R v Os

Case [2016] QCA 278

SUPREME COURT OF QUEENSLAND

CITATION:

R v OS [2016] QCA 278

PARTIES:

R
v
OS
(applicant)

FILE NO/S:

CA No 98 of 2016
SC No 924 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


Supreme Court at Brisbane

DELIVERED ON:

1 November 2016

DELIVERED AT:

Brisbane

HEARING DATES:

8 September 2016; 16 September 2016

JUDGES:

Morrison and Philip McMurdo JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for leave to appeal is granted.

2.   The appeal is allowed only to the extent of replacing the sentence of ten years’ imprisonment with a sentence of nine years’ imprisonment, without a declaration that the applicant has been convicted of a serious violent offence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant pleaded guilty to one count of trafficking in dangerous drugs and a breach of suspended sentence was proved – where there was an extremely marked disparity in the discounts to the sentences imposed on the applicant and a related offender given in recognition of their co-operation, and undertakings to provide further co-operation, in the administration of justice – whether the applicant had a justifiable sense of grievance with the sentence imposed upon him when compared to the sentence imposed on the related offender – whether the sentencing judge failed to give adequate weight to the applicant’s undertaking to provide further co-operation in the administration of justice

Penalties and Sentences Act 1992 (Qld), s 13A, s 159A
Vicious Lawless Association Disestablishment Act 2013 (Qld), s 3, s 5, s 7, s 9

Jones v The Queen (1993) 67 ALJR 376, cited
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 Burrows[2004] QCA 306, cited
R v Floyd [2014] 1 Qd R 348; [2013] QCA 74, applied
R v Hanvey[2002] QCA 498, cited
R v Harbas [2013] QCA 159, cited
R v Kashton [2005] QCA 70, cited
R v NQ[2013] QCA 402, cited

COUNSEL:

D R Wilson for the applicant
D R Kinsella for the respondent

SOLICITORS:

Rostron Carlyle for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  I have read the reasons of Atkinson J and agree with those reasons and the orders her Honour proposes.

  2. PHILIP McMURDO JA:  I agree with Atkinson J.

  3. ATKINSON J: The applicant in this case was convicted on his own plea of guilty of one count of trafficking in dangerous drugs and a breach of suspended sentence was proved. On the count of trafficking in dangerous drugs, the applicant was ordered to be imprisoned for a period of 10 years with the time spent in pre-sentence custody declared as imprisonment already…

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Details
AGLC
R v OS [2016] QCA 278
Case
[2016] QCA 278
Decision Date

CaseChat Overview and Summary

In this case, the applicant appealed against his sentence on the basis of an extremely marked disparity in the discounts to the sentences imposed on him and a related offender. The applicant pleaded guilty to one count of trafficking in dangerous drugs and a breach of suspended sentence was proved. The applicant argued that he had a justifiable sense of grievance with the sentence imposed upon him when compared to the sentence imposed on the related offender, and that the sentencing judge failed to give adequate weight to his undertaking to provide further co-operation in the administration of justice.

The legal issues before the court were whether the applicant had a justifiable sense of grievance with the sentence imposed upon him when compared to the sentence imposed on the related offender, and whether the sentencing judge failed to give adequate weight to the applicant’s undertaking to provide further co-operation in the administration of justice. The court considered the extent and relative value of the co-operation provided by both the applicant and the related offender, as well as the relevant legislative provisions for discounts for co-operation.

The court found that while the applicant’s co-operation was useful, it was not the primary source of the information provided to the police. The related offender provided extensive and very detailed information about the operation of the drug trafficking business in which he and others were involved well before any information given to police by the applicant. The court concluded that the extremely marked disparity in discount for co-operation given to the applicant and the related offender was sufficient to give rise to an objectively justifiable sense of grievance. The discount given to the applicant for his co-operation was insufficient when it is compared to the discount given to the related offender for his co-operation. Therefore, the sentence which should have been imposed on the applicant should be reduced both to achieve parity with the sentence imposed upon the related offender and to give adequate weight to the applicant’s undertaking to provide further co-operation in the administration of justice.

Accordingly, the court allowed the appeal and replaced the sentence of ten years’ imprisonment with a sentence of nine years’ imprisonment, without a declaration that the applicant has been convicted of a serious violent offence.

