R v Rogers

[1995] QCA 490

IN THE COURT OF APPEAL	[1995] QCA 490
SUPREME COURT OF QUEENSLAND	C.A. No. 373 of 1995
Brisbane
BeforeFitzgerald P. McPherson J.A. Lee J.
[R. v. Rogers]

T H E Q U E E N

v.

BARRY ROGERS	(Applicant)
Fitzgerald P. McPherson J.A. Lee J.

Judgment delivered 07/11/95

Joint reasons for judgment by McPherson J.A. and Lee J. Separate concurring reasons by Fitzgerald P.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DISMISSED.

CATCHWORDS	CRIMINAL LAW - SENTENCE - Production and supply of cannabis - Whether there was parity in sentences of co-accused - Whether sufficient recognition was given when sentencing to the co-operation of the accused.
Counsel:	Applicant in person M. Byrne Q.C. for the respondent
Solicitors:	Director of Public Prosecutions for the respondent
Hearing Date:	26 October 1995

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 07/11/1995

The circumstances giving rise to this application for leave to appeal are set out in the reasons for judgment of McPherson J.A. and Lee J. I agree with their Honours’ conclusion and, subject to what follows, with their reasons.

Justice, logic and authority (Lowe v. R. (1984) 154 C.L.R. 606) dictate that there should be an appropriate relationship upon the sentences imposed on co-offenders. However, there are many circumstances which can affect the sentence imposed on an offender, and produce different sentences for co-offenders. Further, for a variety of reasons, co-offenders can be sentenced at different times by different judges and on different information. In my opinion, all these factors are appropriately taken into account in determining whether the disparity between sentences imposed on co-offenders is so great as to lead to, or assist in, a conclusion that the heavier sentence is manifestly excessive and/or that there is, or might legitimately be, an appearance of injustice.

I consider it important to emphasise that sentences imposed on co-offenders are only factors to be taken into consideration, not determinative, of the proper sentence of the offender being sentenced, because it is clear that any less flexible approach could lead to injustice, and indeed how a less flexible approach could be manipulated and abused. Especially, perhaps, in the case of organised drug producers and suppliers, there is reason to suspect that attempts are sometimes made to orchestrate the order in which co-offenders are dealt with, and which plead guilty and which go to trial, and that even the information available expands or otherwise alters after some have been sentenced. I do not consider that the desirability of proportionality in sentencing co- offenders requires the criminal justice system simply to yield to such tactics.

In the present matter, I am not persuaded that the effective sentence imposed on the applicant was manifestly excessive or that there is such an appearance of injustice that this Court should interfere, even when regard is had to the sentences imposed on the applicant’s co-offenders and the cooperation which the applicant provided to law enforcement authorities, which I am prepared to assume included information implicating other persons. It remains only to add that the sentencing judge did not accept the applicant’s excuses of intimidation, compulsion, duress, etc., and, having regard to the manner in which the sentencing before him was conducted, I see no reason for this Court to adopt a different view.

The application should be refused.

JOINT REASONS FOR JUDGMENT - McPHERSON J.A. & LEE J.

Judgment delivered the 7th day of November 1995

This is an application for leave to appeal against a sentence of imprisonment for 5 years imposed in the Supreme Court on 28 July 1995. The offences charged were: (1) production of cannabis between January and May 1993, with the circumstance of aggravation that the quantity exceeded the Third Schedule specification; (2) supply of cannabis over the same period, with a similar circumstance of aggravation; (3) a similar offence of supplying, again with that circumstance, but committed between May and June 1993; (4) possession of methylamphetamine during that period; and (5) supply of cannabis between June 1993 and July 1995, again with the same circumstance of aggravation as before.

