R v Jackson

[1999] QCA 19

99.19

COURT OF APPEAL

de JERSEY CJ
McPHERSON JA
MACKENZIE J

CA No 244 of 1998

THE QUEEN

v.

JAMES LEONARD JACKSON  Applicant

BRISBANE

..DATE 09/02/99

JUDGMENT

THE CHIEF JUSTICE:  I will ask Mr Justice Mackenzie to deliver the first judgment.

MACKENZIE J:  The applicant was one of a number of men sentenced for the offence of being knowingly concerned in the importation of a very large quantity of cannabis resin brought ashore from a vessel in the Tin Can Bay area.  He went to trial and was found guilty on the ninth day and was sentenced to 10 years imprisonment with a parole eligibility after five years.

He was 40 years of age at the time of the offence and had no previous convictions of any consequence for present purposes.

The enterprise as a whole had been planned over a period of months and the applicant's involvement extended over a period of about two months.

A number of acts were relied on by the Crown and appear to have been taken by the sentencing Judge to have been proved.  Those included undertaking travel to Bali to meet an associate of the person described as the coordinator of the exercise to collect cash from him to meet expenses of the importation.

Also he was instrumental in hiring a vehicle on behalf of the coordinator, allowing a vehicle to be parked at his residence for various periods over about three weeks to a month and doing acts intended to facilitate the storage of the drug upon its arrival.

He attended retail agricultural suppliers with the father of the coordinator, J H Roy, where approximately a dozen barrels were purchased and loaded into the truck which was later returned and parked at his residence. He also made inquiries about the availability and terms of hire of sheds and arranged a lease under a false name of commercial storage premises as a venue to be used to make boxes in which the majority of the drug could be stored.  He was also involved in the meeting of expenses in connection with pre-cut timber to be used to make the boxes.

The sentencing Judge referred to the level of involvement in those respects and noted that the importation involved eight tonnes of cannabis resin with a hypothetical value of at least $60 million.  He also indicated that a substantial deterrent sentence was called for.  He noted the absence of remorse having regard to the nature of the defence mounted and noted that, by contrast with the co-offenders who had pleaded guilty, a discounted sentence could not be expected.

There were several classifications of participants which emerged during the sentencing process.  A large number of the offenders were sentenced by Mr Justice Williams and others were sentenced by other trial Judges.

The people who were involved as what was described during the course of the proceedings as waterside workers received lesser sentences than the present applicant. The coordinator, J A Roy, received 14 years with a non-parole period of seven years. 
Another man named May received 10 years with a non-parole period of five years and more pertinently, since submissions were focused on it, a man named Brown who had pleaded guilty had his sentence reduced in the Court of Appeal from 10 years to eight and a half years with a non-parole period of four years.

The other significant sentence for present purposes was that of J H Roy, the father of the other accused person, J A Roy, who received nine years with a non-parole period of four years after pleading guilty.  I should also note that Brown pleaded guilty but put in issue the period over which he had been involved.  That was resolved against him by the learned sentencing Judge who conducted a brief hearing involving a handful of witnesses.

The submissions of Mr Griffin on behalf of the applicant focused on the proposition that the learned trial Judge had, to some extent at least, ignored references which had been tendered. There were a large number of references tendered and it appears that the learned sentencing Judge did have regard to them although he observed that in a situation like this, having regard to the nature of the offence they could not have very much weight.

That, it seems to me, is not a position that calls for any adverse comment.  It seems that in a situation where a person of otherwise good character has become involved in an enterprise of this nature the fact he was previously of good character is indeed largely submerged in the nature of the

offence.

So far as the comparisons were concerned the Crown relied on the comparison with J H Roy, and the kinds of acts that he did were not unlike those which were done by the present applicant.

On the other hand Mr Griffin, for the applicant, focused on the situation of Brown where the Court of Appeal in adjusting his sentence had referred to a submission by counsel for the Crown in those proceedings to the effect that Brown and May were obviously in management positions.

The Court of Appeal went on to say it is not clear to them why two participants, each in a management position, should necessarily receive the same sentence and referred to the difference in the period over which they were involved in the enterprise respectively and it was largely, it seems to me, on that basis it was felt there was a lack of parity between Brown's sentence and that of May. Hence the reduction.

The difficulty in a case of this nature where there are a number of disparate circumstances to be taken into account is of ensuring that justice is done as between the various offenders. In my view there is in this case much to be said for the view that the nature of the involvement of Jackson is very similar to that of J H Roy and a comparison with him is not unwarranted.

A sentence of the level to which the present applicant was sentenced is in my view one which is to be expected for this particular sort of offence. The only issue which arises is whether there is in fact a parity argument which genuinely gives rise to a discrepancy so marked as to genuinely be likely to produce a sense of unjust treatment.

In my view, in this case, the issue of disparity is to be disposed of against the applicant.  It seems to me that the sentence which has been imposed on him having regard to his role in the matter achieves a parity having regard to the fact that a number of the other people involved did plead guilty and that he was thus disentitled to any benefits from an early plea.

I should note also that there was an argument that he had cooperated with the authorities in the sense that admissions of fact were made.  All that can be said about that is that the issue in the trial was the extent of his knowledge of what was going on and it was inevitable that there would be a long trial.

In my view, the applicant has not demonstrated that the sentence imposed upon him is out of parity with those which have been imposed for the other offenders and in my opinion the application for leave to appeal against sentence should be refused.

THE CHIEF JUSTICE:  I agree.

McPHERSON JA:  I agree.

THE CHIEF JUSTICE:  The application is refused.

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