SUPREME COURT OF QUEENSLAND
CITATION:
R v Hill, Bakir, Gray & Broad; ex parte Cth DPP [2011] QCA 306
PARTIES:
R
v
HILL, Steven Milton
(applicant/appellant/ respondent)
BAKIR, Yassar
(applicant/appellant/ respondent)
GRAY, Candice Ruth
(appellant/ respondent)
BROAD, Anthony Keith
(respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(respondent/appellant)FILE NO/S:
CA No 253 of 2010
CA No 254 of 2010
CA No 288 of 2010
CA No 306 of 2010
CA No 310 of 2010
CA No 311 of 2010
CA No 312 of 2010
CA No 313 of 2010
CA No 314 of 2010
SC No 815 of 2010DIVISION:
Court of Appeal
PROCEEDINGS:
Appeals against Conviction
Sentence Appeals by Cth DPP
Sentence ApplicationsORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
28 October 2011
DELIVERED AT:
Brisbane
HEARING DATE:
18 April 2011
JUDGES:
Muir and White JJA and Atkinson J
Separate reasons for judgment of each member of the Court, Muir and White JJA concurring as to the orders made, Atkinson J dissenting in partORDER:
In CA No 253 of 2010, CA No 254 of 2010 and CA No 288 of 2010: Appeals against conviction by Hill, Bakir and Gray dismissed.1.
In Appeals against sentence by the Commonwealth Director of Public Prosecutions dismissed.CA No 306 of 2010, CA No 310 of 2010, CA No 311 of 2010 and CA No 312 of 2010: 2.
In Applications for leave to appeal against sentence by Bakir and Hill refused.CA No 313 of 2010 and CA No 314 of 2010: 3.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where Bakir, Hill and Gray were found guilty by a jury after a trial of drug offences including importation of a commercial quantity of a border controlled drug and attempting to possess a commercial quantity of a border controlled drug – where the appellants argued that the verdicts were unreasonable having regard to the evidence – whether it was open to a properly instructed jury to find the appellants guilty
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the appellants argued that the learned trial judge erred in ruling as admissible telephone intercept recordings and evidence of drug seizures – whether the evidence was admissible – whether the jury was properly directed with respect to it
CRIMINAL LAW – EVIDENCE – CORROBORATION – DIRECTIONS TO JURY – ADEQUACY OF WARNING – EVIDENCE CAPABLE OF AMOUNTING TO CORROBORATION – where the appellants submitted that the trial judge erred in ruling that there was independent corroborative evidence of a witness’ testimony and directing the jury as such – whether the evidence was capable of being corroborative
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the Commonwealth Director of Public Prosecutions (CDPP) appealed against the sentences imposed on Bakir, Hill, Gray and Broad – where the CDPP submitted that the sentences imposed were manifestly inadequate and that they failed to reflect the criminality of the offending and the element of general deterrence and gave too much weight to mitigating factors – whether the sentences imposed were manifestly inadequate so as to demonstrate an error in the exercise of the sentencing discretion
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where Bakir and Hill also applied for leave to appeal against their sentences on the basis that the sentencing discretion had miscarried – whether leave should be granted
Crimes Act 1914 (Cth), s 16A, s 16E, s 16F
Criminal Code Act 1899 (Qld), s 632, s 668E, s 669A(1)
Criminal Code Act 1995 (Cth), s 3, s 5, s 6, s 11, s 307, s 314
Drugs Misuse Act 1986 (Qld), s 8, s 9
Penalties and Sentences Act 1992 (Qld), s 159AAdams v The Queen (2008) 234 CLR 143; [2008] HCA 15, followed
Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39, followed
Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60, cited
Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28; [2010] NSWCCA 194, cited
Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, followed
Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited
Gately v The Queen (2001) 232 CLR 208; [2007] HCA 55, cited
Hili v The Queen; Jones v The Queen (2010) 85 ALJR 195; (2010) 272 ALR 465; [2010] HCA 45, considered
Jenkins v The Queen (2004) 79 ALJR 252; (2004) 211 ALR 116; [2004] HCA 57, cited
Lacey v Attorney-General (Qld) (2011) 85 ALJR 508; (2011) 275 ALR 646; [2011] HCA 10, followed
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed
R v Barrow [2001] 2 Qd R 525; [1999] QCA 56, cited
R v Chandler[2010] QCA 21, cited
R v Davidson (2009) 75 NSWLR 150; [2009] NSWCCA 150, considered
R v Davies[2007] QCA 416, cited
R v Harris [2009] QCA 370, cited
R v Jackson (1987) 11 NSWLR 318, cited
R v Kevenaar (2004) 148 A Crim R 155; [2004] NSWCCA 210, cited
R v Kuster (2008) 21 VR 407; [2008] VSCA 261, cited
R v Lawrence; R v McDonagh [2007] SASC 106, cited
R v Le Blowitz [1998] 1 Qd R 303; [1996] QCA 451,cited
R v Mbonu (2003) 7 VR 273; [2003] VSCA 52, cited
R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238, cited
R v Oprea [2009] QCA 184, cited
R v Pektas [1989] VR 239; [1989] VicRp 21, cited
R v Shahrokhey-Zadeh [2006] QCA 4, cited
The King v Baskerville [1916] 2 KB 658, followed
Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22, followed
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, citedCOUNSEL:
M J Byrne QC, with G McGuire, for the applicant/ appellant/ respondent, Hill
B Walker SC, with A J Kimmins, for the applicant/ appellant/ respondent, Bakir
D F Jackson QC, with M J Croucher, for the appellant/ respondent, Gray
D P O’Gorman SC for the respondent, Broad
W J Abraham QC, with L K Crowley, for the respondent/ appellant, Cth DPPSOLICITORS:
Peter Shields Lawyers for the applicant/ appellant/ respondent, Hill
Peter Shields Lawyers for the applicant/ appellant/ respondent, Bakir
Bell Miller Solicitors for the appellant/ respondent, GrayMcLaughlins Solicitors for the respondent, Broad
Director of Public Prosecutions (Cth) for the respondent/ appellant, Cth DPP
MUIR JA:
The appeals against conviction by Bakir, Hill and Gray
I agree that the appeals against conviction should be dismissed for the reasons given by Atkinson J. Atkinson J’s careful recitation of the facts enables me to state my reasons relatively briefly.
The sentence appeals by the Commonwealth Director of Public Prosecutions
The appellant Commonwealth Director of Public Prosecutions appeals against the sentences imposed on the respondents Bakir, Hill, Gray and Broad on grounds that:
1. The sentences were manifestly inadequate;
2.Insufficient weight was given to the circumstances of the case, particularly the objective seriousness of the offences;
3. Too much weight was given to mitigating factors.
It is convenient to consider all three grounds together. The CDPP argued, at least inferentially, that the sentencing judge had sentenced inconsistently with Adams v The Queen[1] by assessing the seriousness of the offending conduct by reference to the qualities of the subject drug rather than by reference to the legislative scheme. Reliance was placed on to the following passage from the joint reasons in Adams:[2]
“In fixing the trafficable and commercial quantities of heroin and MDMA respectively, and applying the same maximum penalties to the quantities so fixed, Parliament has made its own judgment as to an appropriate penal response to involvement in the trade in illicit drugs. The idea that sentencing judges, in the application of that quantity-based system, should apply a judicially constructed harm-based gradation of penalties (quite apart from the difficulty of establishing a suitable factual foundation for such an approach) cuts across the legislative scheme. This problem was recognised by the Court of Criminal Appeal of New South Wales in R v Poon - #. A similar problem in relation to Victorian legislation underlay the decision in Pidoto and O’Dea noted above.” (citations omitted)
[2]At para [10].
Error was said to be detectable in the sentencing judge’s reliance on R v Davidson[3] The substance of the argument was that one decision could not provide a sentencing range let alone establish an appropriate range. The argument continued: by finding that Davidson was the most relevant comparable case, the sentencing judge must have focused impermissibly on the nature of the subject drug and thus disregarded many other comparable sentences to which recourse should have been had.
The sentencing judge commenced his sentencing remarks by identifying the respective roles of the respondents in the subject importation. He then discussed the aspect of financial gain, finding that Gray was to be paid $17,000 and that the others involved expected to manufacture GHB from the imported GBL and sell the end product for a profit. He found that Broad must have had a total of at least 4,601 grams of pure GBL in his possession from the importation and that some of the imported material had been dissipated by a “cook-up” on 14 June 2006. It was found that Radcliff expected that about 10 to 12 bottles able to produce nine to 10 kilograms of pure GHB was to be imported, and that the likely profit to be made from manufacturing and selling the GHB was between $180,000 and $200,000.
The sentencing judge noted that the subject events occurred in mid 2006, after GBL had been listed as a border controlled drug in s 314.4 of the Criminal Code (Cth). He referred to Adams v The Queen and quoted the passage from the joint reasons quoted above. His Honour then recorded the CDPP’s submission that sentences pre Adams v The Queen had not taken into account the principles there expressed and therefore did not reflect the maximum penalty for the importation of GBL which was increased from 6 December 2005.
After discussing: further submissions made by the CDPP; the credit which should be given to Bakir and Hill for pre-sentence custody and mitigating circumstances, his Honour discussed Davidson as follows:
“Taking into account what I have said about Adams, the most useful decision on which I can rely in respect of setting sentences, seems to me to be that of the New South Wales Court of Criminal Appeal in Davidson v. The Queen.
There the appellant was convicted of three counts of importing a commercial quantity of a border controlled drug and one count of attempting to do so. He was sentenced to imprisonment for six years on each count, with a total term of eight years, due to partial accumulation of the sentences, and a single non parole period of four years and five months.
The quantity of the drug imported in the three counts was more than 30 kilograms which, depending on what view one takes of the amount imported here, appears to be roughly comparable in respect of each separate importation. The attempt to import was another 19 kilograms.
The sentence was imposed by the trial judge on the 8th of February, 2008, before the decision of the High Court in Adams v. The Queen, but the appeal occurred more than a year after the decision in Adams v. The Queen, which was referred to in the Court of Appeal’s judgment. It was an appeal against sentence by the defendant which was dismissed. No remarks were made in respect of the adequacy of the sentence otherwise by the Court to suggest that it was less than appropriate, and it does seem to be a reasonably comparable decision to assist me in what I should do.
The Court there did point out that Australian courts have not had much familiarity with offences in respect of this drug. It was also pointed out that while it was plainly an offence against Commonwealth law at the time of the offences there, it was then not a drug recognising or proscribed by New South Wales drug law, and it only became illegal in Queensland as was relevant to this trial some years ago.
Justice Simpson went on to say it is true that GBL is not a drug with which the courts of New South Wales have acquired great familiarity.
