Supreme Court at Townsville – Date of Conviction & Sentence: 21 October 2016 (Holmes CJ)
DELIVERED ON:
8 June 2018
DELIVERED AT:
Brisbane
HEARING DATE:
27 October 2017
JUDGES:
Fraser and Gotterson and Morrison JJA
ORDERS:
1. The appeal against conviction is dismissed.
2. The application for leave to appeal against sentence is refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant/applicant was convicted after a two day trial of one count of trafficking in a dangerous drug, one count of possessing a dangerous drug exceeding 200 grams (methylamphetamine) and one count of supplying a dangerous drug (methylamphetamine) – where three separate transactions were relied upon by the Crown to form the count of trafficking – where one of those transactions involved a witness who picked up a package but did not look at the contents of that package – where the Crown submitted below that there was strong evidence to suggest that what was inside that package was an illegal substance and in particular, the dangerous drug methylamphetamine – whether the evidence adduced in relation to this transaction was insufficient to prove that it involved a dangerous drug
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the trafficking offence was a serious one encompassing three to four months in which there were three incidents when substantial quantities of methylamphetamine were supplied – where the appellant/applicant was sentenced to nine years imprisonment for that offence – where counsel for the appellant/applicant submitted on appeal that (i) parity considerations meant that nine years was excessive; (ii) the learned sentencing judge gave no indication of her intention to set a parole eligibility date beyond 50 per cent of the head sentence and (iii) inadequate reasons were given for the setting of that parole eligibility date – whether the appellant/applicant was denied procedural fairness and the sentencing discretion miscarried
A Vasta QC for the appellant/applicant D Meredith for the respondent
SOLICITORS:
Malouf Criminal Lawyers for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent
FRASER JA: I agree with the reasons for judgment of Morrison JA and the orders proposed by his Honour.
GOTTERSON JA: I agree with the orders proposed by Morrison JA and with the reasons given by his Honour.
MORRISON JA: On…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Olssen [2018] QCA 114
Case
[2018] QCA 114
Decision Date
CaseChat Overview and Summary
The appellant in R v Olssen appealed against his conviction and sentence, which arose from charges of trafficking in a dangerous drug, possessing a dangerous drug exceeding 200 grams (methylamphetamine), and supplying a dangerous drug (methylamphetamine). The trial court had sentenced the appellant to nine years imprisonment for the trafficking offence. The appeal against conviction centred on whether the evidence regarding one of the transactions was insufficient to prove that it involved the dangerous drug methylamphetamine. The appeal against sentence argued that the nine-year sentence was excessive, particularly in light of parity considerations with co-offenders and the imposition of a parole eligibility date beyond 50 per cent of the head sentence.
The court found the appeal against conviction to be without merit. It concluded that the evidence was sufficient to establish that the transaction involved the dangerous drug methylamphetamine. Regarding the appeal against sentence, the court held that the learned sentencing judge had adequately considered the relevant factors, including parity with co-offenders and the potential impact of a serious violent offence declaration. The court determined that the appellant was not denied procedural fairness and that the sentencing discretion had not miscarried. Therefore, the appeal against conviction was dismissed, and the application for leave to appeal against the sentence was refused.
The final orders of the court were that the appeal against conviction be dismissed and the application for leave to appeal against the sentence be refused.
