R v May, Fowles, Eaton and Brown

[1998] QCA 213

IN THE COURT OF APPEAL	[1998] QCA 213
SUPREME COURT OF QUEENSLAND

C.A. No. 40 of 1998. C.A. No. 52 of 1998. C.A. No. 54 of 1998. C.A. No. 55 of 1998.

Brisbane

[R v. May, Fowles, Eaton & Brown]

T H E Q U E E N

v.

BRIAN NORMAN MAY

(Applicant)

JOHN GARRETT LAMBERT FOWLES

(Applicant)

GRAHAM HERBERT EATON

(Applicant)

RONALD BRANNAN BROWN

(Applicant) Appellant

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Pincus J.A. Davies J.A. White J.

___________________________________________________________________________

Judgment delivered 24 July 1998

Judgment of the Court

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ORDERS:

1.          MAY - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

2.          FOWLES - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

3.          EATON - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

4.          BROWN - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCE IMPOSED BELOW SET ASIDE TO THE EXTENT OF SUBSTITUTING A SENTENCE OF 8½ YEARS IMPRISONMENT WITH A NON-PAROLE PERIOD OF 4 YEARS. BROWN’S SENTENCE OTHERWISE CONFIRMED.

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CATCHWORDS: CRIMINAL LAW - sentence - parity - whether applicant has a

legitimate sense of grievance founded on a comparison between the sentence imposed on him and that imposed on another participant in the same criminal venture - criminal venture to import cannabis resin into Queensland - 8 tonnes of cannabis resin imported - 13 people pleaded guilty to charge of being knowingly concerned in the importation into Australia of a commercial quantity of cannabis resin.

Customs Act 1901 (C’th) - s. 233B(1)(d)

Counsel:	Mr D Murray for the applicant May. Mr B Devereaux for the applicant Fowles. Mr T Martin S.C. for the applicant Eaton. Mr J Hunter for the applicant/appellant Brown. Mr R Hanson Q.C. with him Mr D Boyle for the respondent.
Solicitors:	Peter Russo & Associates for the applicant May. Legal Aid Queensland for the applicant Fowles. Robertson O’Gorman for the applicant Eaton. Legal Aid Queensland for the applicant/appellant Brown. Commonwealth Director of Public Prosecutions for the respondent.
Hearing date:	7 May 1998.
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 24 July 1998

These are four applications for leave to appeal against sentence, three of which are based mainly on the contention that the applicant harbors a legitimate sense of grievance, founded on a comparison between the sentence imposed on him and that imposed on another participant in the same criminal venture. In addition, some arguments were advanced that the applicants had been harshly treated by comparison with others who had committed similar offences, in unrelated cases.

The "Highlander", a large yacht, made three voyages to rendezvous with another ship near the Solomon Islands, the purpose being to import cannabis resin into Queensland. The first two voyages were unsuccessful; when the cannabis was, ultimately, successfully imported, 8 tonnes of cannabis resin of value at least $64 million were brought ashore north of Tin Can Bay on 13 December 1996. A little over a year later, on 2 February 1998, 13 people pleaded guilty in the Supreme Court, each to a charge of being knowingly concerned in the importation into Australia of a commercial quantity of cannabis resin contrary to s. 233B(1)(d) of the Customs Act 1901; the maximum penalty is life imprisonment. There was a sentencing hearing at which oral evidence was given by police and by one of the applicants, R B Brown, and all of the 13 accused were sentenced to terms of imprisonment. Seven were sentenced to 8 years imprisonment, three to 9 years, two to 10 years, and one (J A Roy) to 14 years. The non-parole periods fixed were of various lengths, the lowest being 3 years and the highest 7 years. These applicants received head sentences varying from 8 years to 10 years. One of the difficulties the sentencing judge (Williams J.) faced was that of determining comprehensively the respective roles of the applicants and others in the importation. The principal source of information was Exhibit 1, consisting in a collection of statements of fact made by the prosecution, one relating to each of the accused. Brown’s evidence, which the sentencing judge found unconvincing, attempted to minimise what might otherwise have been thought to be his role. Generally speaking the applicants do not challenge the accuracy of the sentencing judge’s account of the facts; nor is there any suggestion that the sentences imposed were beyond the range which is appropriate for offences of this character. We have been referred to a number of appellate decisions which justify the imposition of sentences at the general levels at which they were imposed here; in Queensland one finds Leeth (1989) 42 A.Crim.R. 128 in which the sentences ranged up to 25 years; Brauer [1990] 1 Qd.R. 332 where the maximum term imposed was 9 years 6 months; and Scouller (C.A. Nos. 250, 263 and 265 of 1994, 9 February 1995), where the highest sentence was 15 years imprisonment.