It does seem to me, however, that when one compares decisions in respect of the sentencing of offences of this nature, that it is difficult to say, even in respect of some offences of importation of cocaine, to which I was taken, that there is necessarily a direct correlation sufficient to establish a head sentence range of ten to twelve years as was contended for by the prosecution. It seems to me that an appropriate range is that set in effect of six years in Davidson.” (citations omitted)
It is apparent from the above passage that the sentencing judge gave due consideration to Adams v The Queen and that his Honour did not disregard sentences imposed in respect of similarly scheduled drugs. When the sentencing judge referred to “an appropriate range…set in effect of six years in Davidson” all that his Honour was intending to convey was that Davidson, being “reasonably comparable” in terms of the drug and quantities imported, provided something of a yardstick.
The sentencing judge did not err in looking for comparable sentences which related to the drug in respect of which he was sentencing. Nor was it erroneous of him to take into account the quantity of the drug imported or the extent to which the respondents profited or stood to profit from the importation.[4]
[4]Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28, per Allsop P at para [68], per McClellan CJ at CL at paras [202] and [209], per Simpson J at paras [306], [308]. But see also R v Nguyen; R v Pham [2010] NSWCCA 238 at para [72].
As the CDPP submitted, Davidson had its limitations as a precedent as the Court was required to determine only whether the sentences, considered against the background of the decision in Adams v The Queen, were manifestly excessive. The quantity of drug imported was more than 30 kilograms and an attempt was made to import another 19 kilograms.
The sentencing judge had been referred to a number of other decisions which may be thought to have played a role in his decision. One of these was R v Chandler[5] in which the 33 year old applicant, who had a criminal history which included convictions for minor drug offences, appealed unsuccessfully against a sentence of five years with a non-parole period of three years for an offence of importing a commercial quantity of a border controlled precursor of a controlled drug (pseudoephedrine). The total weight of the drug imported was between 2,799 grams and 2,988 grams and it could have been used to produce approximately 2 kilograms of pure methylemphatamine with a retail street value in its pure form of between $600,000 and $1.6 m.
[5][2010] QCA 21.
The sentencing judge was referred by the CDPP to a number of sentences including the following:
·R v Davies [2007] QCA 416. A seven year term of imprisonment with a non-parole period of two years was imposed on appeal for attempted possession of 2,240 grams of cocaine with a street value of $1.6 m.
·R v Harris [2009] QCA 370. A seven year term of imprisonment with a non-parole period of four years was imposed for attempted possession of 1,489.7 grams of cocaine with a street value of $2 m.
·R v Kevenaar (2004) 148 A Crim R 155. One offender received a seven year term with a non-parole period of four and a half years and another offender received a seven year and nine months term with a non-parole period of five years for attempted possession of 5,987.7 grams of pure MDMA with a street value of $2,441,400. Kevenaar had been sent to Australia to obtain delivery of a shipment of drugs and to facilitate the dissemination of the drugs in Australia.
·R v De La Rosa [2010] NSWCCA 194. An eight year term of imprisonment with a non-parole period of five years was imposed for the importation of 1,870 grams of cocaine with a street value of between $374,060 and $841,635. The offender had a role in the importation greater than that of a “mere courier” and stood to make “a very significant financial gain”.
·R v Oprea [2009] QCA 184. A 10 year term of imprisonment with a non-parole period of six and a half years was imposed for attempted possession of 1,489.7 grams of cocaine with a street value of $2 m.
·R v Lawrence; R v McDonagh [2007] SASC 106. A sentence of five years and seven months imprisonment with a non-parole period of two and a half years was imposed for two supplies of GHB each over 17 kg and one supply of in excess of 34 kg.
It is immediately obvious that the value of the drugs imported in the cases relied on by the CDPP at first instance was, in each case, greatly in excess of the drugs imported by the respondents.
The circumstances of the offending conduct are rather remarkable. The following is a summary of the “factual overview” in the CDPP’s submissions on the sentence appeal. Radcliff and Cook were in the business of importing GBL, manufacturing GHB from it and selling it. After Cook was arrested, Bakir and Hill demanded that Radcliff import GBL for them. As an incentive for him to cooperate, they took his wallet, ATM card and car. Radcliff approached Gray for assistance with the importation. She agreed and said that she would need $7,000 up front, a delivery address and a further $10,000 once “the package” had arrived. Radcliff, for reasons unexplained, approached Broad to assist in funding the venture. Broad agreed to provide $5,500 in return for a proportion of the GBL to be imported. Radcliff provided Gray with the $7,000 made up of Broad’s money and $1,500 of his own. He also provided Gray with a delivery address given to him by Broad. The GBL arrived and was collected by Radcliff and given to Broad. Bakir and Hill never offered to pay for, paid for or received any of the GBL, or as far as the evidence discloses, any of the GHB made from it. This account does not suggest that the respondents were engaged in an exercise of any sophistication.
The sentencing judge explained the mitigating factors taken into account by him in respect of each respondent. He found that Bakir suffered from physical and psychiatric problems which may have contributed to his behaviour. He found that after a motor vehicle accident in December 2003, Bakir had “developed significant psychiatric problems” and suffered from continual headaches and schizophrenia. He lost his business and his ability to generate income. All of his offending conduct post dated his motorcycle injuries. The evidence before the sentencing judge was that Bakir suffered from a major depressive disorder and experienced continuing pain and blackouts. The sentencing judge found that time served by him in prison would be more difficult because of the residence of his three young children in Sydney and because of his physical and psychiatric difficulties.
Bakir had served six months in pre-sentence custody in respect of offences of assaulting Radcliff and the unlawful use of Radcliff’s car. It was conceded by the CDPP that this period could be taken into account in determining Bakir’s non-parole period. Bakir had also spent approximately 12 months in custody in New South Wales for charges which the sentencing judge considered to be unrelated to the offences before him. Although he was of the view that he could take the time spent in custody in New South Wales into account, he did so only to the extent of reducing the non-parole period by nine months rather than the total period of 18 months pre-sentence custody. This is a factor which goes to the question of whether the sentence was manifestly excessive.
Hill had been in prison in Queensland for four and a half months in respect of the Radcliff assaults and the unlawful use of his car. To take this into account, the sentencing judge reduced the non-parole period to be imposed from four years to three years, seven months. Hill, as the sentencing judge noted, had a five and half year old daughter and had a good work history.
Gray was 22 years of age at the time of her offending conduct and had only a minor criminal history. In sentencing Gray, the sentencing judge took into account her youth and strong prospects of rehabilitation. He commented that “she has turned her life around since her offence” and noted that she had taken up “worthwhile employment, and appears to be succeeding very well in it.”
The sentencing judge’s remarks, if anything, understated Gray’s claims for mitigation. She gave up her studies at Bond University, where she had a scholarship and was performing well in her studies, to care for her dying mother and support herself and her two younger brothers. After her mother died, when Gray was 19 years old, she continued to be the principal carer for her brothers. After the loss of the family home, she housed her brothers in her studio apartment and provided them with material and financial support as well as direction and encouragement. All of this imposed an exceptional emotional and financial burden on such a young woman. Many references speak glowingly of her character, her support and encouragement of others and her business and social accomplishments.
Although Gray’s motive for her offending conduct was commercial gain, the amount of gain was overstated by the CDPP. The $7,000 received from Radcliff was to be paid for the importation. It was not contended by the CDPP that her motivation was greed rather than desperation.
The sentencing judge, in sentencing Broad, took into account his plea of guilty and demonstrated rehabilitation. He concluded that his offending was uncharacteristic and commenced after a tragic marital break up and loss of his family support network. Broad’s wife had developed schizophrenia. It was also found that his motivation was not entirely commercial.
In respect of each of Bakir, Hill, Gray and Broad, the sentencing judge was entitled to take into account their blameless conduct over the lengthy period between their offending and sentencing.
Before this Court can interfere with a sentence under s 669A(1) of the Criminal Code,[6] it is necessary that error on the part of the sentencing judge be demonstrated. Once error is demonstrated, the Court has an unfettered discretion to substitute the sentence it considers appropriate.[7]
[6]1899 (Qld).
[7]Lacey v Attorney-General (Qld) (2011) 85 ALJR 508 at para [62].
In Lacey v Attorney-General (Qld),[8] the majority reasons emphasised “the exceptional character of the Crown appeal against sentence”. It was said:[9]
“The treatment of Crown appeals against sentence as ‘exceptional’ indicated a judicial concern that criminal statutes should not be construed so as to facilitate the erosion of common law protection against double jeopardy.”
[8](2011) 85 ALJR 508 at para [16].
[9]At para [17].
Where an appeal against sentence is based merely on manifest inadequacy:
“…appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.” [10]
[10]Wong v The Queen (2001) 207 CLR 584 at [58].
In Hili v The Queen; Jones v The Queen,[11] French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ rejected the contention that “manifest error is fundamentally intuitive” and accepted the view of the Court below that manifest error “arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it.”
[11](2010) 272 ALR 465 at [60].
In Lowndes v The Queen,[12] the Court observed:
“...a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. ... The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.”
[12](1999) 195 CLR 665 at 671, 672.
McHugh J in Everett v The Queen[13] said:
“If a sentencing judge imposes a sentence that is definitely below the range of sentences appropriate for the particular offence, the case can be regarded as falling within the rationale for conferring jurisdiction in respect of Crown appeals. It can be regarded as sufficiently exceptional to warrant a grant of leave to appeal to the Crown even if no question of general principle is involved. Such cases, however, are likely to be rare. Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence. Disagreement about the adequacy of the sentence is not enough to warrant the grant of leave. Sentencing is too inexact a science to make mere disagreement the criterion for the grant of leave to appeal against the inadequacy of a sentence. The requirement of leave gives rise to the inference that Parliament intended that something more than mere error was to be the criterion of the grant of leave.”
[13](1994) 181 CLR 295 at 306, 307.
It appears to me that the sentencing judge performed his task in an orthodox fashion. In particular, it appears that he considered and applied the provisions of s 16A of the Crimes Act 1914 (Cth) and the particular circumstances of each of the respondent’s offending conduct. As the Court observed in Hili v The Queen; Jones v The Queen,[14] his Honour did not apply any erroneous principle.
[14][2010] HCA 45 at para 48.
A judge sentencing for Commonwealth offences is usually required to have regard to decisions concerning similar circumstances with a view to achieving reasonable consistency in penalties imposed for like offences in like circumstances.[15]
[15]Wong v The Queen (2001) 207 CLR 584 at 591 per Gleeson CJ and R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 10 at para [49].
But as the Court remarked in Hili v The Queen; Jones v The Queen:[16]
“Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.
