R v Saunders

Case [2016] QCA 221

SUPREME COURT OF QUEENSLAND

CITATION:

R v Saunders [2016] QCA 221

PARTIES:

R
v
SAUNDERS, Craig Stanley
(applicant)

FILE NO/S:

CA No 128 of 2016
DC No 7 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


District Court at Southport – Date of Sentence: 3 May 2016

DELIVERED ON:

6 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2016

JUDGES:

Margaret McMurdo P and Fraser JA and Daubney J
Separate reasons for judgment of each member of the Court, Fraser JA and Daubney J concurring as to the orders made, Margaret McMurdo P dissenting

ORDERS:

1.   The application is refused.

2.   A warrant be issued for the applicant’s arrest, such warrant to lie in the registry for 14 days.

3.   The parties have liberty to apply about order 2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SETENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to supplying a dangerous drug – where the drugs supplied by the applicant caused the death of a person – where the applicant supplied drugs to a third party who then gave the drugs to the deceased – where the applicant was not present when the drugs were consumed – where the applicant co-operated fully with police when interviewed – where the applicant contended there was no evidence implicating him in the offence – where the sentencing judge took into account the applicant’s co-operation, full admissions and early plea of guilty – whether the sentencing judge gave special leniency for the applicant’s high level of co-operation – whether the sentence was manifestly excessive

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
R v Coutts[2016] QCA 206, cited
R v Ellis (1986) 6 NSWLR 603, cited
R v Hauser[1999] QCA 345, cited
R v Shambayati[2016] QCA 121, cited
R v Tempelmeier (Unreported, Supreme Court of Queensland, Fryberg J, 25 March 2013), cited
R v Tout[2012] QCA 296, cited
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21, cited
The Queen v Pham (2015) 90 ALJR 13; [2015] HCA 39, cited

COUNSEL:

B H P Mumford for the applicant
J Robson for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. MARGARET McMURDO P:  The applicant, Craig Saunders, pleaded guilty to supplying a dangerous drug, heroin, on 4 March 2015.  He was sentenced to nine months imprisonment with parole release on 2 July 2016 that is, after having served two months.  He has applied for leave to appeal against his sentence contending that the sentence was manifestly excessive and that judge failed to give any or special leniency to his co-operation in the administration of justice.  The applicant was released on bail pending appeal on 10 June 2016…

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Details
AGLC
R v Saunders [2016] QCA 221
Case
[2016] QCA 221
Decision Date

CaseChat Overview and Summary

In the matter of R v Saunders, the applicant sought leave to appeal against the sentence imposed by the sentencing judge. The applicant pleaded guilty to supplying a dangerous drug, in this case, heroin, which subsequently caused the death of a person. The drugs were supplied by the applicant to a third party who then gave them to the deceased. The applicant was not present when the drugs were consumed. The applicant cooperated fully with police when interviewed and contended that there was no evidence implicating him in the offence. The sentencing judge took into account the applicant's cooperation, full admissions, and early plea of guilty.

The court had to decide whether the sentencing judge gave special leniency for the applicant's high level of cooperation, and whether the sentence was manifestly excessive. The respondent argued that the applicant's cooperation was not as significant as in other cases where the principle of special leniency was applied, and that the sentencing judge made appropriate allowance for the level of cooperation and did not err. The respondent contended that the sentence was not manifestly excessive or unreasonable, and that the application for leave to appeal should be refused.

The court found that the respondent accepted the concept of special leniency in cases where an offender confesses to an unknown crime. However, the significance of the leniency to be given would depend on the facts and circumstances of each case. The court found that the sentencing judge made appropriate allowance for the level of cooperation and did not err. The sentence was not manifestly excessive, even if a different judge may have imposed a lesser sentence. The application for leave to appeal was refused, and a warrant was issued for the applicant's arrest, to lie in the registry for 14 days. The parties have liberty to apply about the warrant.

