R v Hill

Case [2020] QSC 309

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hill [2020] QSC 309

PARTIES:

R

v

HILL, Ryan Henry

(defendant)

FILE NO/S:

Indictment No 97 of 2019

DIVISION:

Trial Division

PROCEEDING:

Trial (Judge alone)

ORIGINATING COURT:

Supreme Court of Queensland at Cairns

DELIVERED ON:

2 October 2020

DELIVERED AT:

Cairns

HEARING DATE:

21, 22 September 2020

JUDGE:

Applegarth J

VERDICT:

Count 1 – Trafficking in dangerous drugs with circumstance of aggravation (serious organised crime): Not Guilty.

Count 1 – Trafficking in dangerous drugs: Guilty, as per plea and admissions.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – PROCEDURE – AGGRAVATING CIRCUMSTANCES – where the defendant was charged on indictment with trafficking in dangerous drugs with a serious organised crime circumstance of aggravation – where the defendant pleaded guilty to trafficking simpliciter but not guilty to the offence with the circumstance of aggravation – where the prosecution alleged that the defendant, his supplier and his supplier’s employee comprised a “criminal organisation” within the meaning of that term in s 161O of the Penalties and Sentences Act 1992 (Qld) – where the defendant obtained drugs from a supplier who did not control or direct the defendant’s trafficking business or share in its profit – where the relationship between the supplier and the defendant was essentially one of buyer and seller – whether the prosecution has proven beyond reasonable doubt that the defendant and his supplier (together with each’s respective employee) were a “group” – whether the defendant is guilty of the offence with the serious organised crime circumstance of aggravation

Acts Interpretation Act 1954 (Qld), s 14A, s 14B

Penalties and Sentences Act 1992 (Qld), s 161O, s 161P, s 161Q, s161R
Beckwith v The Queen (1976) 135 CLR 569; [1976] HCA 55, cited
R v A2; R v Magennis; R v Vaziri (2019) 373 ALR 214; [2019] HCA 35, cited

R v Hilton [2020] QSCPR 2, considered
R v Hill [2020] QSCPR 14, cited
R v Pentland [2020] QSC 231, cited
R v Stasiak and Turkyilmaz (2019) 2 QR 533; [2019] QSC 260, cited

COUNSEL:

N W Crane for the Crown

A J Glynn QC, with D James, for the defendant
SOLICITORS:

Office of the Director of Public Prosecutions (Queensland) for the Crown

Philip Bovey and Company for the defendant

  1. Between 1 March 2016 and 3 January 2018, the defendant (“Hill”) carried on the business of unlawfully trafficking in dangerous drugs.  He admits this and pleaded guilty to that offence.  However, he pleaded not guilty to the circumstance of aggravation alleged in count 1 of the indictment. 

  2. It alleges that:

    (a)he and certain others were participants in a “criminal organisation”; and

    (b)he “knew, or ought reasonably to have known, the offence was being committed in association with 1 or more persons who were, at the time the offence was being committed, or at any time during the commission of the offence, participants in a criminal organisation.”

  3. The issue for my determination in…

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Details
AGLC
R v Hill [2020] QSC 309
Case
[2020] QSC 309
Decision Date

CaseChat Overview and Summary

In the matter of R v Hill, the defendant was charged with trafficking in dangerous drugs with an aggravating circumstance of serious organised crime. Hill pleaded guilty to trafficking in dangerous drugs but denied the aggravating circumstance of serious organised crime. The prosecution contended that Hill, along with his supplier and the supplier’s employee, formed a "criminal organisation" as defined in the Penalties and Sentences Act 1992 (Qld). Hill argued that his relationship with his supplier was purely transactional, lacking any shared control or profit-sharing arrangement.

The court had to determine whether the prosecution proved beyond reasonable doubt that Hill, his supplier, and the supplier’s employee constituted a "group" and whether Hill was guilty of the offence with the serious organised crime circumstance of aggravation. The court examined the nature of the relationship between Hill and his supplier, focusing on whether it was merely a buyer-seller relationship or indicative of a more organised criminal structure.

In its reasoning, the court noted that while Hill’s supplier, Kanj, provided him with drugs, there was no evidence that Kanj controlled or directed Hill’s trafficking business or shared in its profits. The relationship was essentially transactional, with Hill purchasing drugs from Kanj without any shared control or profit-sharing arrangement. The court also highlighted the absence of evidence that Kanj was involved in activities beyond supplying drugs to Hill. Consequently, the court found that the prosecution failed to establish that Hill, his supplier, and the supplier’s employee formed a "criminal organisation" under the statutory definition.

The court acquitted Hill of the offence with the aggravating circumstance of serious organised crime, upholding his plea of not guilty to that charge. The conviction for trafficking in dangerous drugs remained.