The consistency that is sought is consistency in the application of the relevant legal principles. And that requires consistency in the application of Pt 1B of the Crimes Act. When it is said that the search is for ‘reasonable consistency’, what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form. That is why this Court held[17] in Wong that guidelines that the New South Wales Court of Criminal Appeal had determined should be used in sentencing those knowingly concerned in the importation of narcotics were inconsistent with s 16A of the Crimes Act. Those guidelines had made the weight of the narcotic the chief factor determining the sentence to be imposed, thus distracting attention from the several considerations set out in the non-exhaustive list of matters prescribed by s 16A(2) as matters ‘the court must take into account’ in fixing a sentence, if those matters are relevant and known to the Court.
The first and paramount means of achieving consistency in federal sentencing is to apply the relevant statutory provisions. …”
[16][2010] HCA 45 at paras [48], [49] and [50].
[17](2001) 207 CLR 584 at 608 [65], 612-613 [78], 616 [87] per Gaudron, Gummow and Hayne JJ, 632 [131] per Kirby J.
Whilst it does appear to me that the respondents have each been dealt with leniently, I am not persuaded that when due regard is had to the matters to which I have drawn attention, including the particular circumstances of the offending conduct in each case and mitigating circumstances, that the sentences have been shown to be manifestly inadequate. Accordingly, I would order that the CDPP’s appeals against sentence be dismissed.
The applications for leave to appeal against sentence by Bakir and Hill
Generally, for the reasons given by Atkinson J, I would refuse the respondents’ applications for leave to appeal against sentence.
WHITE JA: I have read the detailed examination by Atkinson J of the circumstances giving rise to the appeals against their convictions by Bakir, Hill and Gray; the applications for leave to appeal against sentence by Bakir and Hill; and the appeals against the sentences imposed on Bakir, Hill, Gray and Broad by the Commonwealth Director of Public Prosecutions (“CDPP”). I am grateful to her Honour for that careful analysis. I agree with her Honour’s reasons that the appeals against the convictions should be dismissed.
I also agree with her Honour’s reasons for refusing Bakir and Hill’s applications for leave to appeal against their sentences.
I do not, however, share her Honour’s conclusion that the appeals by the CDPP should be allowed. The following are my reasons.
The charges and penalties
Bakir, Hill and Gray were each found guilty that between 22 April 2006 and 9 June 2006 each imported a commercial quantity of a border controlled drug, Gammabutyrolactone (“GBL”). These charges comprised counts 1, 2 and 3 on the indictment. Bakir and Hill were each found guilty that between 5 June 2006 and 11 June 2006 they each attempted to possess a commercial quantity of a border controlled drug, GBL, that was unlawfully imported – counts 5 and 6.
Broad had pleaded guilty that between 22 April 2006 and 9 June 2006 he imported a commercial quantity of border controlled drug, GBL – count 4. He also pleaded guilty that between 5 June 2006 and 6 July 2006 he possessed a commercial quantity of a border controlled drug, GBL, that was unlawfully imported. Broad pleaded guilty to these charges on the first day of the trial. He was sentenced with the other defendants at the end of their trial. Broad also pleaded guilty to two charges under the Drugs Misuse Act 1986 (Qld), not the subject of any appeal.
Bakir was sentenced to six years imprisonment on count 1 and four years imprisonment on count 5, both sentences to be served concurrently with a non-parole period of three years and three months. Hill was also sentenced to six years imprisonment on count 2 and four years imprisonment on count 6, those sentences to be served concurrently with a non-parole period of three years and seven months. Gray was sentenced to five years imprisonment on count 3 with a non-parole period of two years and six months. Broad was sentenced to five years imprisonment on count 4 and two years imprisonment on count 7, those sentences to be served concurrently with a non-parole period of two years.
Grounds of appeal
The CDPP’s grounds of appeal are:
Ground 1: The sentences imposed for the Commonwealth offences are manifestly inadequate.
Ground 2: The sentencing judge did not give sufficient weight to the circumstances of the case and in particular to the objective seriousness of the offences.
Ground 3: The sentencing judge gave too much weight to mitigating factors.
Discussion
The respondents to the CDPP’s appeal accepted the factual overview set out in counsels’ appeal outline. It is a convenient summary for my purposes.
“1.During early 2006, Ben Radcliff, was a person involved in the drug trade on the Gold Coast. Radcliff and his associate, Glen Cook, conducted a business importing Gammabutyrolactone (“GBL”), a border controlled drug, and manufacturing that drug into Gammahydroxybutyric acid (“GHB”), a dangerous drug. Cook imported the GBL and then he and Radcliff would “cook” that drug to manufacture GHB. Radcliff found customers and sold the GHB.
2.In March 2006, Cook was arrested and taken into custody for drug importation offences.
3.On 23 April 2006, the Respondents Bakir and Hill “met with” Radcliff and demanded that he import GBL for them. They assaulted Radcliff, took his wallet, ATM card and car and told him that he would only get his car back if he imported the GBL for them.
4.After this meeting Radcliff contacted the Respondent Gray, who had previously been the girlfriend of his associate Cook. Radcliff was aware from an earlier discussion with her that she and Cook wanted to continue the importation of GBL even though Cook was in prison. Radcliff met with Gray, and told her of the demands that had been made of him by Bakir and Hill and asked if she could assist with importing the GBL.
5.Gray agreed to arrange the importation of the GBL. She told Radcliff that he would need to provide her with $7,000 up front, an address for the delivery of the substance and that he would have to provide a further $10,000 once the package had arrived.
6.As Radcliff did not have enough money to pay Gray he approached the Respondent Broad to become involved in the enterprise. Broad agreed to give Radcliff $5,500 to pay for the cost of the importation and to provide the address for delivery of the GBL. In return Broad was to receive a proportion of the GBL that was to be imported by Gray.
7.Radcliff subsequently provided the $7,000 to Gray, which was comprised of Broad’s $5,500 and $1,500 of his own money. Radcliff also provided Gray with the delivery address that had been given to him by Broad.
8.On 6 June 2006, a package from overseas containing the GBL arrived at the Eagle Heights Post Office. That day Radcliff collected the package and on 8 June 2006 met Broad and gave it to him.
9.Shortly thereafter Radcliff was confronted by Bakir and Hill who demanded that he hand over the imported GBL. Radcliff explained that he did not have the package as he had given it to Broad. Bakir told him that he had until the following day to get the package back and hand over to him.
10.In the evening of 8 June 2006, Bakir went to one of Broad’s ex-girlfriend’s home looking for Broad. Bakir left a message with the ex-girlfriend, asking that Broad contact him.
11.The following morning 9 June 2006, Radcliff met with Broad and his associate, Pita Wilson. Radcliff told them that Bakir and Hill wanted the GBL, but Broad refused to return the package telling him that he intended to keep it for himself.
12.Radcliff then left that meeting with Wilson in his mother’s car. A short time later Bakir and Hill drove up behind them, pulled them over and Bakir then pulled Radcliff from the car and took him to his car.
13.Hill and Bakir kept Radcliff with them as they attempted to locate Broad. They attempted to telephone him. They eventually arranged to meet with Wilson to sort out the matter. Bakir and Hill released Radcliff only when they were satisfied he was unable to assist with getting the package back from Broad.
14.On 5 July the police attended a Gold Coast hotel room where Broad was found with three bottles of the GBL, cooking implements and a large quantity of manufactured GHB.”
Both GBL and gamma hydroxybutyric acid (“GHB”) are border controlled drugs and the commercial quantity for each is one kilogram. Atkinson J has set out the relevant provisions of the legislation as well as the elements and evidence upon which each respondent could be convicted.[18]
[18]At [72] to [86] of her Honour’s reasons.
The CDPP’s principal complaint is that the sentences imposed are too low. The errors identified are that in carrying out the balancing exercise involved in imposing sentence the sentencing judge did not give sufficient weight in each case to the objective wrongdoing by the respondents and gave too much weight to factors favourable to them. Although not a specific ground of appeal, the submissions proceeded on the basis that his Honour was led into error by impermissibly having regard to the nature of GHB and, necessarily, GBL. Error was also said to derive from relying on the sentence imposed in R v Davidson[19] to set “the range” because it was one of the few sentences which concerned GHB/GBL. Doing so, it was contended, strengthened the submission that his Honour had regard, impermissibly, to the nature of the drug.
[19](2009) 75 NSWLR 150.
The High Court in Adams v The Queen[20] made plain that neither the legislative scheme in the Customs Act 1901 (Cth), (now in the Criminal Code (Cth)) nor s 16A of the Crimes Act 1914 (Cth) supported, as a relevant consideration in sentencing, a resort to comparable levels of social harm which particular prohibited drugs were thought to cause.[21] The joint judgment said:[22]
[21]The sole ground of appeal in Adams was the contention that the appellant should have been sentenced on the basis that MDMA is less harmful than heroin.
[22]At [9].
“Generalisations which seek to differentiate between the evils of the illegal trade in heroin and MDMA are to be approached with caution, and in the present case are not sustained by evidence, or material of which judicial notice can be taken.”
Their Honours continued:[23]
[23]At [10].
“In fixing the trafficable and commercial quantities of heroin and MDMA respectively, and applying the same maximum penalties to the quantities so fixed, Parliament has made its own judgment as to an appropriate penal response to involvement in the trade in illicit drugs. The idea that sentencing judges, in the application of that quantity-based system, should apply a judicially constructed harm-based gradation of penalties (quite apart from the difficulty of establishing a suitable factual foundation for such an approach) cuts across the legislative scheme.”
Their Honours added:[24]
“Of course, the fixing of a maximum penalty is not the end of the matter, as was emphasised in Ibbs v The Queen.[25] But there is nothing in the Customs Act, or the evidence, or the demonstrated state of available knowledge or opinion, which requires or permits a court to sentence on the basis that possessing a commercial quantity of MDMA is in some way less anti-social than possessing a commercial quantity of heroin.”
[24]At [11].
[25](1987) 163 CLR 447.
The sentencing judge, after referring to the factual basis upon which each defendant came to be sentenced, commented that Radcliff expected that nine to 10 kilograms pure GHB would be produced from 10 to 12 bottles of GBL. Broad was found on 5 July 2006 to be in possession of 2,263 grams of pure GBL and 2,828 grams of GHB. The GHB would have required at least 2,338 grams of GBL to produce that amount. The conclusion was that Broad must have had a total of, at least, 4,601 grams of pure GBL in his possession at some stage. His Honour noted that there was evidence of some dissipation of some GBL earlier. That amount, he said, was “a significant quantity and well in excess of the commercial quantity required to establish the offence of one kilogram”.[26] Calculations made and presented to his Honour were to the effect that 10 to 12 bottles of GHL would give a maximum financial return, after converting it into GHB, of between $180,000 and $200,000. While a significant sum, it was not, his Honour opined, “necessarily” as significant as some of the more serious importation offences where the street value of the drugs involved were many millions of dollars.