Orders

Orders of the court

1. The application is refused.

2. A warrant be issued for the applicant’s arrest, such warrant to lie in the registry for 14 days.

3. The parties have liberty to apply about order 2.

Background

Background to the litigation

He was 54 years old at the time of the offence and 56 at sentence. He had been sentenced on seven prior occasions for offences involving possessing or producing dangerous drugs and had been placed on probation in 1991, 1993, 2012 and 2013, sometimes breaching those community-based orders. In 2003 he was placed on a wholly suspended sentence for producing dangerous drugs. He also had convictions for offences of dishonesty. He had not been sentenced to actual terms of imprisonment and, as the prosecutor at sentence pointed out, he had no previous convictions for supplying a dangerous drug.The facts of the offending The offending came to light in this way. On 4 March 2015 the body of Neil Collingburn was found in a toilet cubicle at a Gold Coast shopping centre. An ambulance was called but he was pronounced dead at 7.15 pm. A bag containing syringes, a sharps container and alcohol wipes were found next to him. A search of his mobile phone revealed that at about 5.15 pm he sent a text message to the applicant. Police later interviewed the applicant who gave a full and frank account in which he admitted that Nathan Bell contacted him, seeking heroin. The applicant initially refused but Bell persisted until the applicant relented. They met at a park behind the shopping centre; Bell was in the company of the deceased. Bell gave the applicant $120. The applicant then obtained two $60 bags of heroin and gave them to Bell. The applicant was not present when Bell and the deceased consumed the heroin.The submissions of sentence The prosecutor stated that the applicant made a frank confession and entered an early guilty plea. An autopsy report noted that there was a receipt in the deceased’s pocket for “pharmacy medication” which was purchased on the day of his death at 4.33 pm by someone resembling the deceased and another male. The autopsy found that the deceased, who suffered from hepatitis C, had died from a heroin overdose and was a long term user of heroin, with a previous admission to hospital for a drug overdose. Anti-anxiety drugs were also detected in his blood. It was a relevant sentencing factor, the prosecutor submitted, that Mr Collingburn had died as a result of the heroin supplied by the applicant. He referred to R v Hauser[1] where a sentence of 12 months concurrent imprisonment was imposed and R v Tempelmeier,[2] where a sentence of 12 months imprisonment to be served by way of an intensive correction order was imposed. The prosecutor conceded that the chain of causation in the present case made the applicant further removed from the subsequent death than the offenders in those cases.[1][1999] QCA 345.[2](Unreported, Supreme Court of Queensland, Fryberg J, 25 March 2013). Defence counsel stated that the applicant had been on a disability pension, since contracting hepatitis C some decades earlier. He began to use heroin when his brother was diagnosed with and ultimately died from cancer but he was never dependent on it. Defence counsel submitted that a short period of wholly suspended imprisonment or probation was appropriate. He emphasised that the deceased was a seasoned user of opioids and that, unlike in Tempelmeier, this was not a supply leading to the death of a very young person. He submitted that, despite the tragic consequences, the amount of drugs supplied was very small, (between 0.2 and 0.6 grams).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The respondent accepts the concept of special leniency where an offender confesses to what was an unknown crime, as explained by Street CJ in R v Ellis,[4] Hayne J in AB, and McHugh J in Ryan v The Queen[5]. The respondent emphasises, however, McHugh J’s observations in Ryan[6] that this was not “a rule to be quantitatively, rigidly or mechanically applied” and that the significance of the leniency to be given will depend on the facts and circumstances of each case. The respondent also emphasises Hayne J’s observations in Ryan[7] that a sentencing judge’s omission to make express reference to the principle does not demonstrate error in the absence of a conclusion that the sentence was excessive. The respondent contends that the applicant’s co-operation was not as significant as in Ellis, AB and Ryan. The applicant was not confessing to an entirely unknown offence. He did not present himself to police; the deceased’s mobile phone lead police to him. There were particular mitigating features in Hauser which, the respondent submits, were not present in this case. Tempelmeier was sentenced on the basis that imprisonment could be imposed only as a last resort, whereas, the respondent contends, that principle is no longer apposite in sentencing this applicant. The sentence imposed in this case, he contends, was not inconsistent with that imposed in those cases. The sentencing judge made appropriate allowance for the level of co-operation and did not err. The sentence was not manifestly excessive, even if a different judge may have imposed a lesser sentence.[8]Nor was it unreasonable or plainly unjust. The respondent contends that the application for leave to appeal should be refused.[4](1986) 6 NSWLR 603, 604.[5](2001) 206 CLR 267.[6]Above, 272 [15].[7]Above, 312 [153].[8]R v Tout [2012] QCA 269, [8].Conclusion The respondent accepts, as the prosecution did at sentence, that this was a case where “the circumstances of the offence arise solely...as a result of what [the applicant] told police.”[9] It is not suggested, for example, that the deceased’s text message to the applicant, which led to police interviewing him, was sufficient to charge the applicant. Bell’s admissions appear to have come after those of the applicant but it is not clear from the information before this Court whether Bell was contacted as a result of information provided by the applicant. Whilst Bell ultimately implicated the applicant in his statements to police, the respondent concedes that it would be difficult to convict the applicant on Bell’s testimony as Bell had not been charged with any offences arising from this matter and could claim privilege against self-incrimination. It is true, as the respondent emphasises, that unlike in Ellis, AB and Ryan, the police in this case knew that someone must have supplied the deceased with the heroin which was the cause of his death. Nevertheless, the applicant’s confession to police was the reason why police were able to charge him with this offence. The case was therefore one requiring special leniency because of his co-operation. Unfortunately, defence counsel at sentence did not emphasise that it was the applicant’s confession to police which resulted in him being charged and was the only reliable evidence against him, or to the AB principle. As a result his Honour, unsurprisingly, made no reference to these specific facts or the AB principle in sentencing, although referring generally to his full co-operation and admissions.[9]T1-3, AB 7, l 38 – l 39.

Ratio Decidendi

Legal Principle Established

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