The applicant May, who was sentenced to 10 years imprisonment with a 5 year non-parole period, based his attack on the judge’s treatment of him principally on what were argued to be two significant omissions from his Honour’s discussion of the circumstances of his case. They were that, although references had been produced attesting to May’s good character, the judge said nothing about them and that his Honour appeared to have overlooked the aspect of remorse. Counsel argued that these two omissions were seen to be important, when one had regard to the fact that the judge gave attention to both references and remorse when sentencing others of the accused before him.

As to the references, it seems unlikely that the judge forgot that they had been presented to him; it is also we think unlikely that the judge failed to take into account such indications of May’s remorse as were placed before the Court. Like his 12 co-accused, May pleaded guilty and the prosecutor informed the judge that the plea had been indicated well before committal. The references were supplied to the sentencing judge’s associate two days before his Honour imposed sentences, and the judge informed counsel he had read them, but counsel based no submissions to his Honour upon them. Nor did counsel make any submission to the judge to the effect that his client was remorseful. It does not appear to us that, in these circumstances, the judge not having discussed the references which were tendered on May’s behalf, nor having mentioned remorse, are indicative of any error in the sentencing process.

Although as we understood the submissions on behalf of May, it was not said that his sentence should be reduced as being outside the appropriate range, it is desirable to say something on that subject. He is 44 years of age and has some criminal history. Apart from some offences which resulted in his being fined - including two assaults - he has in his record an offence for receiving stolen property in 1976 and that attracted a prison term. There is to be found also an offence of cultivating a prohibited plant in 1984 and possessing a dangerous drug in 1991. As to his involvement in the drug importation, the judge was informed by the statement relating to May, forming part of Exhibit 1, that his contribution was to obtain a number of small boats and other equipment necessary to effect the landing of the drug, to assist in identifying a suitable location for the landing, to arrange for a number of persons to assist with it, and thereafter to store 1 to 1½ tonnes of the drug on his rural property. It was said that he was well- known to the ringleader J A Roy with whom he regularly communicated and that he had a continuous involvement with the plan between August/September and December 1996. Electronic surveillance carried out between October and December 1996 was said to reveal a "high degree of familiarity between the two" - i.e. between May and J A Roy.

As to the storage of drugs on May’s property, Mr Hanson Q.C. who led Mr Boyle for the respondent pointed out that a recorded conversation had May saying to one of the co-accused who had mentioned that he had "a tonne and a half comin’ here mate": "There’s sixteen mill comin’ here mate". Mr Hanson suggested that perhaps that was May’s estimate of the value of the resin to be stored on his property.

The sentence imposed on May places him with Brown in what might be called the second rank, below J A Roy who was given 14 years, but above the rest of the persons sentenced who received either 8 years or 9 years. Counsel for May did not submit that he was inappropriately so placed. In view of his close and extensive involvement with the whole venture there is no reason to think that May was given an inappropriate sentence; we would dismiss his application.

The arguments for each of the other three applicants depended on the proposition that they had been unfairly treated by comparison with one or more of their co-accused. Some contentions were put forward that there was a lack of parity, as between an applicant and a person selected as a participant in another, unrelated, offence. It being quite clear, in our opinion, that the sentences imposed were, generally speaking, in the right range, it appears to us that the proper course is to focus principally upon the relationships to which counsel have drawn attention, between the sentences imposed on these applicants and others imposed on participants in the same importation. One advantage of this course, as compared with trying to achieve parity with offenders involved in other importations, is that the Court has before it detailed accounts of the circumstances of each of the present applicants and those with whom it is sought to compare them, as well as the full submissions made to the court below.

