to 13 years old and methylamphetamine when he was 16 to 17 years old.  He is the father to two children and is in a relationship with their mother.

    Sentencing remarks

24. The learned sentencing judge sentenced the applicant having regard to the circumstances of his offending, his record of prior offending, and the personal circumstances to which I have referred.  She regarded the trafficking business as consistent only with one conducted with a profit motive.  She expressly sentenced on the basis of the size of the applicant’s operations and that he was a wholesaler who was also very successful at producing the drugs that he sold at that level.[6]

    [6]AB48 ll11-13.

25. Her Honour explained how she arrived at the sentences she was about to impose in the following way:

    “The problem with having to sentence you, Mr Gordon, is that your activities were so serious that, consistent with the comparable authorities that both Counsel have provided me, if you hadn’t pleaded guilty, you were looking at a sentence over 10 years imprisonment, and the hardest decision to make about your sentencing and the one that I grappled with during the submissions of the Prosecutor and your Counsel was whether, giving some allowance for the mitigating features that I’m going to mention in a moment for your sentencing, I could, consistent with the guidance that’s given by authorities where there’s been sentencing for comparable criminal activity – could I come with a head sentence that is under 10 years.  I decided that I couldn’t, and I am very aware that the point of 10 years makes a difference to how much of the sentence that you serve before you’re eligible for parole, but even knowing that you would have to serve eighty per cent of the sentence, I do not consider that a sentence of less than 10 years would reflect the seriousness of your offending, even allowing for your youth, particularly at the commencement of the trafficking period, and that you are entitled to some credit for your pleas of guilty, which can only be given by reducing the head sentence if it’s a sentence that’s over 10 years.  I have given you credit for your guilty pleas, and that is reflected in the fact that I am not going to impose a sentence greater than 10 years.  I think, without your guilty pleas, you would have easily been sentenced to in excess of 10 years.

    And the most help that’s been given to me is by looking at the authorities of Rodd,[7] Galeano,[8] and Feakes.[9] Rodd was more serious than you – the offending and the other aspects of the offending, particularly the violence associated with the offence, but his sentence of 10 years imposed after an Attorney-General’s appeal reflects the fact that it was a sentence imposed after an appeal by the Attorney-General.  Both Feakes and Galeano did not have a trafficking period as long as you. Galeano was just over two years, and Feakes, I have mentioned, was seven months.  So even allowing for your youth, I have decided that the appropriate sentence, taking into account the period of the trafficking and its magnitude, notwithstanding that you didn’t make a lot of money from it, it was still of such significant size that, in all the circumstances, the appropriate sentence for count 2 is 10 years’ imprisonment.

    So the purpose of sentencing you, Mr Gordon, is to punish you in a way and to an extent that is just in all the circumstances.  For trafficking in schedule 1 and schedule 2 drugs of this magnitude, deterrence is a key feature of the sentencing process.  General deterrence to anyone else who’s tempted to engage in a commercial operation of the size that you have undertaken is important, but deterrence of you, as well, is also important.”[10]

    [7][2008] QCA 341.

    [8][2013] QCA 51; [2013] 2 Qd R 464.

    [9][2009] QCA 376.

    [10]AB50 l17 – AB51 l9.

    The ground of appeal

26. The applicant has concisely particularised the ground of appeal as one that contends that the sentence in manifestly excessive by reason of a failure on the part of the learned sentencing judge to place sufficient weight on one, or more in combination, of three “key” mitigating factors, namely:

    (a)the applicant’s age at the time of his offending;

    (b)an absence of violence in his offending; and

    (c)an absence of an extravagant lifestyle or accumulation of assets reflective of a lack of business sophistication on the part of the applicant.

    Factors (b) and (c) are said to be matters which serve to contrast the applicant’s case with the decisions to which the learned sentencing judge referred as comparable.[11]  The applicant’s case is not that these factors were not taken into account.  It is one of insufficiency in taking them into account.  In terms of the categories of appealable error in the exercise of a judicial discretion articulated in House v The King,[12] the complaint by the appellant must be seen as truly one of an inferred error in exercising the sentencing discretion.  That is to say, the sentence is manifestly excessive such as to bespeak error on the part of the learned sentencing judge.

