R v Lloyd

[2025] QCA 47

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lloyd [2025] QCA 47

PARTIES:

R
v
LLOYD, Sheldon Hayes
(applicant)

FILE NO/S:

CA No 46 of 2024
SC No 1355 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 24 June 2022
(Davis J)

DELIVERED ON:

11 April 2025

DELIVERED AT:

Brisbane

HEARING DATE:

13 March 2025

JUDGES:

Mullins P, Boddice JA and Crow J

ORDER:

The application for leave to appeal the sentence ought to be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty in relation to their involvement in a drug trafficking syndicate – where the applicant was sentenced to nine years imprisonment with a non-parole period of four years and six months for trafficking in dangerous drugs – whether the sentence was manifestly excessive

Evidence Act 1977 (Qld), s 132C

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, applied
Island Maritime Limited v Filipowski (2006) 226 CLR 328; [2006] HCA 30, cited
Keen v R [2024] NSWCCA 157, applied
Martellotta v R [2021] NSWCCA 168, cited
R v Humphrys [1977] AC 1, cited
Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42, cited
The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55, cited

COUNSEL:

T Ryan KC with G Perry for the applicant
J D Finch for the respondent

SOLICITORS:

AW Bale & Son for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. MULLINS P:  I agree with Crow J.

2. BODDICE JA:  I agree with Crow J.

3. CROW J:  Operation Papa Tennessee was a police operation in relation to the activities of a drug syndicate involved in the importation and trafficking of methylamphetamine from July 2017 to May 2019. The applicant was one of six persons who were apprehended, charged, pleaded guilty and were sentenced in respect to their involvement in the drug trafficking syndicate.

4. On 24 June 2022, Davis J sentenced the applicant to nine years' imprisonment with a non-parole period of four years and six months for trafficking in dangerous drugs.

5. On 12 March 2024, the applicant filed an application for leave to appeal against sentence, alleging four grounds of appeal; that the sentence was manifestly excessive, that the judge acted on wrong principles, that the applicant's psychiatric conditions were not taken into account by the sentencing judge, and “misrepresentation by counsel”.

6. On 4 July 2024, Kelly J sentenced Shan Chiang to six years' imprisonment with a non-parole period of 12 months.

7. On 13 February 2025, the applicant sought leave to abandon the above four grounds of appeal and in lieu thereof argue only one ground of appeal that “the applicant has been left with a justifiable sense of grievance about the sentence imposed upon him, warranting a reduction in it, having regard to the sentence imposed upon his

   
   

   co-offender, Shan Chiang.”

8. The applicant's complaint is that he has a justifiable sense of grievance as he was sentenced to nine years' imprisonment as an associate of the syndicate that trafficked for just under four months whereas Chiang received a six-year sentence.  The applicant submits that his sentence offends the parity principle as there was a marked disparity with the sentence imposed upon the co-offender Shan Chiang.

9. The parity principle was discussed in Green v The Queen (2011) 244 CLR 462, per French CJ, Crennan and Kiefel JJ at [31], as follows:

   “[31]  Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may “reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender”. The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: “the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.” The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.”

   [Footnotes omitted]

10. The applicant's senior counsel submitted that it cannot be demonstrated that there is an error in the sentencing discretion by Davis J or Kelly J:

    “…Rather, it is submitted that the disparity that gives rise to the grievance resulted from the discordant facts that were placed before the Court by the prosecuting agency regarding the objective criminal activities of the same syndicate, in which both offenders participated, without explanation.”

11. The applicant’s senior counsel's first submission ought to be accepted, namely, there was a great deal of difference between the facts alleged against the applicant and that against Chiang in terms of the operations of the syndicate. However, the second submission, that the significant change in the facts relating to the activities of the syndicate could lead to a justifiable sense of grievance, cannot be accepted.

12. It is well accepted that there is no estoppel or issue estoppel in the criminal law.[1] The consequence of this is that the Crown cannot be estopped alleging one set of facts against a co-offender and a different set of facts against another co-offender. An agreement by one co-offender to a set of facts for that co-offender’s sentence cannot bind any other co-offender to that set of facts for the purpose of the other offender’s sentence as that would offend the principle of procedural fairness (R v Keen

    
    

    [2024] NSWCCA 157 per Yehia J at [128]-[130]).

    [1]R v Humphrys [1977] AC 1; Rogers v The Queen (1994) 181 CLR 251 at 267-277; The Queen v Carroll (2002) 213 CLR 635; Island Maritime Limited v Filipowski (2006) 226 CLR 328 and Keen v R [2024] NSWCCA 157 at [8] per Wilson J.

13. A parity ground does not afford an applicant an opportunity to impugn the sentencing judgment of a co-offender by alleging error in the sentencing judgment for a

    
    

    co-offender.[2] Even when co-offenders are sentenced on the same agreed facts, one co-offender may allege further facts, which if accepted, can alter that co-offender’s level of criminality and therefore justify disparate sentences.[3]

    [2]Martellotta v R [2021] NSWCCA 168 per Adamson J at [58].