Orders

Orders of the court

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Background

Background to the litigation

If an offender is convicted of a prescribed offence committed with a “serious organised crime circumstance of aggravation” then the Court must impose on the offender a term of imprisonment consisting of the “base component” and the “mandatory component” provided for in s 161R.The agreed or uncontested facts Many facts were agreed and these admissions became Exhibit 1. Oral evidence was given by:(a)Keiren Wilson, to whom Hill supplied drugs in wholesale quantities in Cairns; (b)Dharan;(c)Payet; and(d)Detective Sergeant Michael Vincent.Their evidence was not contentious.Hill’s trafficking business Between 1 March 2016 and 3 January 2018, Hill carried on the business of unlawfully trafficking in the dangerous drugs methylamphetamine, cocaine and 3,4-methylenedioxyamphetamine. His customer base included Keiren Wilson, Matthew Hilton and others. Evidence from Wilson gives an insight into Hill’s trafficking business, as do statements made by Hill in an interview with police on 30 August 2019. Hill supplied Wilson with methylamphetamine and MDA between October 2016 and October 2017. Sometimes he would supply those drugs monthly, sometimes fortnightly, and there were occasions when he possibly supplied them weekly. Hill would supply to Wilson in quantities that varied from four ounces through to a kilogram. He supplied a kilogram amount only once. Wilson would pay Hill the same amount per ounce, irrespective of the quantity being supplied. Hill fixed the price at $4,500 per ounce, but sometimes, if the quality was bad, the price would drop to $3,500. Hill supplied the drugs to Wilson on credit and would collect cash from him from time to time. Originally Hill supplied Wilson by Express Post through the Australia Post network. That method of delivery changed in about May 2017 after police intercepted certain drugs. Hill then arranged for the drugs to be delivered to Wilson through the Toll network. Hill and Wilson arranged their drug supplies by the use of a BlackBerry encrypted phone. The phone was set up to provide “peer-to-peer” messages and did not use a network like Telstra or Optus. One needed a password to use the BlackBerry and to access its email application. Hill initially asked Wilson whether he had a BlackBerry and when he was told that he did not, Hill arranged for a BlackBerry to be sent to an address of Wilson’s choosing. It arrived a few days after that conversation. With one exception, Wilson dealt only with Hill. When Wilson wanted to order drugs from Hill he would send him a message on the BlackBerry nominating the quantity of drugs and an address that Wilson chose, together with a false name for the recipient. Hill would then send these details to his supplier (Kanj). The drugs would be dispatched and Hill would provide Wilson with the parcel number (in the case of Australia Post) or the consignment note details (in the case of Toll). This would enable them to track the delivery online and to know when it arrived.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Hill said that during the period that Australia Post was used until June 2017 he was making a profit of $1,000 to $2,000 on each ounce he was selling. The profit depended on the prices that he could charge. He was acquiring drugs for around $6,500 to $7,000 and selling for $8,500 to $9,000 per ounce. Hill explained how the parcels were delivered. They were cryovaced and placed in a box which was then placed inside an Express Post satchel and the parcels would be tracked according to the number that came to them through the encrypted phone.The police operation Hill and others were identified as participating in drug trafficking. An operation was commenced which identified, amongst others, Hill, Wilson, Hilton, Dharan and Payet. Detective Sergeant Michael Vincent of the Major and Organised Crime Squad was the lead investigator. In addition to being a member of the Queensland Police Service, Detective Sergeant Vincent is a special member of the Australian Federal Police and he was conducting the AFP’s investigation of the operation which branched out into different States and Territories. The investigation suggested that Kanj was involved in the importation of drugs but this was never confirmed. The fact that he was close to an importer, if not an importer, was an inference drawn by Detective Sergeant Vincent based on the price that Hill was paying for methamphetamine. As noted, Kanj supplied other drugs to Hill. It was not until the close of the operation when a search warrant was executed at Dharan’s residence that the police identified that Kanj was also involved in supplying steroids to a variety of people and to a variety of locations within Australia. However, there is no evidence that he supplied steroids to Hill. As for methamphetamine, the only methamphetamine that the police identified during their investigations sourced by Kanj went to Hill. Detective Sergeant Vincent could not say whether Kanj supplied methylamphetamine to persons in addition to Hill. The police operation closed on 2 January 2018 when warrants were issued. Investigations continued during 2018. Police executed a warrant at Kanj’s address in Sydney in September 2018. About five days later he left the country and has not returned. It seems that he took up residence in Lebanon at some stage. His family left Australia in October 2018 and have not returned, except for the sale of a house in November 2018.The Sydney offenders Hill’s 30 August 2019 police record of interview and evidence he gave in this Court during an application for leave to set aside a plea explained the process by which he received drugs from Kanj and sent money to Kanj in payment, either through the Australia Post network or via the Toll network. Most of the evidence concerning Kanj’s drug business comes from Dharan. In 2016 Dharan was living in Smithfield, Sydney with his parents, and was making a living driving buses. He met Kanj through a friend. Dharan started working for Kanj in Kanj’s drug business in mid-2016. In respect of the supplies to Cairns which are the subject of the present charges (and to which Dharan pleaded guilty on 9 October 2019), Dharan would obtain a message on a BlackBerry phone which Kanj had supplied to him. The message would show the type of drug, the amount and the address to which to send it. Having received the message, Dharan would then go to Kanj’s warehouse to obtain the drugs. He would weigh the drugs and take them back to his house and vacuum-seal them. He would then place the drugs in an Australia Post box which would then be put inside an Express Post satchel. He would put in a maximum of 300 grams per satchel. He would address the parcel and send packages to Cairns three or four times a week. Depending on quantities, he would send more than one Australia Post package on the one day.