R v Stevens - [2017] QCA 61

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stevens [2017] QCA 61

PARTIES:

R
v
STEVENS, Brett Raymond
(appellant/applicant)

FILE NO/S:

CA No 212 of 2015
CA No 305 of 2015
SC No 686 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 2 September 2015; Date of Sentence: 20 November 2015

DELIVERED ON:

11 April 2017

DELIVERED AT:

Brisbane

HEARING DATE:

16 September 2016

JUDGES:

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

ORDERS:

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of trafficking in a dangerous drug, producing a dangerous drug and supplying dangerous drugs after a 28 day trial – where the ground of appeal was that the jury’s verdict is unsupportable and against the weight of the evidence – where the appellant was producing, trafficking and supplying dangerous drugs with help from a number of persons – where the other persons gave evidence that the appellant owned a pill press and directed the drug operation – where one witness gave evidence to the Crime and Misconduct Commission – where the appellant argued that the witness’ evidence could not be accepted because the witness had reasons to reduce his own involvement in the trafficking scheme and his evidence was therefore incredible and unreliable – where the trial judge directed the jury that it would be dangerous to convict on the evidence of that person alone unless the jury found that it was supported by other independent evidence – where other evidence included cash, drugs and things used to produce drugs seized by police, recorded conversations and text messages – whether the verdicts were supported by other evidence – whether it was open to the jury to be satisfied beyond reasonable doubt, that the appellant was guilty

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was sentenced to 13 years imprisonment for carrying on the business of unlawfully trafficking dangerous drugs – where a conviction was recorded but there was no further punishment for the count of producing a dangerous drug – where the applicant submitted that the sentence is manifestly excessive when compared to sentences imposed on co-offenders, related offenders and in similar cases – where the applicant did not complain about the facts considered by the sentencing judge but contended that the sentencing judge erred in their application of the parity principle – where the respondent submitted that the applicant was higher in the organisational chain than related offenders – where the court should only interfere with a sentence where there has been a departure of principle by the sentencing judge – whether the sentence is comparable to those imposed on offenders in similar cases – whether the sentence is manifestly excessive

Criminal Code (Qld), s 632(1)
Penalties and Sentences Act 1992 (Qld), s 13A

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, followed
Director of Public Prosecutions v Hester [1973] AC 296, cited
Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, followed
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15, cited
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, followed
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, followed
R v Baden‑Clay (2016) 90 ALJR 1013; [2016] HCA 35, followed
R v Barker[2015] QCA 215, distinguished
R v Floyd [2014] 1 Qd R 348; [2013] QCA 74, followed
R v Gordon[2016] QCA 10, distinguished
R v Jenkins, Rollason & Brophy[2008] QCA 369, followed
R v Nguyen[2016] QCA 57, followed
R v Pham (2015) 256 CLR 550; [2015] HCA 39, followed
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, followed

COUNSEL:

W Terracini SC, with E Nicolsen, for the appellant/applicant
D C Boyle, with C W Wallis, for the respondent

SOLICITORS:

Archbold Legal for the appellant/applicant
Department of Public Prosecutions (Queensland) for the respondent