Orders

Orders of the court

1. The application for leave to appeal is granted.

2. The appeal is allowed only to the extent of replacing the sentence of ten years’ imprisonment with a sentence of nine years’ imprisonment, without a declaration that the applicant has been convicted of a serious violent offence.

Background

Background to the litigation

In his written outline of submissions this ground of appeal was fleshed out by two related submissions: firstly, that the applicant has a justifiable sense of grievance with the sentence imposed upon him when compared to the sentence imposed upon an offender convicted of related offences (the ‘related offender’) and, secondly, that the learned sentencing judge failed to give adequate weight to the applicant’s undertaking to provide further co-operation in the administration of justice.Facts on which the applicant was sentenced The applicant was sentenced upon an agreed statement of facts. Those facts were derived from a police investigation targeting the activities of an organised crime network which was concerned with the supply of the dangerous drug heroin. The operation used lawfully intercepted information from six persons, including the applicant and the related offender. During the investigation it was identified that the related offender and two others (‘A’ and ‘B’) sourced commercial quantities of pure heroin on a regular basis and then mixed, cut and pressed the heroin into individual ounces and half ounces. They approached the applicant to work the streets and operate their drug phone which contained contact details of customers. The applicant was supplied up to four ounces of heroin each day. He supplied drugs between 60 and 100 times per day and at the end of each day provided the proceeds of the sales to the related offender.The sale of heroin Initially, the applicant was approached by B and offered a job selling heroin for him and A. The applicant was paid $500 by the related offender to drive around with other street dealers in order to become familiar with the location of the sales and the faces of the customers. Soon after, the applicant worked weekends with another man and soon he had complete control of A and B’s drug phone seven days a week. The related offender imposed rules concerning what time of day their phone could be used, whom the applicant could deal with, where he was to meet people, how many people he was to meet in each place, the quantity of drugs which could be sold and to whom he could give credit. The related offender provided the applicant with anywhere from two to four ounces of pre-packaged heroin per day. It was packaged into various sizes which sold from $500 down to $100 for a quarter of a gram. If the applicant was busy and thought he was going to run out of heroin he called the related offender and arranged to meet him to obtain more. The applicant used the phone between 9.00 am and 5.00 pm and supplied dangerous drugs up to 100 times each day during this period. At the end of each day, he was required to provide the related offender with $17,500 to $21,000 from the sales. A couple of hours later the related offender sent the applicant a text message setting out the total amount of money received from the applicant and whether or not he was short. At that time the applicant was making between $1,000 and $1,500 a day.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In closed court the learned sentencing judge said that, but for his co-operation pursuant to s 13A of the PSA, the sentence she would have given in relation to the trafficking was 16 years’ imprisonment. She reached that calculation by giving him credit for his co-operation in speaking to the police about his own offending and all the other factors in mitigation. On the basis of his future co-operation she reduced the sentence of 16 years on counts 1 and 2 down to the head sentence which she had imposed, warning him that if he did not co-operate in the future then the sentence which would be imposed would be 16 years imprisonment. In addition, there would have been effectively another 25 years cumulative upon that sentence because of the provisions of the Vicious Lawless Association Disestablishment Act 2013, which had been reduced to one year.Conclusion When more than one co-offender has given s 13A co-operation it is necessary to consider the extent and relative value of that co-operation. As McMurdo P held of co-offenders of whom each had given s 13A co-operation in R v NQ:[21]“There were important distinctions to be made between the present applicant and the female co-offender. He carried out an extended violent attack upon the deceased with a baseball bat. Of even more significance, the female co-offender’s cooperation with the authorities was much earlier, much more extensive and much more productive than his. These considerations provided very sound reasons for sentencing the female co-offender to a noticeably lesser sentence.”[21][2013] QCA 402 at [13]. The related offender participated in an interview with police and gave extensive and very detailed information about the operation of the drug trafficking business in which he and others were involved well before any information given to police by the applicant. The applicant’s information was useful in that it complemented the information given by the related offender but it was not the primary source of that information. The related offender’s offending occurred over a longer period but, when the related offender ceased trafficking in drugs for a period, the applicant continued with his business, changing suppliers. The related offender was, however, superior in the hierarchy of the business to the applicant. In all of the circumstances it could not be considered that the applicant’s co-operation was of nearly the same value as the related offender’s or merited nearly the same discount on sentence. However, the extremely marked disparity in discount for co-operation given to the applicant and the related offender is sufficient to give rise to an objectively justifiable sense of grievance. It would appear that the discount given to the applicant for his co-operation was insufficient when it is compared to the discount given to the related offender for his co-operation. The sentence which should have been imposed on the applicant should be reduced both to achieve parity with the sentence imposed upon the related offender and to give adequate weight to the applicant’s undertaking to provide further co-operation in the administration of justice.