    [3]Martellotta (supra) per Adamson J at [59].

14. The applicant relied upon Keen v R (supra) in support of its argument that the applicant had a justifiable sense of grievance with respect to his sentence. The decision in Keen however did not support the applicant, but rather the respondent, as in Keen the facts upon which the co-offenders were sentenced were agreed (see [80]). The vice that was complained of in Keen was identified at [123] by Yehia J that starkly different positions have been adopted by the Crown before two differently constituted benches about the same offender and the same offending conduct. The differing positions taken by the Crown in respect of proceedings caused Yehia J “considerable disquiet” at [121].

15. As explained by Wilson J, not only is the Crown not bound by issue estoppel with respect to the facts, the Crown can also not be bound by differing submissions advanced in other proceedings, even if they relate to the case against an applicant. Wilson J summarised the position at [9]-[10] as follows:

    “[9]     Here, the Crown contended before one Bench of this Court (in Barkl; Dumbrell; and Theobald) that the applicant was a low level functionary or labourer subordinate to his co-offenders, whilst in this matter it submitted that his role was more in line with that of his co-offenders. Despite the inconsistency of approach, the Crown cannot be bound by differing submissions advanced in other proceedings touching on the case against the applicant, and its different positions is not relevant to the determination of the matter before the Court as presently constituted. However, a very high standard of conduct is expected of the Crown in its conduct of criminal matters and, in my opinion, that standard is not necessarily met where the Crown conducts related cases in an inconsistent way.

    [10]Sometimes, a different approach in related matters is dictated by differences in evidence, where evidence admissible against one co-accused or co-offender is not admissible against another. No criticism could be made of the Crown in a situation of that nature. Criticism can be levied however, where different approaches to the same subject appear to be dictated by convenience or a desire to secure a particular result. The Crown should always be cognisant of its vital role in the administration of the criminal justice system, and the critical importance of it conducting all prosecutions with fairness and integrity. Where necessary, that will mean presenting a consistent stance on related matters, even if the Crown’s ultimate position is disadvantaged by that approach.”

16. The present application does not involve the Crown taking different submissions on the same set of facts, but rather different submissions on different sets of facts.

17. The statement of facts for the sentencing of the applicant was agreed, and the different statement of facts for the sentencing of Chiang was agreed. Neither Chiang nor the applicant were obliged to agree to any particular factual basis for their sentencing. If the facts are not agreed, then facts are required to be found utilising section 132C of the Evidence Act 1977 (Qld).

18. On 24 June 2022, the applicant agreed, for the purposes of sentencing, the accuracy of the statement of facts placed before Davis J, and was sentenced on the basis of the accuracy of those facts.  A little over two years later, on 4 July 2024, Chiang was sentenced by Kelly J upon different facts not only with respect to the involvement of Chiang in the trafficking syndicate, but as to the level of criminality involved in the syndicate’s activities.

19. Apart from the different terms in which the syndicate’s activities were described respectively for the sentencing of the applicant and the sentencing of Chiang, Chiang was sentenced for trafficking over a period of seven months on the basis that his role within the syndicate commenced as a street level trafficker who developed into a middle manager role in the wholesale drug dealing syndicate.  For Chiang’s sentence, persons were identified as working complicitly and subordinate to Chiang.  Chiang therefore performed the role of a middle manager/dispatcher.  The police located a vehicle at Chiang’s residence when they executed a search warrant.  There was a purpose-built compartment in the vehicle that contained 63.25 grams of pure methylamphetamine within 84.26 grams of substance and $20,050 in Australian currency.

20. Even though the applicant pleaded guilty to trafficking over a lesser period of four months, it was on the basis he was a courier and “stash-sitter” for a very significant wholesale trafficking operation.  The statement of facts for the applicant’s sentencing showed the applicant’s involvement in much greater quantities of methylamphetamine and money than was disclosed in the sentencing of Chiang.  When the police executed a search warrant during the trafficking period applicable to the applicant, his fingerprints were found on clip seal bags containing methylamphetamine and brown paper bags with customer names, drug weights and cash amounts written on them.  During the same search the police located over 10 kgs of substance in which there was approximately 8 kgs of pure methylamphetamine.  When the applicant was arrested, he was found in possession of 7,355.7 grams of pure methylamphetamine within 9,915.1 grams of substance.  He was also found in possession of $117,930.

21. If in truth the drug trafficking activities of the syndicate was of a much lesser nature, as set out in the agreed facts for the sentencing of Chiang, then Lloyd ought not to have agreed to those facts upon which he was sentenced.  The reduction in criminality with respect to the activities of the syndicate and, in particular, the activities of Chiang, cannot logically suggest that the facts that the applicant agreed to some two years earlier were inaccurate.  As Wilson J said in Keen at [10] factual differences can be dictated by differences in evidence. This Court cannot conduct a de facto review of prosecutorial charging discretions under the parity rubric.[4]

    [4]Green v The Queen (2011) 244 CLR 462, per French CJ, Crennan and Keifel JJ at [30].

22. The application for leave to appeal the sentence ought to be refused.