R v McMurray
[2011] QCA 319
•8 November 2011
SUPREME COURT OF QUEENSLAND
CITATION:
R v McMurray [2011] QCA 319
PARTIES:
R
v
McMURRAY, Alexander Stuart
(applicant)FILE NO/S:
CA No 156 of 2011
SC No 247 of 2011DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
8 November 2011
DELIVERED AT:
Brisbane
HEARING DATE:
26 October 2011
JUDGES:
Margaret McMurdo P, Fraser and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Application for leave to appeal against sentence refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of conspiracy to import a commercial quantity of a border controlled drug and one count of conspiracy to import a marketable quantity of a border controlled drug – where the applicant was sentenced to a head sentence of three years and six months imprisonment with a non-parole period of one year and three months – where the applicant and his co-offenders planned to import 500 kilograms of cannabis from Papua New Guinea – where the applicant was addicted to cannabis and had a criminal record in South Australia which was not put before the sentencing judge – where the applicant had favourable references – whether the sentence imposed was manifestly excessive
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where the applicant’s role in the scheme was to provide funds and to distribute a quantity of the cannabis in South Australia – where two of the applicant’s co-offenders received the same sentence as the applicant – where the applicant alleged that his role in the scheme was less serious than his co-offenders – whether the applicant could have a justifiable sense of grievance that all three co-offenders were given the same sentence
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, applied
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied
R v Bell, Bell, Bell & Isles [1995] QCA 40, distinguished
R v Lake (2007) 174 A Crim R 491; [2007] QCA 209, consideredCOUNSEL:
The applicant appeared on his own behalf
S G Bain for the respondentSOLICITORS:
The applicant appeared on his own behalf
Director of Public Prosecutions (Commonwealth) for the respondent
MARGARET McMURDO P: I agree with Fraser JA's reasons for refusing this application for leave to appeal against sentence.
FRASER JA: On 26 May 2011 the applicant was convicted on his own pleas of guilty of one count of conspiracy to import a commercial quantity of a border controlled drug between 23 September 2009 and 6 December 2009 (count 1) and one count of conspiracy to import a marketable quantity of a border controlled drug between 7 December 2009 and 12 December 2009 (count 2). (There were two counts rather than one only because the volume of drug intended to be imported was reduced during the course of the conspiracy.) On the first count the applicant was sentenced to imprisonment for three years and six months and on the second count he was sentenced to imprisonment for two years and six months. It was ordered that those periods of imprisonment be served concurrently and a non-parole period of one year and three months was fixed.
The applicant has applied for leave to appeal against sentence on the ground that it is manifestly excessive. The applicant also argued that his sentence was not in parity with the sentences imposed on his three co-offenders. All four offenders were sentenced at the same time. Two of them, Jacqueline Whitehouse (“Jackie”) and her mother, Lydia Whitehouse (“Lydia”), were given the same sentence as the applicant. Patrick Barr was given a more severe sentence, four years imprisonment with a non-parole period fixed at one year and six months. (Barr also pleaded guilty to an additional charge, possession of child exploitation material, but that offence had no bearing on the sentence imposed for the conspiracy offences.)
The sentence proceeded on the basis of a statement of facts tendered by the prosecutor, with some additional facts identified in submissions made by the prosecutor and by the applicant’s counsel. During the period covered by the two counts, an under cover operative attended meetings and had telephone conversations with the applicant’s co-offenders. During the first meeting on 24 September 2009, Barr and Jackie told the operative of their plan to import 500 kilograms of cannabis from Papua New Guinea (“PNG”) to Australia. They told Barr that they could obtain that cannabis because Jackie had relatives in PNG who could get the cannabis to a port in Lae. They outlined the assistance they required from the operative to carry out the importation. It was agreed that the operative would transport the cannabis from Lae to Australia using a boat. Barr made a vague reference to the street price of the imported cannabis being $5,000,000.
In further meetings between the operative, Barr and Jackie on 29 September 2009 and 22 and 24 October 2009, they discussed timeframes and methods for raising the money to fund the operation and the packaging and storage of the drugs. At the 29 September 2009 meeting it was agreed that the operative would receive 200 kilograms of cannabis (40 per cent of the drug to be imported) as payment for arranging the transportation and that he would be paid $2,000 up front as a show of good faith. In the course of a discussion about how Barr and Jackie would distribute or sell their share, Barr mentioned talking to the applicant. Barr subsequently contacted the applicant, who resided in Adelaide, and sought his assistance both in funding the importation and in distributing the cannabis when it arrived in Australia. The applicant agreed to provide funds and told Barr that he had buyers for the cannabis in South Australia. It was agreed that the applicant would receive a “cut” of 10 per cent.