Ratio Decidendi

Legal Principle Established

The respondent submitted that based upon that, the disparity was illusory and only arose due to the legislative procedure and the lack of transparency of the s 13A considerations. The justification for the disparate sentences only arose from an assessment of the nature and degree of future co-operation and that was quite different in each case. It was submitted that parity had to be considered before the benefit given to the co-offender under s 13A was taken into account: see R v Hanvey.[4] However, it was subsequently conceded that the parity principle may apply where both offenders have given s 13A co-operation.[4][2002] QCA 498.Consideration The legislative regime which is relevant to the question of a discount given for co-operation of an offender who undertakes to give valuable information to law enforcement agencies about other offenders is found in s 13A of the PSA which relevantly provides:“(1)This section applies for a sentence that is to be reduced by the sentencing court because the offender has undertaken to cooperate with law enforcement agencies in a proceeding about an offence, including a confiscation proceeding.(2)Before the sentencing proceeding starts, a party to the proceeding—(a)must advise the relevant officer—(i) that the offender has undertaken to cooperate with law enforcement agencies; and(ii) that written or oral submissions or evidence will be made or brought before the court relevant on that account to the reduction of sentence; and(b)may give to the relevant officer copies of any proposed written submissions mentioned in paragraph (a)(ii).(3)After the offender is invited to address the court—(a)the offender’s written undertaking to cooperate with law enforcement agencies must be handed up to the court; and(b)any party may hand up to the court written submissions relevant to the reduction of sentence.(4)The undertaking must be in an unsealed envelope addressed to the sentencing judge or magistrate.(5)If oral submissions are to be made to, or evidence is to be brought before, the court relevant to the reduction of sentence, the court must be closed for that purpose.(6)The penalty imposed on the offender must be stated in open court.(7)After the imposition of the penalty, the sentencing judge or magistrate must—(a)close the court; and(b)state in closed court—(i) that the sentence is being reduced under this section; and(ii) the sentence it would otherwise have imposed; and(c)cause the following to be sealed and placed on the court file with an order that it may be opened only by an order of the court, including on an application to reopen the sentencing proceedings under section 188(2)—(i) the written undertaking;(ii) a record of evidence or submissions made relevant to the reduction of sentence and the sentencing remarks made under paragraph (b).” Section 13A also applies in certain circumstances where an offender is charged under the Vicious Lawless Association Disestablishment Act. Section 7 of the Vicious Lawless Association Disestablishment Act provides that a court sentencing a “vicious lawless associate”[5] for a declared offence must impose, in addition to the ordinary sentence that would have been imposed in the absence of the Vicious Lawless Association Disestablishment Act (called the “base sentence”[6]), a further sentence of 15 years’ imprisonment.[7] Moreover, if the “vicious lawless associate” was, at the time of the commission of the offence, or during the course of the commission of the offence, an office bearer of the relevant association, another further sentence of 10 years’ imprisonment must be imposed.[8] The further sentences must be ordered to be served cumulatively upon the base sentence and upon each other[9] and they must be served wholly in a corrective services facility.[10] Importantly, the base sentence must be formulated “without regard to any further punishment that may or will be imposed under [the] Act”.[11] Moreover, s 7(2)(a) provides that neither type of “further sentence” imposed may be “mitigated or reduced under any other Act or law.”[5]Defined in s 5 as a person who at the time or during the course of the commission of a “declared offence” was a participant in the affairs of an association and they did the act that constitutes the declared offence for the purposes of, or in the course of participating in the affairs of, the relevant association. Trafficking in dangerous drugs, contrary to s 5 of the Drugs Misuse Act 1986 (Qld), is a declared offence: see s 3 and schedule 1 of the Vicious Lawless Association Disestablishment Act.[6]See language used in s 7(2)(b), s 7(3) and s 7(4).[7]s 7(1)(b).[8]s 7(1)(c).[9]s 7(1)(c), s 7(2)(b).[10]s 7(1)(b), s 7(1)(c).[11]s 7(1)(a).