The applicant Fowles based his argument, in the outline submitted on his behalf, on two matters, one being that the judge misunderstood the reason for the applicant’s involvement in the scheme and the second that he was unfairly treated by comparison with one of his co-accused, one Ramen. When the matter was argued Fowles’ counsel suggested, further, that if May’s sentence was reduced that should produce a reduction in Fowles’; it is unnecessary to discuss that contention.

With respect to Fowles’ first point, it was submitted on his behalf, below, that all he hoped to gain from his involvement was repayment of a debt which was due to him and the chance to do some work, for pay. What that amounted to was that he did not wish to earn a cent more than he was, and would be by reason of activities other than this importation, honestly entitled to. The judge took the view that Fowles "obviously got himself involved in this venture for financial reasons", without specifying what those reasons were. The sentence imposed certainly implies that his Honour did not give any weight to the improbable assertion made on Fowles’ behalf to which we have alluded. The judge also referred, erroneously as it appears to us, to "financial hardship" undergone by Fowles, but that slip could not have augmented the sentence.

The argument comes down then to a comparison between Fowles’ circumstances and those of Ramen. The two are about the same age and neither has any previous conviction. Each was sentenced to 9 years imprisonment with a non-parole period of 4 years. Fowles’ counsel said that a difference between the two was that Ramen, as the skipper of the vessel on the final voyage and a crew member in the second voyage, had a more crucial role than did Fowles. According to Exhibit 1, Fowles’ contribution was to assist in equipping and repairing the "Highlander" at different times and monitoring progress of efforts to rendezvous with a supply vessel though radio and seaphone communications. He was said to be privy to details of the plan and to "different forms of prearranged coded terminology to be used", and to be well known to J A Roy. The statement goes on to give details of these allegations. Fowles’ activity in connection with the scheme began about 19 October 1996 when he arranged to buy a communications system for the "Highlander" making cash payments totalling $8,000. Ramen had the involvement we have indicated - i.e. as a crew member on the second journey and as skipper on the third. We confess to some surprise that it is suggested that Ramen’s involvement was of more significance than that of Fowles’; we should have thought the contrary to be perhaps arguable. The facts presented to the sentencing judge suggested that Fowles was operating at a significantly higher level than was Ramen. Fowles, it seems quite clear, gave or passed on instructions to the "Highlander", whereas there appears to be nothing to suggest that Ramen ever gave instructions to anyone other than his two fellow crew members, on the third voyage.

In our opinion the argument advanced on behalf of Fowles has no substance and his application should be refused.

The third applicant Eaton, who was sentenced to 8 years imprisonment with a non-parole period of 3½ years, argued in the outline submitted on his behalf for a reduction of 6 months in the non-parole period on the basis of a comparison with Ramen. In oral submissions, the point emphasised was that it was Ramen who skippered the vessel and in fact recruited the applicant Eaton. Eaton is 36 years of age and has only a minor criminal history. Eaton’s involvement began on 21 November 1996 when he was seen on the "Highlander" which was then being repaired and having communications equipment installed.

Counsel for Eaton pointed out that in other, similar cases, which it appears the primary judge applied, people in positions comparable to Eaton’s received the same sentence - 8 years with a non-parole period of 3½ years; but counsel said in those cases the captain received a higher sentence than did Ramen. The essence of the argument was that there should have been a discrepancy of 2 years, not 1 year, between the head sentence of Ramen and that of Eaton. The argument has some weight, but should not in our opinion be accepted. Where a judge is sentencing, as here, a substantial number of persons whose circumstances vary, it will often be possible to make comparisons between pairs of them in support of a parity argument; but in our opinion such arguments should not ordinarily be accepted unless there is a discrepancy so marked as genuinely to be likely to produce a sense of unjust treatment. The 2 year gap which, according to the argument for Eaton, should have been established, could of course have been achieved by giving Ramen 10 years instead of 9 and it may perhaps be thought that he was lucky not to have received that higher sentence. But Eaton and his fellow crew member Hudson could not reasonably have imputed to them a sense of injustice, based on the fact that the sentence the judge imposed did not create the 2 year gap which would have existed had Ramen received the 10 year sentence which skippers in other cases got.