    [11]Applicant’s Outline of Argument paragraph 6.

    [12](1936) 55 CLR 499 at 505.

27. Since two of the factors are referenced to the decisions relied on by her Honour for comparative purposes, Rodd, Feakes and Galeano, it is appropriate first to summarise briefly the circumstances of those cases with particular reference to facts which are pertinent to those factors.

28. In Rodd, on an Attorney-General’s appeal, a sentence of nine years for trafficking in methylamphetamine was set aside.  A sentence of 10 years was imposed and a serious violent offence declaration was made.  Rodd was 29 to 30 years old when he offended.  His trafficking in methylamphetamine persisted over two years.  It was relentless as he moved from address to address.  He offended while on bail.  The production levels were high.  The supply was at the wholesale level.  The trafficking was profitable, cash-rich and the source of an extravagant lifestyle.  It was attended by gangster‑type actual and threatened violence.  The only mitigating circumstances were the offender’s drug addiction to methylamphetamine and his plea of guilty.  The sentence imposed on appeal matched that which was sought by the Attorney.  Both de Jersey CJ and White JA expressly stated that a sentence of 12 to 13 years’ imprisonment would have been appropriate.[13]

    [13]Reasons [25], [28].  McMeekin J agreed with the Chief Justice.

29. The offender in Feakes pleaded guilty to a count of trafficking in the dangerous drugs cocaine, methylenedioxymethamphetamine (MDMA) and methylenedioxyethylamphetamine (MDEA), one count of producing the dangerous drug cannabis sativa in excess of 500 grams, and one count of possessing quantities of the drugs that I have mentioned.  He was sentenced to 10 years’ imprisonment, the consequence of which was that he was required to serve eight years of it before becoming eligible for parole.  The offender’s application for leave to appeal against the sentence as manifestly excessive was refused.  He was 30 and 31 years old at the time of offending.  The trafficking count was based on 11 particularised occasions over a seven month period.  Those occasions involved supplies in total of 32.052 grams of cocaine, 329.889 grams of MDMA in about 5,000 tablets and 109.744 grams of MDEA.  The production counts concerned an advanced hydroponic set up in which cannabis plants were cultivated.  A total weight of about five kilograms of plant material was found.

1. The offender occupied a position very high up in the drug enterprise chain.  In excess of $115,000 passed through his hands in the trafficking period.  The minimum financial benefit to him was estimated to be about $56,200.  He had a modest criminal history for drug related offending for which he had been either fined or placed on a good behaviour bond.  It is of note that McMurdo P observed that the decisions to which the Court had been referred, indicated that for mature offenders, trafficking on this scale normally attracted a sentence of 10 to 12 years’ imprisonment on a plea of guilty, but younger offenders, without a significant criminal history and with excellent rehabilitation prospects, might be sentenced to eight to nine years.[14]

   [14]Reasons [33].

2. In Galeano, the offender, who was between 47 and 49 years old when he offended, had his sentence of 10 years reduced to nine years’ imprisonment on appeal.  He had a not inconsiderable criminal record involving drug offending.  This offender had pleaded guilty to trafficking over a period longer than two years.  He carried on a substantial operation selling significant quantities of methylamphetamine and, on occasions, cannabis and MDMA.  A financial analysis indicated that drugs with an unsubstantiated value of $390,000 were sold by the offender over the period in the count.  The observation by McMurdo P as to the duration of sentence for mature offenders on a large scale was noted.[15]  In that case, a reduction on appeal of the sentence was regarded as warranted in order to make appropriate allowance for two mitigating circumstances: the offender’s cooperation with police which was of a moderate order; and the fact that he was injured during his apprehension, the injuries being both physical and psychological.