[26]AR 972.
His Honour observed that there were few comparable sentences relating to GBL/GHB and particularly since 6 December 2005 when the maximum penalty had increased from imprisonment for five years and/or a fine of $110,000 to life imprisonment; that GBL had been listed as a border controlled drug since 6 December 2005; and that the subject events occurred six months later. His Honour had been referred to Adams and, indeed, quoted in his reasons part of the passage set out above[27] and made other relevant observations. His Honour, therefore, plainly had in mind the strictures against a comparative harm-based approach and the legislative preference for quantities of drug, when sentencing.
[27]At [44].
After discussing other matters, to which I shall return, his Honour said:[28]
[28]AR 980.
“Taking into account what I have said about Adams, the most useful decision on which I can rely in respect of setting sentences, seems to me to be that of the New South Wales Court of Criminal Appeal in Davidson v. The Queen …
There the appellant was convicted of three counts of importing a commercial quantity of a border controlled drug [GBL] and one count of attempting to do so. He was sentenced to imprisonment for six years on each count, with a total term of eight years, due to partial accumulation of the sentences, and a single non parole period of four years and five months.
The quantity of the drug imported in the three counts was more than 30 kilograms which, depending on what view one takes of the amount imported here, appears to be roughly comparable in respect of each separate importation. The attempt to import was another 19 kilograms.
The sentence was imposed by the trial judge on the 8th of February, 2008, before the decision of the High Court in Adams v. The Queen, but the appeal occurred more than a year after the decision in Adams v. The Queen, which was referred to in the Court of Appeal’s judgment. It was an appeal against sentence by the defendant which was dismissed. No remarks were made in respect of the adequacy of the sentence otherwise by the Court to suggest that it was less than appropriate, and it does seem to be a reasonably comparable decision to assist me in what I should do.
The Court there did point out that Australian courts have not had much familiarity with offences in respect of this drug. It was also pointed out that while it was plainly an offence against Commonwealth law at the time of the offences there, it was then not a drug recognising [sic] or proscribed by New South Wales drug law, and it only became illegal in Queensland as was relevant to this trial some years ago.
…
It does seem to me, however, that when one compares decisions in respect of the sentencing of offences of this nature, that it is difficult to say, even in respect of some offences of importation of cocaine, to which I was taken, that there is necessarily a direct correlation sufficient to establish a head sentence range of ten to twelve years as was contended for by the prosecution. It seems to me that an appropriate range is that set in effect of six years in Davidson.”[29]
The word “range” to which exception is taken is no more than a shorthand articulation that six years seems “about right” in the context of what immediately preceded its use.
[29]AR 980-982.
The CDPP contends that since the sentencing judge concluded that Davidson was “the most useful decision” he must have been erroneously influenced by the nature of the drug. This is to suggest that Davidson was the only decision to which his Honour had reference. He had been referred to many other cases, particularly concerning cocaine which he mentioned in the passage above. On this appeal the CDPP’s written outline referred to the prosecutor’s sentencing submissions below mentioning many previous decisions involving importation and/or possession of a border controlled drug. Because of the criticism levelled at his Honour about his use of Davidson I will set out those submissions:[30]
“There are very few cases at appellate level concerning the importation of GBL, and indeed there are very few cases across the nation concerning the production or possession of GHB. Davidson … is the most recent of three cases concerning the importation of GBL. The earlier two … are discussed in Davidson…
Davidson was convicted following a trial of three counts of importing a commercial quantity of GBL and one count of attempting to import GBL. Three packages containing a total of 30.5 kg of GBL were imported into Australia from China. He was sentenced to [a] total of 8 years imprisonment with a non-parole period 4 years 5 months. Davidson’s appeal against sentence was dismissed. Apparently no Crown appeal was brought against the sentence.
The quantity of GBL imported by Davidson on three occasions, albeit close together in time, is vastly greater than the amount involved in this case. It is submitted by the Crown that the 8 year sentence imposed on Davidson was light and does not sit with the observations of the court in Kevenaar, nor does it sit with the pattern of sentencing in Queensland for the importation of commercial quantities demonstrated by the following cases…”
The submissions then referred to R v Shahrokhey-Zadeh;[31] R v Davies;[32] R v Oprea[33] and R v Harris.[34]
Shahrokhey-Zadeh was 21 and had no criminal history. He was convicted after a trial of procuring a person to travel to South America and return carrying 4,143.8 grams of cocaine with an estimated value of $1.6 million. A sentence of 12 years imprisonment with a non-parole period of six years was held not to be manifestly excessive on appeal.
Davies was 33 with no previous convictions and pleaded guilty to attempting to possess a commercial quantity of cocaine – 2,240 grams. He expected to receive $2,000 for arranging for someone to collect the package. He was sentenced to seven years imprisonment with a non-parole period fixed at two years after an appeal.
Oprea had a very old criminal history and was 45 at the time of the offence. He attempted to possess a marketable quantity of cocaine – 1,489.7 grams, with an estimated street value of $2 million. He was convicted after a trial and sentenced on the basis that he was a courier knowing that the parcel contained an illegal drug and was part of a significant importation of cocaine. This Court dismissed his application against his 10 year sentence with a non-parole period of six and a half years.
Harris was Oprea’s co-accused and less involved. She accepted the delivery of the package, believed to contain cocaine, in return for the forgiveness of a debt and a second hand motor vehicle. She absconded before her trial and on return she pleaded guilty to attempting to possess a marketable quantity of cocaine. She was a heroin addict with some previous criminal history. She was regarded merely as a “post box” for the delivery of the package. Her sentence of seven years imprisonment with a non-parole period of four years was not considered manifestly excessive by this Court.
In R v Lawrence; R v McDonagh[35] there were three sales of GHB in very large amounts – over 17 kilograms for two supplies and 34 kilograms for the third supply. A Crown appeal against a sentence of five years and seven months imprisonment with a non-parole period of two and a half years on the principal offender was dismissed.
[35][2007] SASC 106.
The identity of the drug the subject of the charges is important to ascertain the amount of the drug which would constitute a commercial quantity. For example, the threshold commercial quantity for amphetamine and methamphetamine is .75 of a kilogram; cocaine is 2.0 kilograms; heroin is 1.5 kilograms; lysergide (LSD) is .002 of a kilogram; and opium is 20 kilograms. The commercial quantity of cannabis, on the other hand, is 125 kilograms. The selling value of these drugs is a relevant matter. The above comparable sentences to which his Honour was referred concerned, for the most part, drugs with a much greater value than those with which this appeal is concerned. An aspect of deterrence is to make the financial reward not worth the risk.
On this appeal the CDPP referred, additionally, to Director of Public Prosecutions (Cth) v De La Rosa.[36] McLellan CJ at CL, with whom Simpson J and Barr AJ agreed (Allsop P and Basten JA dissenting), undertook detailed research into comparable sentences for the offence of importation of a border controlled drug. That case was a CDPP’s appeal against the sentence imposed in the District Court of New South Wales in respect of an offender with a previous criminal history for robbery who had pleaded guilty to the importation of a border controlled drug, cocaine, in a marketable quantity, being 1,870 grams with an estimated street value of between $374,060 to $841,635 and a lesser wholesale value. That offender was sentenced to imprisonment for eight years with a non-parole period of five years. The judge made a close analysis of a vast number of cases but of this exercise Simpson J observed:[37]
[36][2010] NSWCCA 194.
[37]At [293].
“What can be drawn from the extensive and comprehensive survey of sentences contained in the judgment of the Chief Judge? On their face, they do not appear to establish a clear or coherent sentencing pattern. No doubt that is explicable, at least in part, by the wide variety of factors necessary to be taken into account in every sentencing decision (see, for example, Wong v The Queen [2001] HCA 64; 207 CLR 584, and s 16A itself). Nor, however, do they establish inconsistency to a level that might be of concern.”
Her Honour also added:
“… it would be a mistake to regard an established range as fixing the boundaries within which future judges must, or even ought, to sentence. To take that attitude would be, de facto, to substitute judicial selection of sentences in individual cases for the boundaries of sentencing for a particular offence laid down by Parliament. … Of course, it is well established that the maximum sentence is reserved for the most serious cases. It is equally well established that it would be an extraordinary proposition that a person convicted of an offence of importing prohibited drugs would escape any custodial penalty. The point I am making is that the ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned: Wong and Leung, at [59].
In the end, the sentencing discretion is individual: it must be exercised by the individual judge, in respect of the individual offender. Significant sentencing considerations include the role played by the offender in the particular importation or enterprise, the quantity of the drug involved, and its estimated street or wholesale value (having regard, inter alia, where relevant, to its purity). Also of considerable significance are the character and antecedents of the offender (s 16A(2)(m)). This last consideration bears upon the offender’s prospects of rehabilitation, and also to any claim for leniency made on his or her behalf by reason of prior good character.”[38]
[38]At [304]-[305].
In Wong v The Queen[39] Gaudron, Gummow and Hayne JJ spoke of the “elementary principle” involved in the precedent value of sentences:
“… it is evident in cases like House v The King[40] and the discussion of when an appellate court may conclude that a trial judge’s exercise of discretion has miscarried. Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. It follows that for a court to state what should be the range within which some or all future exercises of discretion should fall, must carry with it a set of implicit or explicit assumptions about what is, or should be regarded as, the kind of case which will justify a sentence within the specified range. It is those assumptions that may reflect or embody relevant principle, not the result.
Similarly, recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal.”[41]
In Hili v The Queen; Jones v The Queen,[42] a sentence appeal concerning income tax evasion, the High Court pronounced upon the proper approach to consistency in Federal sentencing.
“Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.
The consistency that is sought is consistency in the application of the relevant legal principles. And that requires consistency in the application of Pt 1B of the Crimes Act. When it is said that the search is for ‘reasonable consistency’, what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form. That is why this court held in Wong that guidelines that the New South Wales Court of Criminal Appeal had determined should be used in sentencing those knowingly concerned in the importation of narcotics were inconsistent with s 16A of the Crimes Act. Those guidelines had made the weight of the narcotic the chief factor determining the sentence to be imposed, thus distracting attention from the several considerations set out in the non-exhaustive list of matters prescribed by s 16A(2) as matters ‘the court must take into account’ in fixing a sentence, if those matters are relevant and known to the Court.”[43]
[42][2010] HCA 45.
[43]At [48]-[49].