Orders
Orders of the court
1. The appeal against conviction is dismissed.
2. The application for leave to appeal against sentence is refused.
Background
Background to the litigation
The appellant appeals against this conviction, and seeks leave to appeal against this sentence. The appeal against conviction is on the ground that the evidence adduced in relation to the first of three transactions relied upon by the Crown in respect of count 1 was insufficient to prove that it involved the dangerous drug methylamphetamine. The ground advanced in respect of the application for leave to appeal against the sentence is that there were three specific errors relating to parity and the imposition of a parole eligibility date beyond 50 per cent of the head sentence.Facts in relation to the first transaction in count 1 Some formal admissions were made[1] in relation to the first transaction. They were that:(a)on 12 July 2011 a passenger by the name of Stewart Grainger was scheduled to travel by plane from Townsville to Brisbane, leaving at 8.35 am and arriving at 10.20 am;(b)on 12 July a passenger by the name of Stewart Grainger travelled from Brisbane to Townsville by bus, departing at 2.00 pm and arriving on 13 July 2011 at 1.35 pm; a ticket for the journey was purchased by Grainger at Roma Street Station; and(c)on 14 July 2011 a money order in the sum of $2,500 was purchased in the name of Stewart Grainger; the money order was made payable to “Matt Olsen” and payable at “Australia Fair”.[1]Appeal Book (AB) 167.Evidence of Grainger Grainger gave evidence that he knew a person by the name of Peter Heilbronn, who was the owner of a business in Townsville. He took a trip on behalf of Heilbronn in July 2011 to Brisbane. There he met a man called “Matt Olssen”, the appellant. He had previously met the appellant at a nightclub in Townsville.[2][2]AB 62. When asked to recall the conversation with Heilbronn it was in these terms:“Now, the trip that we’re talking about, how did that trip come about; how did you come to go on that trip? --- Peter Heilbronn asked me if I wanted to do a trip to Brisbane.Okay. Now, did he tell you why you were going to Brisbane?---Yes.And what did he say to you about why you were going?---It was to pick up drugs.Okay. Did you ask him what drugs it was?---Yes.And did he give you a response?---Yes.And what was his response?---He said it was something to do with my habit, because I had an amphetamine habit at the time.Okay. So he said it was something to do with your habit ---Yep.And at the time you were using amphetamines heavily?---Yes.Okay. And how long had you been using amphetamines heavily for?---Six months or a year.”[3][3]AB 63 ll 1-21. Grainger gave evidence that he flew down, taking $10,000 in cash which had been given to him by Heilbronn. Heilbronn told Grainger that he was to give the $10,000 to the appellant. The $10,000 was provided to him “wrapped up as a present”. Grainger said that he went to the mall in Brisbane, as directed by Heilbronn, and to Hungry Jacks to meet the appellant. His account of what then happened was in these terms:“And where in Hungry Jacks did you meet Matt Olssen?---Upstairs.Okay. Now, when you were with Matt Olssen in Hungry Jacks, did you speak to anybody else?---I spoke to Peter Heilbronn on the phone.Okay, on the phone. And whose phone was that, do you remember?---Matt Olssen’s, I think.Did you give Matt Olssen anything in Hungry Jacks?---Yes, $10,000.Okay. And, again, was that upstairs?---Yes.Any particular place upstairs?---In the bathroom.Now, after that, or after you gave him the money, what did you then do?---We then went into a car park.And where was the car park?---It was attached to one of the shopping centres in the Brisbane mall.Okay. Was it a multi-level car park?---Yes.Okay. Did you go on a particular level, if you can recall?---I don’t recall, sorry.Now, in the car park, what transpired between you and Mr Olssen?---Mr Olssen gave me a massage-type sports machine and I stuck it in my bag.Okay. Were you carrying a bag?---Yes.And what type of bag was it?---A large travel bag.And if we can talk about the massage machine, are you able to describe it for the members of the jury?---It was some kind of a sporting machine or massage machine, it was about a foot wide by about a foot high.”[4][4]AB 64 l 17 to AB 65 l 12.