We would dismiss Eaton’s application.

The last applicant is Brown, who was sentenced to 10 years with a non-parole period of 5 years. He is 50 years of age, has no criminal history and was as we have mentioned the only person who gave evidence. He did so in an unsuccessful attempt to minimise his role. The judge found that he was an "active syndicate member", a conclusion which is unchallenged. In Brown’s outline it is argued that the sentence imposed on him should have been less than, instead of the same as, that imposed on May.

One odd feature of the case is that the submissions made for the Crown below would, if accepted, have created a 3 year gap between Brown and May; the prosecutor presumably regarded May’s involvement in the importation as of substantially more significance than that of Brown. Before us Mr Hanson argued that because Brown and May were both "obviously in management positions", imposing a 10 year sentence on each fitted neatly.

It is not clear to us why two participants each in a management position should necessarily receive the same sentence. One striking difference between Brown and May was that Brown was involved for a period of about 3 weeks beginning about 21 November; May on the other hand became a participant about 3 months earlier. It is true that it is possible that Brown’s connection with the matter in truth began before the date on which it was first detected, 21 November 1996, but it does not seem to us right to consider Brown’s case on the basis of a mere suspicion that he might have come in significantly earlier. It is also true that once Brown began to work on the project he was, at least from time to time, extensively involved. His task was, according to the statement of facts relating to him, to participate in preparing the "Highlander" for the last of its three trips, the one which resulted in importation. During the time Brown was on the vessel in late November, work was done on the sails and rigging and new communications equipment was installed. During that time Brown arranged with another participant, Hyde, to have Brown issued with a cruising permit as master of the vessel and on the same day he was aboard the "Highlander" when a sailmaker inspected the sails with a view to some repairs being carried out. The next day he and Fowles returned malfunctioning equipment to the vendor and had it replaced; $1,330 was refunded to Brown and he told people at that time that he owned the vessel. On 25 November, Brown helped the sailmaker carry the repaired sails to the vessel and paid the sailmaker in cash. On 26 November 1996 Brown drove a car with a ramp strapped to the roof rack onto the wharf and helped to carry it on to the vessel; its function was to assist in transferring the resin. He was also involved in monitoring communications with the vessel while it was at sea and at other times sought information from others who had been doing so. Although Brown’s involvement in the unloading is not very clear, it is a reasonable inference that he was connected with it and that he was to receive some substantial amount for his work.

A perusal of the statement about May’s involvement gives, in our opinion, the distinct impression that he was responsible for a substantial amount more work than Brown. We have already referred to the fact that May’s involvement started much earlier than Brown’s. In submissions below the prosecutor referred to May as being "in effect, J A Roy’s principal off-sider, if you like". The judge accepted the description "principal offsider" and held that he played a very major role in recruiting other persons to participate in the venture. May was the one who was "primarily responsible for putting together the landing crew and ensuring that all at that point was in order to receive the imported drug". As we have mentioned, he was to receive 1.5 tonnes of the cannabis onto his property. His Honour was prepared to infer that it was going to be stored on a long-term basis.

In our opinion it is Brown alone who has established the necessary marked discrepancy, by comparison with May. Not only did May do more towards the success of the importation, over a substantially longer period, but he appears to have been, on the judge’s finding, substantially second in command; there was no suggestion that Brown occupied that position.

It was argued on Brown’s behalf that his sentence should have been 8 years imprisonment with a non-parole period of 4 years. Whereas there is something to be said for that it appears to us that a distinction should be made, against Brown, by comparison with the general level of activity of participants who were sentenced to 8 years imprisonment.

As to Brown, we would favour replacing the sentence imposed upon him by one of 8½ years with a non-parole period of 4 years.

Summary

We would dismiss the applications made by May, Fowles and Eaton. In relation to Brown, we would grant the application and allow the appeal to the extent of substituting for the sentence of 10 years imposed upon him one of 8½ years and substituting for the non-parole period of 5 years a non-parole period of 4 years.