MORRISON JA: After a 28-day trial Mr Stevens was convicted on three counts:
(a)trafficking in a dangerous drug, namely 3, 4-methylenedioxymethamphetamine (MDMA), between 1 August 2007 and 4 February 2009;
(b)producing a dangerous drug (exceeding 2 grams), namely MDMA, between 1 August 2007 and 4 February 2009; and
(c)supplying dangerous drugs, namely methylamphetamine, on 21 July 2008.
He was sentenced to 13 years’ imprisonment.
Mr Stevens appeals against his conviction on the ground that the verdict was unreasonable and cannot be supported by the evidence. He also seeks leave to appeal against the sentence imposed, on the basis that it is manifestly excessive.
These reasons deal with the appeal against conviction and the sentence application.
The applicable legal test
In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen[1] requires that this Court perform an independent examination of the whole evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt. It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.
[1](2011) 243 CLR 400, at [20]-[22]; see also M v The Queen (1994) 181 CLR 487, 493, 494.
In M v The Queen the High Court said:[2]
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”
[2]M v The Queen at 493. Internal citations omitted. Reaffirmed in SKA v The Queen (2011) 243 CLR 400.
M v The Queen also held that:[3]
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”
[3]M v The Queen at 494.
Recently the High Court has restated the pre-eminence of the jury. In R v Baden-Clay[4] the Court said:
“[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact.” Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.
[66]With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’”
[4][2016] HCA 35, at [65]-[66]. Internal citations omitted.
The trafficking charge related to a period between 1 August 2007 and 4 February 2009. The direct evidence for the first part of the period (from August 2007 to March 2008) came from the witness YBS. It is therefore appropriate to commence with his evidence.
YBS’s evidence
First trip to Sydney
YBS met Stevens in June or July 2007. He described the first time he was asked by Stevens to do a trip for drugs. Stevens invited him to Sydney, to a race meeting and asked him if he could deliver something to his home address at Burpengary, saying it was just car parts.
He described the arrangement: “I was to meet someone … across the road from Eastern Creek Raceway, outside the front of the pub. Someone was going to give me a box, and … I was to drive it back and leave it on the table or on the verandah of his house and … He asked me if could pick up the box of parts off someone and drop it back to his house in Burpengary ... and leave it on … the back porch.”[5]
[5]AB 370-371.
The box weighed about a kilogram, and was about the same size as a sports-shoe box. It was sealed with tape around it. YBS believed he was taking car parts back to Brisbane. He delivered them to Stevens’ house and left them on the back verandah.
Second trip to Sydney
YBS went to Sydney a second time. Stevens asked him to pick up a backpack from a man who was going to meet him at a particular location on Parramatta Road, near a kebab shop. YBS was then to drive back to Brisbane to deliver it. He drove down to Sydney, picked it up and drove it home. It weighed about two kilograms.[6]
[6]AB 372-373.
YBS explained why he did it: “At the start of our conversations I thought I might be able to work with his race team”.[7]
[7]AB 373.
Stevens asked him if he could sell some ecstasy pills. He told Stevens that he had a friend (Kieran Brown) who could move large quantities of ecstasy pills. Stevens wanted to meet Brown, so he introduced them.[8]
[8]AB 486.
The pill press
Stevens spoke about bringing a pill press up from Sydney, to make more tablets.[9] YBS saw it when it arrived on the back of a ute. He described calls he received from Stevens about the pill press:
“The only phone call I got between when I actually saw the pill press and the conversation when [Brown], [Stevens] and myself were at [Stevens’] house at Burpengary, [Stevens] rang me to say that … the ute that was bringing the pill press up … was out of registration and the police had pulled it over and the pill press was on the back and he was getting quite abusive at me because the car was out of registration because I’d borrowed it a couple of days prior before the pill press was coming up. … I think it was around Newcastle …[10] Then he said the car couldn’t be moved from the location on the side of the road until it was registered, and then the next thing … he rang me to say that the car had then been registered and they were allowed to move the car and the girl continued driving up towards Queensland”.[11]
[9]AB 374.
[10]AB 375.
[11]AB 375.