The applicant pleaded guilty to all of these charges.
For some time before 28 May 1993 the Criminal Justice Commission was

keeping watch on a cannabis plantation near Gin Gin on a property owned by Wayne Hatch. On 28 May 1993 police entered the property and found five persons there. They were Wayne Hatch, Victor Graveson and Gregory Minehan, and two women Angela Stephens and Samantha McLennan. They found a sophisticated operation being conducted for the growing, harvesting and processing of cannabis. Taken with some further material found at Capalaba, the police located altogether 200 kgs of cannabis leaf, 7000 growing plants, and 3 or more kilograms of seed. On one estimate the crop was worth up to $20,000,000 or more. The five persons were arrested and charged, but were later released on bail.

It was not until about 12 months later that the appellant was located and interviewed in connection with the plantation. He co-operated, and gave to the Commission a lengthy and detailed account of his activities. From this, from a statement given to police (which was in evidence at the hearing), and from prosecuting counsel's uncontradicted remarks at the hearing, it appears that the applicant assisted as a labourer with cultivation and production at the Gin Gin property for some 4 months from January to May 1993 (count 1). He was paid about $5000 during that period. It is not clear whether or not he was going to receive any more, and, if so, how much more, for his part in the matter.

Count 2 in the indictment against the applicant related to an occasion when Graveson, or "Vic" as he was known, instructed the applicant to fly to Melbourne to assist with distribution of cannabis to bikie gangs, including the Iron Horsemen, who were among Vic's customers. The applicant, who originated in Victoria, was taken along to assist in finding other potential buyers. About 30 lbs of cannabis was taken to Melbourne by others, and the applicant himself disposed of a few pounds of it.

Count 3 charged an occasion when the applicant accompanied Vic to a farm near Bundaberg to pick up 40 lbs of cannabis for transmission to Brisbane. He and Vic travelled back to Brisbane with it. He said he and Vic drove to the farm towing a boat on a trailer in which the cannabis was later hidden for the return journey. The applicant, who did not go all the way to the farm with Vic, acted as co-driver, and was paid $200 for his part. Count 4 concerned possession of amphetamines, to which Vic had an addiction, and which the applicant carried for him. Count 5 related to another occasion on which the applicant went to a farm at Bundaberg to collect 30 lbs of cannabis and bring it back to Brisbane.

It was acknowledged that Vic Graveson was the "mastermind" behind these activities. He apparently conducted other illegal businesses including a prostitution business. The applicant, who is 37 years old, had known him as a trawlerman, and said he came to Queensland from Victoria in the hope of obtaining work on one of Vic's trawlers. He did not realise he would be employed in cannabis cultivation, but he knew in advance that Vic was involved in drug dealing in Victoria. Before us, the applicant claimed to have been forced to work on the plantation at Gin Gin by fear of Vic, and that he was kept there as a virtual prisoner. It is right to say that, at the hearing, prosecuting counsel recounted the applicant's assertions to this effect, adding that the applicant had said Vic had "pulled a gun on him on four occasions".

Evidently Vic Graveson successfully decamped without being sentenced. As to the others, Hatch pleaded guilty and was sentenced by Dowsett J. to imprisonment for 7 years for five drug related offences. He was, nominally at least, the owner of the property at Gin Gin and was viewed as being in effect the manager of the plantation. In addition he was found to have participated actively in the distribution of the drug. He was also given cumulative sentences of 1 year each for two further counts, one of perjury and another of being accessory after the fact to murder. The resulting aggregate sentence of imprisonment for 9 years was accompanied by a recommendation for parole after 4 years in recognition of Hatch's pleas of guilty, assistance to the police, and previous crime-free record.

Hatch received the heaviest sentence of the five persons charged with the cannabis production. The applicant, who was dealt with last, received the next heaviest with 5 years. Then came Minehan, who was sentenced to 4 years by Williams J. Angela Stephens received 3 years with a recommendation for parole after 9 months. She acted under coercion from Vic, who was her husband and had treated her with violence. She had no previous convictions. Samantha McLennan was sentenced to 18 months imprisonment, which was suspended for 2 years. She had arrived at the property as a visitor only a few days before the police raid, although on the day of the raid she was actively involved in harvesting.