Subsequently, on 16 November 2009, the applicant transferred $1,000 into Barr’s account. At a meeting between the applicant’s three co-offenders and the operative on 24 October 2009, the operative was given the names and details of the contacts in PNG together with contact details for Lydia, and an email address for Barr and Jackie. There was discussion about the difficulty in locating a suitable storage place at the port in Lae and Barr agreed to make arrangements about that after liaising with Lydia. Barr advised the operative that he had been speaking with the applicant and that the applicant’s funds would be provided by 30 October 2009. On 12 November 2009 Barr, in the presence of Jackie and Lydia, gave the operative $1,500 as payment for fuel costs for the boat. The operative was then informed that the amount of cannabis available had been reduced to about 250 kilograms because of difficulties in obtaining the 500 kilograms. It was agreed that the boat would set sail for PNG on 20 November 2009.
Lydia subsequently provided the operative with details of the contact in PNG who would arrange for the transportation and storage of the cannabis. Lydia transferred money to her contacts in PNG to fund the purchase. She travelled to PNG on 30 November 2009. On 7 December 2009 the operative was told by the PNG contact that the quantity of the cannabis available had been reduced to 25 kilograms. On 10 December 2009 the operative relayed that information to Barr. There was a renegotiation and it was decided to proceed with the importation of the smaller quantity. The operative had a discussion with the applicant about distributing the cannabis and charging a 10 per cent “cut” as negotiated with Barr.
On 12 December 2009 members of the PNG Royal Constabulary Transnational Crimes Unit searched a warehouse in Lae and found bags containing 18.9 kilograms of cannabis. A PNG national was subsequently arrested. He participated in a record of interview and made full admissions concerning his involvement in the conspiracy. He was subsequently convicted and sentenced in the Magistrates Court in Lae. On the same day, search warrants were executed at the addresses of the applicant and his three co-offenders. The applicant, Barr and Jackie participated in records of interview and made admissions. Lydia was arrested upon her return to Australia and declined to participate in a record of interview.
At the sentence hearing the applicant’s counsel submitted that at the relevant time the applicant was addicted to cannabis and smoked every single day, smoking about an ounce of cannabis every week. He had no distribution network in South Australia but thought that he might be able to supply the cannabis to those from whom he purchased cannabis for his personal use. The applicant thought it might be a good idea to assist his friend Barr by providing him with financial assistance and the applicant would possibly receive a benefit for that. Counsel submitted that the applicant’s criminality was less than that of Barr, Lydia and Jackie, because the applicant was approached after the plan had originally been “hatched” and he was not an organiser. Whilst the applicant was “the person that raised the money”, he was asked for $2,000 and, being unemployed at the time, all he could scrape together was $1,000.
The applicant represented himself in his application for leave to appeal. He argued that the sentencing judge erred in finding that the applicant was a co-conspirator with Barr, Lydia and Jackie. That argument could not succeed, not least because the applicant pleaded guilty to conspiring with them to import the cannabis.
The applicant argued that he was to perform a minor role as a “salesman on 10% commission”. However, whilst the statement of facts does not make it clear whether the applicant was to receive 10 per cent of the volume of cannabis or 10 per cent of the sale prices of the drugs he distributed, the prosecutor submitted at the sentence hearing that in exchange for a total amount of $3,000 which the applicant was asked to provide, as well as his help in distributing the cannabis, the applicant was to receive a 10 per cent “cut of the cannabis”. In response, the applicant’s counsel submitted that when the applicant was first contacted, Barr said that he required some money in order to import some cannabis. He told the applicant that, for his money (the applicant understood that he would be exposed financially to the extent of $2,000) the applicant would get four kilograms to do with as he pleased. The sentencing judge then observed that the applicant was to get a cut of 10 per cent. (In that context, this was plainly a reference to 10 per cent of the imported cannabis.) The applicant’s counsel agreed with his Honour’s observation, noting that there were further discussions later in time. The applicant’s counsel subsequently submitted that: the applicant certainly accepted the “criminality that he supplied the funds, that $1,000, and that he was going to somehow assist in the distribution of that cannabis”; initially “he was of the understanding that he would receive four kilograms”; and “as things progressed, both the undercover operative and Mr Barr arranged with him the prospect of getting some larger cut of the distribution through South Australia.” In light of those submissions, the applicant was correctly sentenced on the basis that, in exchange for the finance and his distribution of cannabis, he would be given 10 per cent of the imported cannabis.
