R v Prendergast - [2012] QCA 164

[2012] QCA 164

COURT OF APPEAL

de JERSEY CJ
MUIR JA
FRASER JA

CA No 1 of 2012
SC No 92 of 2010
SC No 114 of 2011

THE QUEEN

PRENDERGAST, Shannon Peter Applicant

BRISBANE

DATE 18/06/2012

JUDGMENT

THE CHIEF JUSTICE: The applicant pleaded guilty to carrying on the business of unlawfully trafficking in methylamphetamine and MDMA over a two year period from May 2006. He also pleaded guilty to a number of counts of supply, mostly during the trafficking period, and other related counts.

He was sentenced to eight years' imprisonment for the trafficking with parole eligibility intended after one-third of that term; that is, at the two year, eight month point. I say "intended" because of what the sentencing Judge said. Her Honour, in fact, specified the date as the 14th of August 2015, which was one year later. There will need to be amendment of the sentence so that it records a parole eligibility date of the 14th of August 2014.

The eight year term was imposed for the trafficking in the context of the prosecutor’s having contended for a range of seven to eight years with parole set at one-third. Defence counsel had contended for a range of five to seven years. The applicant seeks leave to appeal against the sentence on the ground that the eight year term is manifestly excessive.

When he committed these offences, the applicant was aged between 31 and 33 years. His prior criminal history was not material to the sentencing. He had a good employment history, and is the father of two children who live with their mother, from whom he is estranged.

The trafficking operation was of some sophistication. The applicant used seven couriers to transport the drugs between cities within Australia on at least 43 occasions by air. Substantial sums of money were involved. One courier estimated having collected between $20,000 and $30,000 for the applicant over a two month period.

Large amounts were deposited into the applicant's bank account and his TAB account. They were withdrawn at different locations soon after they were deposited. Over three months, from January, 2008, $61,980 was deposited into the applicant's bank account. So-called "tick lists" disclosed 18 regular customers who were provided with drugs on credit in amounts of up to five grams.

They owed substantial sums to the applicant, ranging up to $14,200. The learned Judge held that $111,225 was the minimum amount of unsourced income derived by the applicant during the trafficking period.

It is necessary to traverse some of the history of the proceeding. On the 31st of August 2006, four months into the trafficking period, police officers executed a search warrant at the applicant's house. They found drugs, scales and pipes.

The applicant was that day charged with those offences which have found their way in to the subject indictment as Counts 4, 5 and 6. The applicant was also charged with a fourth offence.

He pleaded guilty to what became Counts 4, 5 and 6,…

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.

Continue reading R v Prendergast

Details

AGLC: R v Prendergast [2012] QCA 164
Case: [2012] QCA 164
Decision Date: 18/06/2012

CaseChat Overview and Summary

In the matter of the Queen versus Prendergast, the applicant appealed against his sentence for carrying on the business of unlawfully trafficking in methylamphetamine and MDMA, along with related charges. The applicant had pleaded guilty to the charges, and the trial judge had sentenced him to eight years' imprisonment with parole eligibility after one-third of that term, intended to be 14 August 2014. The applicant argued that the sentence was manifestly excessive.

The legal issues before the court were whether the learned judge had erred in attributing insufficient weight to the applicant's absence of re-offending for three years after being granted bail on the trafficking charge, in considering the trafficking as sufficiently serious to warrant sentencing at the top of the range put forward by the prosecution, and in finding that the amount of unsourced income was at least $111,225.

The Court of Appeal found that the learned judge's observations were open and apposite. The absence of re-offending did not mandate a sentence lower in the range, and the seriousness of the trafficking, along with the commerciality and sophistication of the operation, justified her Honour regarding the offending as very serious. The judge properly regarded the amount of unsourced income as significant, and the sentence of eight years imposed in this case, with parole eligibility after one-third, sat comfortably with previous cases. The application for leave to appeal against sentence was refused, but the date for parole eligibility should be substituted from 14 August 2015 to 14 August 2014.

The Court of Appeal ordered that the application for leave to appeal against sentence be refused, with the amendment to the parole eligibility date as specified.

Orders