Section 16A(1) of the Crimes Act (Cth) requires a court to impose a sentence “that is of a severity appropriate in all the circumstances of the offence”. Subsection (2) lists certain non-exclusive matters which are relevant and known to the court. They are, relevant to these appeals,
“(a) the nature and circumstances of the offence; …
(f)the degree to which the person has shown contrition for the offence;
(i) …
(ii) in any other matter; …
(g)if the person has pleaded guilty to the charge in respect of the offence – that fact;
(h)the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;
(i)the deterrent effect that any sentence or … may have on the person; …
(k)the need to ensure that the person is adequately punished for the offence; …
(m)the character, antecedents, age, means and physical or mental condition of the person;
(n)the prospect of rehabilitation of the person;
(p)the probable affect that any sentence … would have on any of the person’s family or dependants.”
The sentencing judge outlined the mitigating factors which he applied in respect of each of the respondents. He dealt with Broad first. His Honour noted that Broad pleaded guilty to the importation offence on the first day of the trial and, while observing that it may have been because of the overwhelming nature of the evidence against him, he noted that Broad appeared to have intimated a willingness to plead guilty to the State offences at an earlier date. His Honour observed that Broad appeared to have uncharacteristically taken on this pattern of criminal behaviour after a tragic marital break up, his move to the Gold Coast and the loss of his family support network which he had since re-established. He was a drug dependent person who was now drug free and had taken significant steps to rehabilitate himself since his arrest by moving to another city, taking on good employment and reverting, to what his Honour observed, the referees regarded as his true character. His Honour made particular reference to his plea of guilty and his rehabilitation.
His Honour noted that there were significant mitigating features for Gray. She had taken steps to rehabilitate herself and was supported by a large number of “glowing references” speaking of her character and ability and how she had turned her life around since her offence. She had a difficult childhood caused by the early death of her mother. She then took on raising her younger brothers. At the time of sentence she had worthwhile employment and appeared to be succeeding. She had a minor criminal history. As Muir JA has commented,[44] those remarks tended to underestimate Gray’s claim for leniency. The evidence revealed that she had given up her studies at Bond University where she had a scholarship and was performing well to care for her dying mother and to support the family. After her mother died she housed her brothers in her apartment and provided them with material and emotional support. It was not suggested that her motives for offending were anything other than for commercial gain but, against the background of her history and the moderate amount of money that she stood to obtain from the conduct, it could not be said, as Muir JA observes, that her motivation was “greed rather than desperation”.[45]
[44]At [19].
[45]At [20].
The sentencing judge noted that Bakir suffered from physical and psychiatric problems which followed a major motor vehicle accident in 2003. These included continual headaches, a diagnosis of schizophrenia and the loss of his business. He was married with three young children but was separated from his wife. The family lived in Sydney and imprisonment would be more difficult for him with lack of family support and because of his significant physical and mental injuries. Bakir had been in custody in New South Wales in respect of an unrelated charge but which was potentially relevant to the sentencing as that time served in custody which was not declarable. His Honour took that time into account, but not fully.
Hill was noted to have a good work history and may have attempted to be a calming influence on Bakir. He had been in prison in Queensland for four and a half months arising out of the assaults on Radcliff and the unlawful use of his motor vehicle. His Honour took this into account by reducing the non-parole period from four years to three years and seven months.
There can be no doubt that to the extent that he had been made aware of them his Honour took into account relevant matters mentioned in s 16A and other appropriate matters. It could not be said that his Honour overlooked the serious criminal nature of the conduct of each of these respondents. He had presided over a relatively lengthy trial including the pre-trial hearings.
Although s 669A(1) of the Criminal Code (Qld) allows this Court “in its unfettered discretion” to vary the sentence and impose such sentence as to the Court seems proper, the exercise of that discretion requires that error by the sentencing judge be demonstrated.[46] The majority in Lacey v Attorney-General (Qld) said that “historically” Crown appeals against sentence were to be regarded as “exceptional” and only undertaken “to establish some matter of principle … for the governance and guidance of courts having the duty of sentencing convicted persons”.[47] The appellate jurisdiction conferred upon this Court by s 669A requires “that error on the part of the sentencing judge be demonstrated before the Court’s ‘unfettered discretion’ to vary the sentence is enlivened.”[48] It was fundamental in the analysis of the majority in Lacey that s 669A did not involve a substitution by this Court of its own opinion about an appropriate sentence when hearing an appeal under that section.
[46]Lacey v Attorney-General (Qld) [2011] HCA 10 at [62].
[47]At [16] quoting from Barwick CJ’s judgment in Griffith v The Queen (1977) 137 CLR 293 at 310 and endorsed in Everett v The Queen (1994) 181 CLR 295 at 300.
[48][2011] HCA 10 at [62].
It cannot be demonstrated that his Honour engaged in any erroneous reasoning or overlooked any relevant factor. Therefore what must be shown is that his Honour arrived at sentences “markedly different” from sentences imposed in other comparable cases such that there must have been some misapplication of principle which is not apparent from the reasons. His Honour did not just consider the sentence imposed in Davidson but had reference to other cases. Those relied on, particularly by the CDPP, show that while lenient these sentences are not so low as to indicate error. I would dismiss the CDPP’s appeals against the sentences imposed on Bakir, Hill, Gray and Broad.
ATKINSON J:
Introduction
The Commonwealth Director of Public Prosecutions presented a nine count indictment in the Supreme Court of Queensland charging four defendants, Yassar Bakir, Steven Hill, Candice Gray and Anthony Broad, with various offences concerning the dangerous drug, Gammabutyrolactone (“GBL”), and another dangerous drug which can be manufactured from it, Gamma hydroxybutyric acid (“GHB”).
On 12 October 2010, Anthony Broad pleaded guilty to one count of importing a commercial quantity of the border controlled drug, GBL, between 22 April and 9 June 2006, contrary to ss 307.1(1) and 11.2(1) of the Criminal Code Act 1995 (Cth) (the “Commonwealth Code”) (count four); one count of possessing, between 5 June and 6 July 2006, a commercial quantity of the border controlled drug GBL, that was unlawfully imported contrary to s 307.5(1) of the Commonwealth Code (count seven); one count of unlawfully producing the dangerous drug GHB between 2 and 6 July 2006, contrary to s 8(d) of the Drugs Misuse Act 1986 (Qld) (“Drugs Misuse Act”) with the circumstance of aggravation that the quantity of the drug exceeded two grams (count eight); and one count of unlawfully having possession of the dangerous drug GHB in excess of two grams on 5 July 2006 contrary to s 9(c) of the Drugs Misuse Act (count nine).
On 27 October 2010 Yassar Bakir, Steven Hill and Candice Gray were found guilty of various offences by a jury after a twelve day trial. Bakir was convicted on one count of importing a commercial quantity of the border controlled drug GBL between 22 April and 9 June 2006 contrary to ss 307.1(1) and 11.2(1) of the Commonwealth Code (count one); and one count of attempting to possess, between 5 and 11 June 2006, a commercial quantity of the border controlled drug GBL that was unlawfully imported contrary to ss 307.5(1) and 11.1(1) of the Commonwealth Code (count five). Hill was convicted by the jury on one count of importing a commercial quantity of the border controlled drug GBL between 22 April and 9 June 2006 contrary to ss 307.1(1) and 11.2(1) of the Commonwealth Code (count two); and one count of attempting to possess, between 5 and 11 June 2006, a commercial quantity of the border controlled drug GBL that had been unlawfully imported contrary to ss 307.5(1) and 11.1(1) of the Commonwealth Code (count six). Gray was convicted by the jury of one count of importing a commercial quantity of the border controlled drug GBL between 22 April and 9 June 2006 contrary to s 307.1(1) of the Commonwealth Code (count three).
The maximum penalties for importing a commercial quantity of a border controlled drug, contrary to s 307.1(1) of the Commonwealth Code, and for possessing a commercial quantity of a border controlled drug, contrary to s 307.5(1) (and s11.1(1)) of the Commonwealth Code are life imprisonment and/or a fine of $825,000. The maximum penalties for producing and for possessing a dangerous drug specified in schedule 2 of the Drugs Misuse Regulations 1987 (Qld) (the “Regulations”) in excess of the quantity specified in schedule 3 of the Regulations are 20 years imprisonment.
Yassar Bakir was sentenced to six years imprisonment on count one and a concurrent term of four years imprisonment on count five. His non-parole period was specified as three years three months. Steven Hill was sentenced to six years imprisonment on count two and a concurrent term of four years imprisonment on count six. His non-parole period was specified as three years seven months. Gray was sentenced to five years imprisonment on count three with a non-parole period of two years six months. Broad was sentenced to five years imprisonment on count four and concurrent periods of imprisonment of three and a half years on count eight and two years in respect of each of counts seven and nine. His non-parole period was fixed at two years.
Various applications and appeals were filed. Bakir, Hill and Gray appealed against their convictions; Bakir and Hill applied for leave to appeal against sentence; and the Commonwealth Director of Prosecutions (DPP) appealed against the sentences imposed on Bakir, Hill, Gray and Broad on counts one to seven. All applications and appeals were heard together.
The offences of which the appellants were convicted
The counts of which Bakir, Hill, Gray and Broad were convicted concerned breaches of Commonwealth and State laws. Counts one and two of which Bakir and Hill were convicted, alleged breaches of ss 11.1(1), 11.2(1), 307.1(1) and 307.5(1) of the Commonwealth Code. Gray was convicted on count three of an offence contrary to s 307.1(1) of the Commonwealth Code. Broad was convicted of offences contrary to ss 11.2(1), 307.1(1) and 307.5(1) of the Commonwealth Code and ss 8(d) and 9(c) of the Drugs Misuse Act.
The Commonwealth Code is a Schedule to the Criminal Code Act 1995 (Cth). As its name suggests, it codified the criminal law of the Commonwealth. Division 3 of Part 2.2 applies to all offences under the Commonwealth Code. It provides:
“3.1 Elements
(1)An offence consists of physical elements and fault elements.
(2)However, the law that creates the offence may provide that there is no fault element for one or more physical elements.
(3)The law that creates the offence may provide different fault elements for different physical elements.
3.2 Establishing guilt in respect of offences
In order for a person to be found guilty of committing an offence the following must be proved:
(a)the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;
(b)in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.”
Also relevant to criminal responsibility under the Commonwealth Code is s 5 which deals with the mental or fault element of a crime. Section 5 provides:
“5.1 Fault elements
(1)A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.
(2)Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.
5.2Intention
(1)A person has intention with respect to conduct if he or she means to engage in that conduct.
(2)A person has intention with respect to a circumstance if he or she believes that it exists or will exist.
(3)A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.
5.3Knowledge
A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.
5.4Recklessness
(1) A person is reckless with respect to a circumstance if:
(a)he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(2) A person is reckless with respect to a result if:
(a)he or she is aware of a substantial risk that the result will occur; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(3)The question whether taking a risk is unjustifiable is one of fact.
(4)If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
5.5Negligence
A person is negligent with respect to a physical element of an offence if his or her conduct involves:
(a)such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
(b)such a high risk that the physical element exists or will exist;
that the conduct merits criminal punishment for the offence.