The applicant argued that the sentencing judge erred in holding that the $1,000 he provided to Barr was critical to the operation’s success. He made the point that the $1,000 he provided must have been insufficient to fund the transport of the cannabis from PNG to Australia, and from a landing point in Australia to Adelaide. That may be one of the features which informed the sentencing judge’s remark that the plan bore “hallmarks of delusion.” The offenders presumably would have required much more money to implement their plan, but the sentencing judge was not mistaken in thinking that the applicant’s financial contribution was vital. No other immediately available source of funds was identified. The very fact that the co-offenders were prepared to offer the applicant as much as 10 per cent of the imported cannabis for his efforts itself suggests that the applicant’s role was critical to the operation’s success.
The applicant argued that he should have been given a less severe sentence than Jackie and Lydia because his role was much less important than their roles. He argued that this was so because: he was not an instigator of the offence; the scheme was set up before he was involved; he was not involved in meetings with his co‑offenders; and he was not involved in organising the purchase, storage or transport of the cannabis. (He also argued that he was not to receive a percentage of the cannabis in exchange for his role, but I have already rejected that argument.) This argument invoked the principle identified in Lowev The Queen,[1] which was described in Postiglione v The Queen[2] as being that “equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’”. The mere fact that the applicant can point to some circumstances which suggest a greater degree of culpability by his co-offenders is insufficient to justify application of the “parity principle”. It is necessary to take into account all of “the different circumstances of the co-offenders in question and their different degrees of criminality.”[3] In Postiglione, Gummow J observed that Lowe is authority for the principle that the Court of Criminal Appeal intervenes “where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done.”[4]
[1](1984) 154 CLR 606 at 610 per Gibbs CJ, 613 per Mason J, and 623 per Dawson J.
[2](1997) 189 CLR 295 at 301.
[3]Postiglione v The Queen (1997) 189 CLR 295 at 301 - 302.
[4](1997) 189 CLR 295 at 323.
The sentencing judge accepted that Barr should be given a more severe sentence but rejected the argument by the applicant’s counsel, which the applicant repeated in this application, that the applicant’s sentence should be more lenient than the sentences imposed on Jackie and Lydia. His Honour observed that the sentence must necessarily reflect the various roles adopted in the commission of the offence by the four offenders. Barr’s sentence was more severe because, as the sentencing judge held, he was the “instigator and the driving force of the conspiracy.” His Honour held that the other offenders all played, in various ways, an important role. Lydia was essential to the prospect that the scheme might come to fruition and her commitment to it was evidenced by her travelling to PNG to facilitate it. Jackie played an important role in planning the importations and in meeting with the operative to progress what she believed was his role in transporting the goods to Australia. As I have already mentioned, the sentencing judge also held, correctly in my respectful opinion, that the applicant’s role was critical to the operation’s success.
As to those offenders’ personal circumstances, the sentencing judge observed that there was no material point of distinction in terms of ages, except in relation to Lydia who had reached about her mid-50s. The applicant was 27 years old at the time of the offences and 29 years old when sentenced, and the other co-offenders were of similar ages. The applicant was addicted to cannabis. It would be unsurprising if that affected his judgement in deciding to enter into the plan to import cannabis from PNG to Adelaide in the hope that the applicant’s supplier might agree to distribute it. However, the applicant’s co-offenders must have been similarly disadvantaged in their own thinking, since they too participated in the scheme.
All of the offenders pleaded guilty. The sentencing judge regarded that as the most important circumstance in mitigation of the penalty. The applicant had the benefit of some favourable references. Most importantly, his employer wrote to the effect that: the applicant, a maintenance fitter and turner, had become a very important asset to the employer; it was very difficult to find a fitter of his quality; the applicant held a senior position in the employer’s workshop; and the applicant’s leadership and skills were first class. (At the hearing in this Court the applicant sought to tender a more recent reference from his employer to similar effect. I would refuse leave to adduce the new evidence. It would have no bearing upon the result of the application.) But Lydia’s personal circumstances were no less favourable. She had reached about her mid-50s with an unblemished record, and she was prevailed upon to participate by her perception that it was necessary for her to do so to support her daughter’s relationship with Barr.
As I have indicated, the applicant was sentenced on the footing that he had no criminal record. Apart from Jackie, who had a conviction for social security fraud, the applicant’s co-offenders were in the same position. At the hearing of the appeal, the respondent sought leave to tender evidence that the applicant was convicted on 15 April 2011 in a Magistrates Court in South Australia of offences of cultivating a controlled plant and unlawful possession. The evidence suggested that this conviction occurred five or six weeks before he was sentenced for the present offences. I would refuse the application to adduce this new evidence because there is no evidence that the respondent could not, with reasonable diligence, have obtained the evidence for use in the sentence hearing. In any event, the sentencing judge was told that the applicant was addicted to cannabis. The conviction would be of marginal significance.
