Supreme Court at Brisbane – Date of Sentence: 13 July 2021 (Wilson J)
DELIVERED ON:
24 May 2022
DELIVERED AT:
Brisbane
HEARING DATE:
8 February 2022
JUDGES:
Morrison and Bond JJA and Applegarth J
ORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant and co-accused were jointly charged with trafficking – where the applicant was described by the sentencing judge as “the architect” and “the brains” of the trafficking – whether the sentencing judge sentenced the applicant on the basis of factual findings not properly established by the evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where the applicant and co-accused were jointly charged with trafficking – where the applicant was sentenced to 10 years’ imprisonment with an automatic Serious Violent Offender declaration requiring the applicant to serve eight years before being eligible for parole – where the co-accused was sentenced to nine years’ imprisonment to be eligible for parole after three years – whether application of the parity principle requires the Court to reduce the applicant’s sentence to less than 10 years
[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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Details
AGLC
R v Smith [2022] QCA 89
Case
[2022] QCA 89
Decision Date
CaseChat Overview and Summary
In the matter of R v Smith, the applicant, who was jointly charged with trafficking dangerous drugs with her co-accused, Lawrence Cheers, sought leave to appeal against her sentence. The applicant was described by the sentencing judge as "the architect" and "the brains" of the trafficking operation, and was sentenced to 10 years' imprisonment, triggering an automatic Serious Violent Offender declaration that requires her to serve 80% of her sentence before being eligible for parole. Cheers was sentenced to nine years' imprisonment, with parole eligibility after three years, reflecting his early plea. The applicant's appeal was based on two grounds: first, that the sentencing judge had mischaracterised her role in the trafficking operation; and second, that the disparity in their sentences breached the parity principle.
The court was required to determine whether the sentencing judge had erred in her characterisation of the applicant's role and whether the difference in their sentences breached the parity principle. The court found that the sentencing judge had not erred in her assessment of the applicant's role, and that the difference in their sentences did not breach the parity principle. The court considered the similarities and differences in the circumstances of the applicant and Cheers, and their respective roles in the trafficking operation, and concluded that the sentencing judge had appropriately reflected the differences in their culpability and circumstances in the sentences imposed.
The court dismissed the application for leave to appeal, finding that the applicant had not established any error on the part of the sentencing judge. The court found that the sentencing judge had correctly identified the differing roles and culpability of the applicant and Cheers, and had sought to reflect them in the sentences imposed. The court found that the difference in their sentences did not breach the parity principle, and that the applicant's sentence was appropriate in all the circumstances. The applicant's appeal was dismissed, and the original sentence was upheld.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
The similarities between the co-offenders are that they were engaged in the same criminal enterprise, lived together and took the risks and rewards associated with their profitable business, including a lavish lifestyle.Facts The sentencing hearing on 13 July 2021 proceeded on the basis of an agreed statement of facts. Count 1 on the indictment charged the applicant and Cheers with trafficking in dangerous drugs between 15 December 2018 and 11 April 2019. During that period the applicant and Cheers were supplied with drugs on credit by a criminal syndicate. They sold the drugs they sourced in large quantities. The drugs included methylamphetamine, MDMA, cocaine, GHB and cannabis. By the time police commenced investigating the trafficking business in late 2018, it was well-established. At least nine people were employed to deliver the drugs. The applicant directed “runners” by sending them messages through encrypted phone applications. She would routinely request updates on the runners’ stock levels and give them directions about returning the cash and not to carry too many drugs with them in their vehicles at one time in case they were intercepted by police. During the trafficking period the applicant used different phones. The business used a number of vehicles to evade detection. At times, the applicant and Cheers enforced debts with threats of violence. The applicant and Cheers met through the drug scene. Their relationship deepened and they used drugs together. He ended up moving in with her in late 2018. Initially he became involved in occasional deliveries and pick-ups. In early 2019, the applicant sought to formalise the relationship and offered Cheers a third of the profits. During the trafficking period, the applicant and Cheers lived together in a luxury home at Hamilton. Drugs were kept at that home in concealed places. Cheers installed a safe at a customer’s home to store drugs and avoid police detection. The business conducted by the applicant and Cheers had a high turnover, grossing more than $1 million over an 11-week period and generating a profit of more than $340,000 in that period. Between 21 January and 16 March 2019 the business arranged 750 supplies, including 1.625kg of cocaine, 1.5kg of methylamphetamine, more than half a kilogram of MDMA powder and 720 MDMA pills, along with significant quantities of other drugs. Although the applicant and Cheers were drug dependent, their trafficking was commercially motivated. To give an air of legitimacy to their drug trafficking income and lifestyle, they registered a business name in late March 2019 and leased premises at Hamilton to operate as a barber shop and a homewares store. They told an associate that the purpose was to “get money running through” the business. Significant cash payments were made to a shared credit card that was used to buy luxury items. Substantial amounts of cash were deposited into the applicant’s debit account. The applicant paid $49,000 in cash to a car dealership associated with a drug associate as a deposit on a Mercedes and used her bank accounts to repay the balance each month.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
There is no reason to think that the sentencing judge in this case was not aware of and did not seek to apply the parity principle as required by the law. Her Honour plainly identified the differing roles and culpability of the applicant and her co-offender and sought to reflect them in the sentence which she imposed on the applicant. I respectfully adopt the reasons expressed by Applegarth J at [110] to [136] as a sufficient explanation of why the applicant has not established that the sentencing judge breached the parity principle.Conclusion Both grounds of the application having failed, I agree with Applegarth J that the application should be dismissed. APPLEGARTH J: The applicant controlled a sophisticated drug trafficking business. It trafficked in large quantities and derived huge profits. For example, in an 11-week period it achieved more than $1 million in sales and made a profit of at least $343,528. Under an agreement with her junior partner, Lawrence Cheers, the applicant was entitled to 65 per cent of the business’ profits. The applicant and Cheers were charged with trafficking in dangerous drugs and with numerous other drug-related offences. Each pleaded guilty. The applicant was sentenced to 10 years’ imprisonment. As a result, she was subject to an automatic Serious Violent Offence (“SVO”) declaration and will be required to serve 80 per cent of her sentence before being eligible for parole.[1][1]Penalties and Sentences Act 1992 (Qld) s 161A, s 161B (“the Act”). The applicant does not suggest that the sentence was manifestly excessive. Instead, she seeks leave to appeal on two grounds. First, the learned sentencing judge is said to have erred in finding that she was “the architect” or “the brains behind” the business. This is said to have overstated her role as a partner in the business. For the reasons that follow, this ground is without merit. Second, the sentence imposed on the applicant is said to have breached the parity principle because Cheers received a sentence of nine years’ imprisonment, with eligibility for parole after three years to reflect his early plea. The fact that the applicant will be required to serve five more years than Cheers before being eligible for parole is said to be a disparity that is not justified by the differences in the culpability or circumstances of the two co-offenders. The applicant submits that equal justice requires that her sentence be reduced, notwithstanding that a sentence of 10 years’ imprisonment would otherwise be an appropriate sentence. This ground requires consideration of the differences and similarities between the circumstances of each accused and their offending. It also requires consideration of how equal justice is accommodated in a case like this in which the sentence of one accused engages the SVO scheme and meaningful recognition of a guilty plea can only be given by reducing the term of imprisonment, whereas a co-accused sentenced to less than 10 years’ imprisonment has a timely plea recognised by parole eligibility after one third of the sentence.