A sentence of 5 years imprisonment is within the range for participation in drug production and related offences of the kind with which the applicant was charged, particularly in view of the scale and sophistication of the cultivation operation. The applicant, who conducted his application before us in person, and did so with a degree of fluency and persuasiveness, complained principally of the disparity between his sentence of 5 years and that of 4 years imposed on Minehan. Minehan participated as a labourer almost daily in the cultivation for a period of 8 months, which was twice as long as the applicant did. In sentencing him, Williams J. said that Minehan gained commercially from his participation, and stood to gain more if the police had not arrived when they did. He had not, however, taken part in distribution activities like those committed by the applicant (counts 2 to 5), which involved circumstances of aggravation. Williams J. also remarked that Minehan had a criminal history, which his Honour described as "not all that bad". His Honour sentenced him at what he said was the lower end of the range of 4 to 6 years. He, too, pleaded guilty, but gave no statement to the police or the Commission.

There were therefore some obvious differences, some favourable and some unfavourable between the extent of Minehan's criminality and that of the applicant. In addition, the applicant has a 1989 conviction for burglary, and two previous drug offences, one of possession in 1979 and another in 1987, committed in conjunction with unlawful possession of a pistol, for which he received sentences of imprisonment of 4 months and 1 month respectively. There is a reference in the remarks of counsel for the applicant in the proceedings below to the applicant's having been convicted of trafficking involving two $25 sticks of marihuana, which is assumed to be the 1987 offence already referred to.

It is evident from the sentencing proceedings and remarks in the case of the applicant, that the learned sentencing judge was fully aware of the need to maintain parity with Minehan's sentence. He specifically referred to the applicant's co- operation with the authorities, and the recognition that was due in respect of it. The applicant was under the witness protection scheme for a considerable period of time, and was interviewed at length on several occasions. Unlike Minehan he made a frank confession, on which the charges against him were based. On the other hand, it is not clear that in what he said to the Commission, he had implicated anyone else. His Honour decided that, in the absence of supporting evidence or corroborating circumstances, he was not prepared to deal with the applicant on the basis of his having acted under some form of compulsion or duress, which he described as "inherently improbable". His Honour was, on the material placed before him, entitled to be sceptical about that claim.

On one view of it, it nevertheless remains possible to argue that there is a disparity between the sentences imposed on Minehan and the applicant. It is, however, subject to a further consideration which his Honour expressly allowed for in arriving at the 5 year term of imprisonment imposed. It was that both Hatch and the applicant were also sentenced for an offence of being accessory after the fact to the murder of another worker named Lohman at the Gin Gin property. He was killed by Minehan allegedly because he had raped Minehan's wife. For this, Dowsett J. sentenced each of them to imprisonment for 1 year as accessory after the fact. His Honour considered the applicant's involvement to have been minimal, consisting primarily of locating Lohman's clothes and disposing of them after his death. Concealment was necessary because the killing had the potential to jeopardise the security or secrecy of the cultivation enterprise. In the result, in sentencing the applicant on the drug offences now before us, the learned sentencing judge in this instance decided not to make the sentence he imposed for those offences cumulative on the 1 year sentence imposed by Dowsett J. for that other offence. In doing so, his Honour said that appropriate recognition would be given to the factors distinguishing the applicant's case from that of Minehan by making an order for imprisonment which would operate concurrently with his existing sentence for being accessory after the fact to murder.

It was on this basis that the 5 year sentence was arrived at. Viewed in that way it does not compare unfavourably with the 4 year sentence imposed on Minehan, who presumably faces a much longer cumulative sentence for the killing.

When all these matters are brought to account, it is not possible to conclude that the sentencing discretion miscarried. The sentence of imprisonment for 5 years was within the range, and appropriate to all the circumstances including the applicant's past history; the extent of his participation in the venture; and his admission of his part in the venture.

The application for leave to appeal should be dismissed.