In my respectful opinion there was no error in the sentencing judge’s decision not to impose a more lenient sentence upon the applicant on account of the suggested differences between the culpability and personal circumstances of the applicant on the one hand, and Jackie and Lydia on the other hand. The applicant could not have a justifiable sense of grievance that the three of them were given the same sentence.
The applicant referred to R v Bell, Bell, Bell & Isles.[5] N Bell, a 25 year old man, conspired with his father R Bell, his brother S Bell, and his de facto wife, Isles, to buy a yacht for the purpose of sailing to PNG and buying cannabis with the assistance of a PNG national with whom Isles was acquainted. R Bell financed and co-ordinated the enterprise. N Bell’s role was limited to looking after his father’s air conditioning business in his absence, transmitting funds to his father, potentially sharing the proceeds, and making some arrangements to sell the cannabis. S Bell’s role was to crew the yacht, and he had familiarised himself with navigational equipment and charts. N Bell’s sentence was reduced on appeal to one year imprisonment with an order for release after three months and a good behaviour bond to achieve parity with his father’s sentence of four years imprisonment with a recommendation for parole after one year three months. S Bell was re-sentenced on appeal to two years imprisonment with an order for release after nine months and a good behaviour bond.
[5][1995] QCA 40.
The case does not support the applicant’s parity argument because the facts are so different. It also provides no support for the applicant’s contention that his sentence is manifestly excessive. The Bells’ offence was less serious, partly because the quantity of cannabis to be imported was agreed to be about 100 kilograms (compared to the 500 kilograms originally mooted by the applicant and his co‑offenders), but more importantly because those offenders voluntarily brought their conspiracy to an end before it was very far advanced. In the applicant’s case, a substantial quantity of cannabis (though far less than planned) had been procured in PNG for shipment to Australia and the conspiracy was brought to an end by the intervention of the authorities.
As the sentencing judge observed, the offences necessarily required sentences which were calculated to deter them and others from engaging in such conduct. His Honour took into account that there was never any real prospect of a successful importation of any of the drugs, but also observed that the offenders were not to know that. That approach was consistent with authority. In R v Lake,[6] Holmes JA said:
“Counsel for Lake and Geerlings submitted that having regard to the principles in R v Raptis, a decision of the Victorian Court of Criminal Appeal, the sentence imposed on his clients was manifestly excessive. That case deals with sentencing for conspiracy and makes these points:
Conspiracies vary widely in seriousness and in criminality. Thus a conspiracy to murder is on its face more heinous than a conspiracy to steal a loaf of bread. Nevertheless, as with any other crime, all the surrounding circumstances may and generally must be taken into account in determining the appropriate sentence. It cannot, therefore, be said that it is irrelevant to consider the likelihood of the success of a plan agreed upon by conspirators but the fact that a particular plan is unlikely to be successful will not necessarily reduce the heinousness of the scheme. A scheme is not rendered the less criminal because, for reasons which may not be known to the conspirators, it is unlikely that they will be able to carry it out to ultimate completion; or because, though resolutely pursuing it, they bungle its execution. The criminality of a particular scheme might, however, be reduced if it were shown that the conspirators were incapable of carrying out the plan upon which they had agreed, not because of supervening events, but incapable because they had, for example, neither the equipment nor the means of obtaining it, nor the intelligence to procure what was necessary to carry out the scheme.” (citations omitted)
[6](2007) 174 A Crim R 491 at 511 [73].
This offence has been regarded by the legislature as a very serious one. The maximum sentence on the first count was life imprisonment and on the second count it was 25 years imprisonment. If the conspiracy for the importation of 500 kilograms of cannabis in which the applicant participated had been apparently viable, the applicant could have expected to receive a far more severe sentence than three and a half years imprisonment. The futility of the scheme in this case was recognised by a substantial moderation in the sentence.
A number of sentencing decisions were brought to the attention of the sentencing judge, but none of them bore much factual resemblance to this very unusual case. His Honour took all of the relevant factors into account. Particularly having regard to the requirement for a sentence which would deter others from participating in similar schemes, I can see no ground for holding that the applicant’s sentence was excessive. The sentence was within the sentencing judge’s discretion.
I would refuse the application.
CHESTERMAN JA: I agree that the application should be refused for the reasons given by Fraser JA.
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