   [15]Per Gotterson JA at [31], McMurdo P agreeing.

3. I now turn to the submissions advanced for the applicant with respect to the factors on which he relies.

4. Applicant’s age: The learned sentencing judge referred twice in her sentencing remarks to the applicant’s age when he offended.[16]  In the second reference, she said that allowance was being made for his youth.  However, the allowance given was tempered by the duration and scale of his offending.  The applicant submits that greater weight should have been placed on his age at the time when the trafficking began (21 years) and his immaturity.[17]

   [16]AB48 ll35-37; AB50 l44.

   [17]Applicant’s Outline of Argument, paragraph 12.

5. Absence of violence: At the forefront of the applicant’s submissions is a contrasting of not only his age with that of the offender in Rodd, but also the absence of violence from his offending.  In Rodd, the sentencing judge had noted that the offender used violence and threats of violence to control and manipulate his minions.  He used violence to make others confess to crimes they had not committed and absolve him from responsibility and also to make them purchase items in their names so as to obscure money he was making from trafficking.  He threatened to kill or wound individuals, including his drug debtors.  He carried a gun.  He also intimidated witnesses who had been summoned to appear before an Australian Crime Commission hearing.

6. The applicant’s conduct was not without threatened violence.  He sent aggressive messages to the intermediary, on one occasion mentioning bashing him.  This violence was markedly less than that exhibited by the offender in Rodd and, it was submitted, justified a shorter sentence.

7. Lack of business sophistication: The submissions for the applicant acknowledge that the tick list is indicative of the scale of his trafficking, but point to the amount owed, the uncollected debts in Darwin and the unpaid balance purchase price for the pill press as indicative of a lack of business sophistication present in the other three decisions where actual profit making was higher.[18]  When apprehended, the applicant did not have the trappings of wealth.

   [18]Applicant’s Outline of Argument, paragraphs 19, 20.

   Discussion

8. Adopting Rodd as a reference point, I accept that the applicant was nine years younger when his trafficking began.  Yet, his trafficking persisted over almost five years.  Rather than moderating with maturity, his scale of offending escalated as he aged.  I would also accept that the applicant’s offending was accompanied by much less violence and that that is significant for present purposes.

9. However, I would not accept that unsophistication in business method, for example, by selling on credit, is of any real significance for the purposes of sentencing.  The scale of production and sale, and the involvement in those steps engaged in by the applicant here, was at least comparable with that of the offender in Rodd.  The applicant’s business was potentially as profitable as Rodd’s.  That realised profits were not as great as they might have been is no basis for a measurable concession in sentence.  The need for deterrence, general and personal, is not lessened on that account.

10. It is significant that the learned sentencing judge regarded the offending in Rodd as “more serious” than that of the applicant.[19]  It is no less significant that the offending there would have warranted a sentence of 12 to 13 years’ imprisonment.  When that is taken into account, the decision in Rodd does not demonstrate manifest excessiveness in the applicant’s sentence.

    [19]AB50 l38.

11. Turning to Feakes, I note that the sentence imposed in the applicant’s case is at the lower end of the scale indicated by McMurdo P for mature offenders.  This is not a case for application of the exception for youthful offenders to which her Honour referred.  Here, the applicant had a relevant criminal history prior to trafficking.  His trafficking offending continued notwithstanding interactions with police.  In view of that, his rehabilitation prospects cannot be regarded as excellent.  This decision also does not demonstrate that the applicant’s sentence is manifestly excessive.

12. It remains to note that the two mitigating circumstances which justified the reduction of sentence for the offender in Galeano do not have counterparts in the applicant’s case.  In my view, that decision is of marginal relevance here on that account.

    Disposition

13. For these reasons, I am unpersuaded that the applicant’s sentence is manifestly excessive.  His application for leave to appeal it must therefore be refused.

    Order

14. I would propose the following order:

    1.           Application for leave to appeal against sentence refused.

15. PHILIP McMURDO JA:  I agree with Gotterson JA.