Evidence
Evidence Before The Court
Some formal admissions were made[1] in relation to the first transaction. They were that:(a)on 12 July 2011 a passenger by the name of Stewart Grainger was scheduled to travel by plane from Townsville to Brisbane, leaving at 8.35 am and arriving at 10.20 am;(b)on 12 July a passenger by the name of Stewart Grainger travelled from Brisbane to Townsville by bus, departing at 2.00 pm and arriving on 13 July 2011 at 1.35 pm; a ticket for the journey was purchased by Grainger at Roma Street Station; and(c)on 14 July 2011 a money order in the sum of $2,500 was purchased in the name of Stewart Grainger; the money order was made payable to “Matt Olsen” and payable at “Australia Fair”.[1]Appeal Book (AB) 167.Evidence of Grainger Grainger gave evidence that he knew a person by the name of Peter Heilbronn, who was the owner of a business in Townsville. He took a trip on behalf of Heilbronn in July 2011 to Brisbane. There he met a man called “Matt Olssen”, the appellant. He had previously met the appellant at a nightclub in Townsville.[2][2]AB 62. When asked to recall the conversation with Heilbronn it was in these terms:“Now, the trip that we’re talking about, how did that trip come about; how did you come to go on that trip? --- Peter Heilbronn asked me if I wanted to do a trip to Brisbane.Okay. Now, did he tell you why you were going to Brisbane?---Yes.And what did he say to you about why you were going?---It was to pick up drugs.Okay. Did you ask him what drugs it was?---Yes.And did he give you a response?---Yes.And what was his response?---He said it was something to do with my habit, because I had an amphetamine habit at the time.Okay. So he said it was something to do with your habit ---Yep.And at the time you were using amphetamines heavily?---Yes.Okay. And how long had you been using amphetamines heavily for?---Six months or a year.”[3][3]AB 63 ll 1-21. Grainger gave evidence that he flew down, taking $10,000 in cash which had been given to him by Heilbronn. Heilbronn told Grainger that he was to give the $10,000 to the appellant. The $10,000 was provided to him “wrapped up as a present”. Grainger said that he went to the mall in Brisbane, as directed by Heilbronn, and to Hungry Jacks to meet the appellant. His account of what then happened was in these terms:“And where in Hungry Jacks did you meet Matt Olssen?---Upstairs.Okay. Now, when you were with Matt Olssen in Hungry Jacks, did you speak to anybody else?---I spoke to Peter Heilbronn on the phone.Okay, on the phone. And whose phone was that, do you remember?---Matt Olssen’s, I think.Did you give Matt Olssen anything in Hungry Jacks?---Yes, $10,000.Okay. And, again, was that upstairs?---Yes.Any particular place upstairs?---In the bathroom.Now, after that, or after you gave him the money, what did you then do?---We then went into a car park.And where was the car park?---It was attached to one of the shopping centres in the Brisbane mall.Okay. Was it a multi-level car park?---Yes.Okay. Did you go on a particular level, if you can recall?---I don’t recall, sorry.Now, in the car park, what transpired between you and Mr Olssen?---Mr Olssen gave me a massage-type sports machine and I stuck it in my bag.Okay. Were you carrying a bag?---Yes.And what type of bag was it?---A large travel bag.And if we can talk about the massage machine, are you able to describe it for the members of the jury?---It was some kind of a sporting machine or massage machine, it was about a foot wide by about a foot high.”[4][4]AB 64 l 17 to AB 65 l 12.