5.6Offences that do not specify fault elements
(1)If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.
(2)If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.
Note: Under subsection 5.4(4), recklessness can be established by proving intention, knowledge or recklessness.”
However, as provided by s 3.1(2), not all offences or elements of an offence under the Commonwealth Code require a fault element. Division 6 of the Commonwealth Code deals with cases where fault elements are not required:
“Division 6 – Cases where fault elements are not required
6.1 Strict liability
(1)If a law that creates an offence provides that the offence is an offence of strict liability:
(a)there are no fault elements for any of the physical elements of the offence; and
(b)the defence of mistake of fact under section 9.2 is available.
(2)If a law that creates an offence provides that strict liability applies to a particular physical element of the offence:
(a)there are no fault elements for that physical element; and
(b)the defence of mistake of fact under section 9.2 is available in relation to that physical element.
(3)The existence of strict liability does not make any other defence unavailable.
6.2Absolute liability
(1)If a law that creates an offence provides that the offence is an offence of absolute liability:
(a)there are no fault elements for any of the physical elements of the offence; and
(b)the defence of mistake of fact under section 9.2 is unavailable.
(2)If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:
(a)there are no fault elements for that physical element; and
(b)the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element.
(3)The existence of absolute liability does not make any other defence unavailable.”
Commonwealth drug offences are set out in Part 9.1 of the Commonwealth Code. The substantive offence set out in s 307.1(1) prohibits importing a commercial quantity of a border controlled drug:
“307.1 Importing and exporting commercial quantities of border controlled drugs or border controlled plants
(1) A person commits an offence if:
(a)the person imports or exports a substance; and
(b)the substance is a border controlled drug or border controlled plant; and
(c)the quantity imported or exported is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2)The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).”
The definitions relevant to this offence are found in s 300.2 of the Commonwealth Code:
“import, in relation to a substance, means import the substance into Australia and includes:
(a) bring the substance into Australia; and
(b)deal with the substance in connection with its importation.
border controlled drug means a substance, other than a growing plant:
(a)listed or described as a border controlled drug in section 314.4; or
(b)prescribed by regulations under paragraph 301.3(1)(a); or
(c)specified in a determination under paragraph 301.8(1)(a).”
Both GBL and GHB are listed as border controlled drugs in s 314.4 of the Commonwealth Code.
“commercial quantity, in relation to a controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor means a quantity not less than the quantity specified as a commercial quantity of the drug, plant or precursor in:
(a) Division 314; or
(b) regulations under section 301.5; or
(c) a determination under section 301.10.”
The amount of GBL and of GHB which is specified as a commercial quantity is one kilogram.
Section 300.5 provides that the prosecution does not have to prove the identity of the particular border controlled drug. It provides:
“300.5 Particular identity of drugs, plants and precursors
If, in a prosecution for an offence against this Part, it is necessary for the prosecution to prove that a person knew, or was reckless as to whether, a substance or plant was a controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor, it is not necessary for the prosecution to prove that the person knew, or was reckless as to, the particular identity of the controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor.”
The substantive offence set out in s 307.5 prohibits the possession of unlawfully imported border controlled drugs:
“307.5 Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants
(1) A person commits an offence if:
(a) the person possesses a substance; and
(b) the substance was unlawfully imported; and
(c)the substance is a border controlled drug or border controlled plant; and
(d)the quantity possessed is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) Absolute liability applies to paragraphs (1)(b) and (d).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Subsection (1) does not apply if the person proves that he or she did not know that the border controlled drug or border controlled plant was unlawfully imported.
Note: A defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4).”
Possession is defined in s 300.2:
“possession of a thing includes the following:
(a)receiving or obtaining possession of the thing;
(b)having control over the disposition of the thing (whether or not the thing is in the custody of the person);
(c) having joint possession of the thing.”
Also relevant to these offences are ss 11.1 and 11.2 found in Part 2.4 of the Commonwealth Code which deals with extensions of criminal responsibility. Section 11.1 deals with attempts:
“11.1 Attempt
(1)A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
(2)For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.
(3)For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.
Note: Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted.
(3A) Subsection (3) has effect subject to subsection (6A).
(4) A person may be found guilty even if:
(a)committing the offence attempted is impossible; or
(b)the person actually committed the offence attempted.
(5)A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence.
(6)Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.
(6A)Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.
(7)It is not an offence to attempt to commit an offence against section 11.2 (complicity and common purpose), section 11.2A (joint commission), section 11.3 (commission by proxy), section 11.5 (conspiracy to commit an offence) or section 135.4 (conspiracy to defraud).”
Section 11.2 extends criminal responsibility to parties to an offence:
“11.2 Complicity and common purpose
(1)A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
(2)For the person to be guilty:
(a)the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and
(b)the offence must have been committed by the other person.
(3)For the person to be guilty, the person must have intended that:
(a)his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or
(b)his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.
(3A)Subsection (3) has effect subject to subsection (6).
(4)A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:
(a) terminated his or her involvement; and
(b)took all reasonable steps to prevent the commission of the offence.
(5)A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the other person has not been prosecuted or has not been found guilty.
The Court said at [10] – [11]:
“… In fixing the trafficable and commercial quantities of heroin and MDMA respectively, and applying the same maximum penalties to the quantities so fixed, Parliament has made its own judgment as to an appropriate penal response to involvement in the trade in illicit drugs. The idea that sentencing judges, in the application of that quantity-based system, should apply a judicially constructed harm-based gradation of penalties (quite apart from the difficulty of establishing a suitable factual foundation for such an approach) cuts across the legislative scheme. …
… [T]here is nothing in the Customs Act, or the evidence, or the demonstrated state of available knowledge or opinion, which requires or permits a court to sentence on the basis that possessing a commercial quantity of MDMA is in some way less anti-social than possessing a commercial quantity of heroin. Furthermore, the sentencing judge's primary consideration was deterrence. That is not said to involve error. Why there should be a difference in that respect between heroin and MDMA was not explained.”
The principle to be drawn from this case is that the sentencing court should take into account the fact that the appellants were convicted of offences in relation to a commercial quantity of a border controlled drug and the penalties set by the legislature for such offences.
The Commonwealth offences of which the appellants were convicted are contained within Part 9.1 of the Commonwealth Code. This now contains the Commonwealth legislative scheme for dealing with serious drug offences. Part 9.1 was inserted into the Commonwealth Code by Schedule 1 to the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth) which commenced operation on 6 December 2005. The Schedule also repealed the previous serious drug offences contained in the Customs Act 1901 (Cth). The maximum penalty was increased from five years imprisonment to life imprisonment.
The CDPP submitted and I agree that, given the observations of the High Court in Adams, it would be contrary to the legislative regime to look for an appropriate range of sentences by reference to the identity of the substance alone. The relevant principles for sentencing an offender for the importation or possession of a border controlled drug were usefully set out by Johnson J (with whom Macfarlan JA and Hulme J agreed) in the New South Wales Court of Criminal Appeal in R v Nguyen; R v Pham[92] at [72] and include:
[92][2010] NSWCCA 238.
(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. Where it is capable of being discerned, the role played by the offender is of great importance in assessing the objective criminality of the offence.
(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)Ordinarily, the amount of the drug involved in an importation is 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. (The fact that the offender needs money to pay off a debt does not necessarily affect culpability.)
(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 than it might otherwise be given.
(k)Where offenders are not young, the immaturity of youth cannot be claimed as a factor bearing upon their transgressions.
(l)Where an offender is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, are relevant to determining the degree of moral culpability attached to the act of attempted possession itself. A sentencing judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise.
(m)Offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs.
Bakir argued on appeal that the judge failed to give appropriate credit in respect of presentence detention in New South Wales. Section 159A(1) of the Penalties and Sentences Act 1992 (Qld) applies because of the effect of s 16E of the Crimes Act 1914 (Cth) on the commencement of sentences. Section 16E is also relevant to the question of non-parole periods under Commonwealth sentences. It provides:
“Commencement of sentences
(1)Subject to subsection (2) and (3), the law of a State of Territory relating to the commencement of sentences and of non-parole periods applies to a person who is sentenced in that State or Territory for a federal offence in the same way as it applies to a person who is sentenced in that State or Territory for a State or Territory offence.
(2)Where the law of a State or Territory has the effect that a sentence imposed on a person for an offence against the law of that State or Territory or a non-parole period fixed in respect of that sentence:
(a)may be reduced by the period that the person has been in custody for the offence; or
(b)is to commence on the day on which the person was taken into custody for the offence;
the law applies in the same way to a federal sentence imposed on a person in that State or Territory or to a non-parole period fixed in respect of that sentence.
(3)Where the law of a State or Territory does not have the effect mentioned in subsection (2), a court (including a federal court) in that State or Territory that imposes a federal sentence on a person or fixes a non-parole period in respect of such a sentence must take into account any period that the person has spent in custody in relation to the offence concerned.”
Section 159A of the Penalties and Sentences Act provides for the time spent in prison which the court must declare as imprisonment already served under the sentence, unless the court otherwise orders. That is any time that the offender was held in custody in relation to proceedings for the offence and for no other reason.
Section 159A(1) is not, however, an exhaustive statement of a sentencing court’s power to take account of presentence custody when arriving at an appropriate sentence. There is no suggestion in this case that Bakir’s presentence custody in New South Wales could be declared as part of the sentence already served. A solicitor who acted for Bakir with regard to the New South Wales charge, which was a charge of discharging a fire arm with intent to murder and “related matters”, swore that Bakir had been refused bail with regard to that charge on a number of occasions having regard to a number of matters including the seriousness of the charge. He said both the Supreme Court and the local court identified the fact that Bakir was already on bail in Queensland at the time he was alleged to have committed the New South Wales offences as a significant matter supporting the finding that bail not be granted. A nolle prosequi was entered after a pre-trial hearing where the identification evidence was excluded.
The extent to which the sentencing judge could reduce the sentence imposed to take account of the period of imprisonment which was not capable of a declaration is within the sentencing judge’s discretion. No error was shown in the way in which his Honour did take the pre-sentence custody in New South Wales into account. As the Court of Appeal said in R v Ainsworth [2000] QCA 163, it is not mandatory to take into account any pre-sentence custody which cannot be declared at the first opportunity and nor does the judge have to take into account the whole of the presentence custody in those circumstances.
However, if it falls to this Court to resentence the appellant Bakir because the sentence imposed below displays error and was manifestly inadequate, it would be appropriate to follow the general approach set out by the Court of Appeal in R v Fabre [2008] QCA 386, that while it is not mandatory, it is generally desirable to take into account periods of presentence custody which are not declarable under s 159A of the Penalties and Sentences Act at the first opportunity.[93] That period of imprisonment was one year and 10 days from 6 February 2008 until 16 February 2009.