Decision
Reasons for decision
In my view, this ground lacks merit.Conclusion on appeal against conviction The appeal against conviction should be dismissed.Application for leave to appeal against the sentence The three issues on the application for leave to appeal against sentence were: (i) that parity considerations meant that nine years was excessive; (ii) that the learned sentencing judge gave no indication of her intention to set a parole eligibility date beyond 50 per cent of the head sentence of nine years, and (iii) inadequate reasons were given for setting the parole eligibility date.Submissions Mr Vasta QC submitted that at no stage did the learned sentencing judge foreshadow that the parole eligibility date might be set higher than the halfway mark. Nor, it was said, was the possibility of a serious violent offence declaration (SVO) part of the consideration. The consequence was that the appellant was denied procedural fairness and the sentencing discretion miscarried. Further, it was submitted that the learned sentencing judge did not give any reasons for the imposition of a parole eligibility date beyond the halfway point. For the Crown, Mr Meredith submitted that for a serious trafficking offence, concerning methylamphetamine as the jury evidently accepted, a sentence above 10 years was always possible and therefore the possibility and impact of an SVO would have always been part of defence counsel’s consideration. Given that the appellant went to trial and the 10 year sentence on the co-offender, Safi, was the result of a plea of guilty, two things followed: (i) parity considerations were heavily influenced by the fact that Safi’s sentence was the product of his plea, meaning that it would not automatically follow that the appellant would get less than 10 years, and (ii) if parity considerations meant that the appellant’s head sentence was reduced below the 10 years or more that otherwise would have been imposed, therefore giving him the benefit of not serving 80 per cent under an SVO, the way in which the seriousness of the offending could be balanced against the appellant’s cooperation with the administration of justice (principally by the extensive admissions that reduced the time of the trial) was by treating the benefit as coming off the head sentence and increasing the parole eligibility date beyond 50 per cent. The exchanges between the learned sentencing judge and defence counsel showed that defence counsel recognised that.Discussion The trafficking offence was a serious one. It encompassed a period of three to four months in which there were three incidents when substantial quantities of methylamphetamine were supplied. The Alexander transaction was four pounds, a total of 1.8kg with 318.4 grams pure. The purity was above street level deals, and the street level sales from it on a point basis could have totalled $900,000. If sold by the ounce it would attract about $540,000. The learned sentencing judge held that the appellant was a wholesaler, and therefore supplies wholesale would have attracted a value of between $240,000 and $280,000.
Ratio Decidendi
Legal Principle Established
Then followed this exchange with the learned sentencing judge:[49]“JUDGE: You can’t just say he should be less than Safi and stop at that, because you’ve also got the counterbalancing factor that Safi’s a plea. So you can’t say less than 10 just on the basis of that.COUNSEL: I’m just saying on the parity aspect. Even taking into account the plea of guilty, your Honour, so far as Safi is concerned you have the very aggravating features of committing - - -JUDGE: I understand what you say about Safi being more serious.COUNSEL: Yes. JUDGE: But if what you’re saying to me is Safi gets 10, it follows your client gets less, that won’t work.COUNSEL: No. No. Even taking into account the factors that could be taken into account on Safi’s favour, the offending – even considering that – placed Safi’s case in a far more serious category than the offending, including the fact that he went to trial, of Mr Olssen, your Honour. I’m submitting that … Mr Olssen’s case … even taking into account the plea of not guilty – rests somewhere between eight and nine years, but I would also ask your Honour to take into account the cooperation with the administration of justice and the delay aspect of it in either reducing the head sentence or recommending an earlier parole.JUDGE: Earlier than what?COUNSEL: Well, … if your Honour concludes nine years was appropriate – your Honour can take it into account in one of two ways, obviously, and either taking it off the head sentence or further ameliorating it so far as a recommendation for parole, but I don’t think I can take that any further.”[49]AB 160 ll 12-41; emphasis added. There are a number of matters that emerge from that exchange and the learned sentencing judge’s comment referred to in paragraph [77] above. First, the learned sentencing judge plainly indicated that parity considerations were heavily influenced by the fact that the sentence in Safi was the product of a plea of guilty. The sentence of 10 years in Safi’s case would have been higher had it been imposed after a trial. The sort of discount often granted for a timely plea of guilty might suggest that a sentence as high as 12 or 13 years was possible. That was the implication behind the learned sentencing judge’s comment that just because Safi had a sentence of 10 years it did not follow that the appellant would get less. Secondly, that being the case, it would have been clear to defence counsel that there was still a possibility of a sentence of 10 years, thus attracting an SVO. Carried with that was the prospect of the appellant being required to serve more than 50 per cent of the head sentence. Thirdly, as defence counsel recognised, one option to achieve the appropriate balance from a parity point of view was to reduce the head sentence instead of an earlier parole date. In my view, it was clear that if that option was followed, the consequence might well be that the head sentence was reduced from what it would have been, solely for consideration of parity considerations, but if no change was made to the original 50 per cent halfway point for parole eligibility, the period to be served as a proportion of the total would increase beyond 50 per cent.