[93]R v Fabre at [14]-[15].
Section 16A(1) of the Crimes Act 1914 (Cth) provides that in determining the sentence to be passed or the order to be made in respect of any person for a Commonwealth offence, the court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. A non-exhaustive list of the matters that the court must take into account are set out in s 16A(2) as follows:
“(a) the nature and circumstances of the offence;
(b)other offences (if any) that are required or permitted to be taken into account;
(c)if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character – that course of conduct;
(d)the personal circumstances of any victim of the offence;
(e)any injury, loss or damage resulting from the offence;
(f)the degree to which the person has shown contrition for the offence:
(i)by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii)in any other manner;
(fa) the extent to which the person has failed to comply with:
(i)any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or
(ii)any obligation under a law of the Commonwealth; or
(iii)any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903;
about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence;
(g)if the person has pleaded guilty to the charge in respect of the offence – that fact;
(h)the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;
(j)the deterrent effect that any sentence or order under consideration may have on the person;
(k)the need to ensure that the person is adequately punished for the offence;
(m)the character, antecedents, age, means and physical or mental condition of the person;
(n)the prospect of rehabilitation of the person;
(p)the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.”
The CDPP submitted that the appropriate sentencing range for the most serious offences was between 10 to 12 years.
It is not possible, nor even desirable, to attempt to provide for mathematical consistency in sentencing throughout the Commonwealth; what is important is consistency in the principles to be applied. However, it is useful to consider the sentences imposed both in Queensland and elsewhere in Australia in determining whether the sentences imposed failed to give full effect to the relevant matters set out in s 16A together with any other relevant matters.
Queensland authorities
In R v Tran (2007) 172 A Crim R 436, the applicant pleaded guilty to importing a marketable quantity of the border controlled drug heroin (1,473 grams pure) and was initially sentenced to 15 years imprisonment with a non-parole period of seven years. The maximum penalty for this offence was 25 years imprisonment. The applicant was a courier with no prior criminal record. The Court of Appeal held that the applicant’s sentence was manifestly excessive in comparison to sentences imposed in other jurisdictions and reduced his sentence to 10 years imprisonment with a non-parole period of five years.
Keane JA observed at [8]:
“Gleeson CJ in Wong v The Queen said of the administration of criminal justice: ‘It should be systematically fair, and that involves, amongst other things, reasonable consistency.’ Where the system of criminal justice is enforced by the judicial power of the Commonwealth, State courts exercising that power should strive for reasonable consistency in the sentences imposed throughout the Commonwealth. That objective will usually require recognition of decisions of other States where those decisions concern like cases.” [footnotes omitted]
In R v Shahrokhey-Zadeh [2006] QCA 4, the applicant was convicted after a trial by jury of one count of importing a commercial quantity of cocaine (4,143.8 grams pure) and sentenced to a term of imprisonment of 12 years with a non-parole period of six years. In dismissing his appeal and holding that the sentence imposed was not manifestly excessive, the Court of Appeal noted that the applicant had been sentenced on the basis that another person had acted as his courier in the importation which was organised by him for his benefit; the cocaine was more than twice the commercial quantity prescribed in the Customs Act 1901 (Cth); the cocaine had a street value of approximately $1.6 million and it was a planned commercial venture designed to yield him with substantial financial gain; and the maximum penalty for the offence was life imprisonment.[94]
[94]R v Shahrokhey-Zadeh at 5.
In R v Davies [2007] QCA 416, the applicant pleaded guilty to possession of a commercial quantity of cocaine (2,240 grams pure) and was initially sentenced to seven and a half years imprisonment with a non-parole period of two years six months. The Court of Appeal allowed the appeal and for reasons of parity with a co-offender, substituted his sentence for a period of imprisonment of seven years with a non-parole period of two years. The applicant’s involvement was described as lower than that of his co-offenders who were at “a higher level of the pyramid of drug distribution.”[95] Cook was one of those co-offenders. He had been sentenced to eight years six months imprisonment with a non-parole period of two years ten months.
[95]R v Davies at [25].
In R v Chandler [2010] QCA 21, the applicant pleaded guilty to importing a commercial quantity of a border controlled precursor with the intention that it be used to manufacture a controlled drug contrary to s 307.11 of the Commonwealth Code. The applicant had collected three parcels containing between 2,799 grams and 2,988 grams of pseudoephedrine which could have been used to produce approximately 2 kilograms of methylamphetamine with a street value of between $600,000 and $1.6 million. The maximum penalty for this offence was 25 years imprisonment with or without a fine. The Court of Appeal refused the applicant leave to appeal against his sentence of five years imprisonment with a non-parole period of three years. On the question of the relevance that the drug in question was a precursor, Keane JA said at [24]:
“…the fact that the legislature has prescribed a maximum penalty of 25 years imprisonment as opposed to life imprisonment for the importation of drugs reflects the view (which is hardly surprising) that the level of criminality involved in the case of the importation of precursors with the intention of using them to make drugs is less serious, but not greatly less serious, than the importation of drugs.”
These cases all involved commercial quantities of the drug in question (apart from Tran). It is also relevant to review the sentences imposed in cases involving a lesser amount or marketable quantity of a drug.
In R v Oprea [2009] QCA 184, the applicant was convicted after a trial of attempting to possess a marketable quantity of the border controlled drug cocaine (1,489.7 grams pure) and sentenced to 10 years imprisonment with a non-parole period of six years six months. The Court of Appeal (Keane and Chesterman JJA, McMurdo P dissenting) dismissed the appeal and held that the sentence imposed was within the range of sentences reasonably available in the case. In reaching this conclusion, Keane JA noted that despite the applicant’s submission that he played a relatively limited role, he was a “necessary part of an international network engaged in the importation of cocaine.”[96] Further, “his case compares distinctly unfavourably with that of Tran who had no previous convictions and confessed immediately on his apprehension… [and] gave information to the authorities about others involved in the importation.”[97]
[96]R v Oprea at [29].
[97]R v Oprea at [31].
In R v Harris [2009] QCA 370, the applicant pleaded guilty to attempting to possess a marketable quantity of the border controlled drug cocaine (1,489.7 grams pure) and was sentenced to a period of imprisonment of seven years with a non-parole period of four years. Her application for leave to appeal against sentence was dismissed by the Court of Appeal. The Court of Appeal considered that her sentence was appropriate in the circumstances of the case, which included her guilty plea (although it was not particularly early) and the fact that she “had no involvement in planning or funding of the offence and that her role was simply to receive the drugs and pass them on.”[98]
[98]R v Harris at [20].
In R v Jimson [2009] QCA 183, the applicant pleaded guilty to importing a marketable quantity of the border controlled drug cocaine which consisted of 1,686.8 grams pure cocaine with an estimated street value ranging from $750,000 to $2 million. The applicant had acted as a courier and assisted the authorities with their investigations. The Court of Appeal refused to disturb the applicant’s sentence of a period of eight years imprisonment with a non-parole period of four years six months.
Other jurisdictions
The cases of R v Davidson (2009) 75 NSWLR 150 and R v Lawrence; R v McDonagh [2007] SASC 106 are two of the few cases dealing with the drugs GBL and GBH.
In R v Davidson, the appellant was convicted following a jury trial of three counts of importing a commercial quantity of the border controlled drug GBL and one count of attempting to do so. The total amount in question was approximately 30.5 kilograms. He was sentenced to imprisonment for six years on each count but by reason of partial accumulation of sentences the total term of imprisonment was eight years, with a single non-parole period of four years five months and 15 days. In dismissing his appeal against sentence, Simpson J noted at [96]-[97]:
“It was pointed out that, while the importation of GBL was plainly an offence against Commonwealth law, at the time of these offences, GBL was not a drug recognised in or proscribed by New South Wales drug law; and that, in some comparable jurisdictions (for example Canada) it is not prohibited. It has legal uses even in Australia.
It is true that GBL is not a drug with which the courts of New South Wales have acquired great familiarity. Two precedents only were provided to this Court.”
In R v Lawrence; R v McDonagh, the respondents were convicted on their pleas of guilty of three counts of taking part in the sale of GHB contrary to s 32(1)(d) of the Controlled Substances Act 1984 (SA). The quantities involved in total were in excess of 51 kilograms and attracted a maximum penalty of a $5,000 fine and life imprisonment. The first respondent was sentenced to five years seven months imprisonment with a non-parole period of two years six months. The second respondent, who was acknowledged to have a lesser role, was sentenced to four years imprisonment with a non-parole period of one year ten months. The prosecution appealed against the sentences on the basis that they were “so low as to shock the public conscience and erode sentencing standards … [and] that the sentencing judge erred in reducing the sentences to the extent of 20 per cent on account of the pleas of guilty”.[99]
[99]R v Lawrence; McDonagh at [3].
The South Australian Court of Criminal Appeal held that there was no error of approach and that the sentences imposed were within the range that was appropriate. With respect to the particular drug involved of GHB, the Court said at [21]:
“It was accepted on both sides that fantasy is to be regarded as a substance not as dangerous as heroin, but more dangerous than cannabis. There was no evidence before the sentencing judge as to how it compared with other so-called “middle range” prohibited substances.”
This case was before the High Court’s decision in Adams v The Queen. As referred to earlier in these reasons, in light of the observations of the Court in that case it is no longer the correct approach to consider the nature of a particular drug or how harmful it may be in comparison to other types of drugs in sentencing for Commonwealth offences of importing and possessing (or attempting to possess) a commercial quantity of a border controlled substance.
In Chan, Lo and Nguyen v R [2010] NSWCCA 153, the applicants Chan and Lo were charged with attempting to possess a commercial quantity of the border controlled drug methylamphetamine (approximately 10.01 kilograms pure) and the applicant Nguyen was charged with aiding and abetting the importation of the same. The maximum penalty in each case was life imprisonment and/or a fine not exceeding $825,000.
The applicants pleaded guilty and their sentences were not disturbed by the Court of Criminal Appeal which, after a comprehensive analysis of the relevant authorities, held that the sentences imposed were not manifestly excessive. The applicant Chan was sentenced to imprisonment for 12 years six months, with a non parole period of seven years six months; the applicant Lo was sentenced to imprisonment for seven years six months, with a non parole period of four years six months; and the applicant Nguyen was sentenced to imprisonment for 10 years, with a non parole period of six years.
In R v Kevenaar (2004) 148 A Crim R 155, Hulme J undertook a thorough review of the relevant case law and the sentences imposed for the importation of border controlled drugs. In that case, the three respondents pleaded guilty shortly before the trial to attempting to possess a commercial quantity of MDMA (5,987.7 grams pure). The maximum penalty for their offences was life imprisonment and/or a fine. The New South Wales Court of Criminal Appeal allowed the prosecution appeal against the sentences on the basis that a number of errors were made and they were manifestly inadequate.
Hulme J considered it appropriate to exercise the court’s discretion to resentence the respondents . In doing so, he considered that the appropriate starting point for Kevenaar and Dedoes was 12 years imprisonment. In the case of Kevenaar, he discounted this by 40 per cent to reflect his plea and assistance, resulting in a head sentence of seven years with a non-parole period of four years six months. In the case of Dedoes, he discounted the starting point by 35 per cent to reflect his plea and assistance, resulting in a head sentence of seven years nine months with a non-parole period of five years . In the case of Pan, his Honour noted that his greater role meant that his starting point should be higher. He set this at 13 years eight months, and reduced it by 20 per cent for his plea and assistance, resulting in a head sentence of 11 years with a non-parole period of seven years.
The Court was also referred by the parties to a number of authorities dealing with marketable quantities of a drug.
In R v Onuorah (2009) 76 NSWLR 1, the appellant was convicted by a jury of one count of attempting to possess a marketable quantity of the border controlled drug cocaine, for which the maximum penalty is 25 years imprisonment and/or a fine. He was sentenced to nine years imprisonment with a non-parole period of six years, however this was adjusted to take into account periods of pre-trial custody. The appellant’s appeal against his sentence was dismissed by the New South Wales Court of Criminal Appeal.
In El-Ghourani v The Queen (2009) 195 A Crim R 208, the applicant pleaded guilty to attempting to possess a marketable quantity of the border controlled drug heroin (181.5 grams pure) and was sentenced to nine years imprisonment with a non-parole period of six years. The maximum penalty for this offence is 25 years imprisonment and/or a fine. The New South Wales Court of Criminal Appeal held that the sentence imposed was within the range appropriate for the case. The Court found that it was appropriate for the sentencing judge to take into account the applicant’s “central role in the overall transaction” and involvement in a drug smuggling syndicate, despite the fact that he had not been charged with importation, and that her Honour was “entitled to sentence the applicant with regard to the high degree of culpability involved in the particular act of possession with which he was charged.”[100]
[100]El-Ghourani v The Queen at [44].
In Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28, the respondent pleaded guilty to the importation of a marketable quantity of the border controlled drug cocaine (1,870 grams pure) and was sentenced to eight years imprisonment with a non-parole period of five years. The prosecution appeal against this sentence on the basis that it was manifestly inadequate was dismissed by the New South Wales Court of Criminal Appeal.
Sentences
With regard to Bakir, his offending was objectively serious. He was the instigator of the importation and threatened Radcliff to ensure that it happened. He played a most significant role in attempting to gain possession of the GBL once it had been imported. He committed the offences for financial gain and knew that the amount imported was to be a commercial quantity. The amount imported was to be some nine or 10 kilograms, which was nine or ten times the minimum required for a commercial quantity, although there was no evidence that Bakir knew precisely how much was to be imported. His actions showed however that he was intent on obtaining a significant amount of GBL, consistent with its being well over the minimum commercial quantity. He showed no contrition for his offending, had not demonstrated any prospect of rehabilitation and none of his personal antecedents, apart from the fact that he had been injured in a motorcycle accident which had left him with physical and psychiatric sequelae, demonstrated any reason to mitigate the sentence. It should however be reduced to take account of time spent in custody which could not be declared. Hill played a similar role to that of Bakir and was essentially his partner in crime, although apparently subservient to him. There was no reason apart from the different period spent in presentence custody to reduce his sentence.
With regard to Gray, she arranged the actual importation after she had earlier encouraged Radcliff to assist her and Cook, who by then had been imprisoned, to continue Cook’s business of importing GBL. As with the others her motive was financial gain and the events involved a significant quantity of the drug well in excess of the commercial quantity. She however had significant mitigating factors referred to by the sentencing judge.
Broad’s role was to provide money for the importation and a destination address. He took and retained possession of the GBL after it had arrived and been given to him by Radcliff. Thereafter he manufactured some of the GBL into the drug GHB on two separate occasions. Although he committed the offences for financial gain his role was not purely commercial as he gave away some of the drugs that he manufactured. There were significant mitigating features in respect of Broad referred to by the sentencing judge.
I have come to the conclusion that the sentences were so manifestly inadequate that an error in the exercise of the sentencing discretion is demonstrated. That error appears to have its basis in his Honour using R vDavidson as the only relevant comparative sentence and not explicitly referring to the factors in s 16A of the Crimes Act 1914 (Cth).
While R vDavidson was a relevant comparative, in order to establish the appropriate sentencing range the court should have regard to s 16A of the Crimes Act 1914 (Cth) and other sentences regarding offences involving a commercial quantity of a border controlled drug, taking into account the quantity of the drug imported in terms of how much more than a commercial quantity was imported and the expected financial rewards from the criminality and all of the exacerbating and mitigating factors set out in the statute as they apply to these particular defendants.
Because of the error in the exercise of the sentencing discretion it falls to this Court to resentence the defendants. With regard to Bakir, the relevant starting point for the offences he committed of importing and attempting to possess a commercial quantity of a border controlled drug is 11 years imprisonment. From this should be deducted the 18 months spent in custody in Queensland and in New South Wales which cannot be declared as time spent in custody under the sentence. He should therefore be sentenced on each of counts one and five to nine and a half years imprisonment to be served concurrently. He has no persuasive claims to mitigation of his sentence and so, in my view, the non-parole period should be set at seven years imprisonment. The time spent in custody from 27 October 2010 should be declared as time spent in custody under the sentence.
With regard to Hill, his slighter lesser role means that the starting point should be 10 years imprisonment. From this should be deducted the four and a half months spent in custody which cannot be declared as time spent under the sentence. He should be sentenced to nine years seven months imprisonment on each of counts two and six to be served concurrently with a non-parole period of six years seven months. The time spent in custody from 27 October 2010 should be declared as time spent in custody under the sentence.
Gray’s head sentence on count three should be increased to seven years imprisonment to reflect her criminality and the mitigating factors in her favour. Because of the significant mitigating factors I would not disturb the non-parole period of two years six months imprisonment. The time spent in custody from 27 October 2010 should be declared as time spent in custody under the sentence.
Broad’s head sentence for the offences of importing and possessing a commercial quantity of a border controlled drug (counts four and seven) should be increased to seven years imprisonment to be served concurrently to reflect the seriousness of that offending and the mitigating factors in his favour. It is not necessary to increase the penalties on counts eight and nine. Because of the significant mitigating factors including his pleas of guilty I would not disturb the non-parole period of two years.
Because of s 16F(1) of the Crimes Act 1914 (Cth) this Court must explain, or cause to be explained, to the person sentenced in language likely to be readily understood by that person the purpose and consequences of affixing a non-parole period. In particular the court is required to explain:
“(a)that service of the sentence will entail a period of imprisonment of not less than the non-parole period and, if a parole order is made, a period of service in the community, called the parole period, to complete service of the sentence; and
(b)that, if a parole order is made, the order will be subject to conditions; and
(c)that the parole order may be amended or revoked; and
(d)of the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions.”
As a result it should be explained to each of Bakir, Hill, Gray and Broad in language they can understand the length of the head sentences imposed upon him or her, the non-parole period that each must serve and the length of the parole period, that parole will be subject to conditions, that parole may be amended or revoked and that if he or she fails, without reasonable excuse to fulfil the parole conditions, the parole may be revoked by the Attorney-General and will be automatically revoked if he or she is sentenced to a period of imprisonment of more than three months.
The orders I propose are:
1. Appeals against conviction by Bakir, Hill and Gray be dismissed;
2. Applications for leave to appeal against sentence by Bakir and Hill refused.
3. Appeals against sentence by the Commonwealth Director of Public Prosecutions allowed.
4. Sentence on Yassar Bakir varied by increasing from six years to nine and one half years the term of imprisonment imposed on count one and increasing from four years to nine and one half years the term of imprisonment imposed on count five to be served concurrently with the non-parole period on those sentences fixed at seven years. The time spent in custody from 27 October 2010 should be declared as time spent in custody under the sentence.
5. Sentence on Steven Milton Hill varied by increasing from six years to nine years seven months the term of imprisonment imposed on count two and increasing from four years to nine years seven months the term of imprisonment imposed on count six to be served concurrently with the non-parole period on those sentences fixed at six years seven months. The time spent in custody from 27 October 2010 should be declared as time spent in custody under the sentence.
6. Sentence on Candice Ruth Gray varied only to the extent of increasing from five years to seven years the term of imprisonment imposed on count three. The non-parole period should remain fixed at two years six months. The time spent in custody from 27 October 2010 should be declared as time spent in custody under the sentence.
7. Sentence on Anthony Keith Broad varied only to the extent of increasing from five years to seven years the term of imprisonment imposed on count four and increasing from two years to seven years the term of imprisonment imposed on count seven to be served concurrently with each other and the sentences imposed on counts eight and nine which have not been varied. The non-parole period should remain fixed at two years. The time spent in custody from 19 November 2010 should be declared as time spent in custody under the sentence.
- AGLC
- R v Hill, Bakir, Gray and Broad; ex parte [2011] QCA 306
- Case
- [2011] QCA 306
- Decision Date
CaseChat Overview and Summary
The court found that the jury was properly instructed and open to finding the appellants guilty based on the evidence presented. The court also held that the telephone intercept recordings and drug seizure evidence were admissible and that the jury was properly directed with respect to them. Furthermore, the court determined that there was sufficient corroborative evidence to support the witness testimonies. In regard to the sentences, the court found that they were not manifestly inadequate and did not demonstrate a miscarriage of the sentencing discretion. The court dismissed the appeals against conviction and sentence by the appellants and the Commonwealth Director of Public Prosecutions. The court also refused the applications for leave to appeal against sentence by Bakir and Hill.
The court's orders were that the appeals against conviction by Hill, Bakir, and Gray were dismissed, the appeals against sentence by the Commonwealth Director of Public Prosecutions were dismissed, and the applications for leave to appeal against sentence by Bakir and Hill were refused. The sentences imposed on the appellants were upheld as not manifestly inadequate.
Orders
Orders of the court
In CA No 253 of 2010, CA No 254 of 2010 and CA No 288 of 2010: Appeals against conviction by Hill, Bakir and Gray dismissed.1.
In Appeals against sentence by the Commonwealth Director of Public Prosecutions dismissed.CA No 306 of 2010, CA No 310 of 2010, CA No 311 of 2010 and CA No 312 of 2010: 2.
In Applications for leave to appeal against sentence by Bakir and Hill refused.CA No 313 of 2010 and CA No 314 of 2010: 3.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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