YBS related the description of the pill press, given to him by Stevens: “[Stevens] said to me it weighed 300 kilos. It was stainless steel, had a perspex box on the top with Perspex sides and a merry-go-round looking wheel with shafts coming off it and … two knobs at the front with a little light-up box. … The perspex was … on top of the machine and the rest of the machine … looked like stainless steel to me”.[12]
[12]AB 376.
When the machine was unloaded Stevens, YBS, Brown and a person known as “Jewish”[13] were there. There were 60 kilos of lactose powder, coloured chalk and some other boxes which had different stamps to make different shapes. The lactose powder was in another box in front of the pill press. Once the pill press was inside the bedroom Stevens was fiddling with it and putting different amounts of powder and colouring in to make different sized pills.[14]
[13]His real name was Nick Heilbronn.
[14]AB 376.
Stevens told YBS that he had paid $20,000 a bag for the lactose powder, and he needed to make $9 a pill: “he could get the MDMA to make the ecstasy pills, and he was paying $90,000 a kilo, so he needed to get $9 back per pill”.[15] The machine could pump out 5,000 or 10,000 pills per hour.[16]
[15]AB 376, 382.
[16]AB 377.
Stevens said that Brown and Heilbronn were making the pills at the property; and once the pills were made they were divided up: “if you needed pills between certain amounts you would just say I need [5,000] pills or 10,000 pills, and [Brown] or Jewish usually would drop them off[17] … We were to sell them … [Stevens] was to get nine dollars … per tablet, and we were to sell them. Whatever we sold them after that was our profit.”[18]
[17]AB 378.
[18]AB 378.
Third trip to Sydney
Stevens asked him to go to Sydney and bring back 25 kilograms of MDMA crystal. He was to fly down and drive back with a suitcase. He met Stevens in Sydney and took the suitcase, in which there was four or five blocks of brown solid crystal.[19] He then drove back to the Gold Coast, where he gave the suitcase to Brown. Once the suitcase went to Brown “then there was a mass produce (sic) of pills made and … the product had to be moved each week … trying to move a certain amount of pills each week”, because Stevens said the Sydney people had to be paid;[20] Stevens called them the Serbians.[21]
[19]He saw this because Stevens opened the suitcase. That fact was not included in his CMC statement: AB 477.
[20]AB 378-380.
[21]AB 383.
Brown and Heilbronn were making the pills: “We were all selling them and distributing them. And then … the money from the pills I sold I would drop to … Stevens’ … home address”. That went on for six months[22] during which YBS estimated that he made $800,000.[23]
[22]AB 382, 400.
[23]AB 386, 400.
YBS made a profit of 50 cents per tablet.[24] He was selling between 5,000 and 20,000 pills a week, and getting pills twice a week: “When I received the pills from [Brown] I would already have someone lined up … to buy them. … I would specify a quantity to him. He would bring that to me, and … I would sell it”. The money would go back to Stevens.[25]
[24]AB 382.
[25]AB 383, 387.
After about six months, in January or February, there was a change:
“… it was … getting out of control. And there was … too many pills getting produced. I couldn’t move the quantity that was asked of me. I was giving most of the pills … back to [Brown] or not even accepting them at all. … it was getting out of control. … too many tablets made. And there was no way possible I could move the quantity. The quality of them was getting less and less. And so I … was sort of steering clear of it for a while”.[26]
[26]AB 387.
Stevens began abusing YBS and threatening him because he had introduced Brown and the amount of drugs being made “was out of control”.[27] The threats were to do with the fact that the pill press was missing from the house where the pills were being made.
[27]AB 395.
A fourth trip to Sydney was made, to pick up 10,000 pills. YBS drove down in a utility. Stevens provided the money, about $80,000.[28]
[28]AB 396-397.
YBS said there was a confrontation one night when Stevens arrived at YBS’s house with some men in balaclavas. YBS ran off when he saw them. Stevens called him and said the men were looking for their money and the pill press. Threatening words were exchanged with the men, and YBS called the police.[29]
[29]AB 397-398.
Cross-examination of YBS
The cross-examination of YBS highlighted his criminal activities in his self-confessed drug trafficking, and his inconsistent statements concerning it. For example, he was confronted with his previous testimony at the committal hearing and what he said to the CMC. Early in the cross-examination it was established that he had been sentenced to about two months’ imprisonment and had two properties seized.[30] It was put to YBS that he, and not Stevens, was the real drug dealer, and that he had falsely accused Stevens to extract himself from his legal problems. YBS denied both.[31]
[30]AB 400, 401.
[31]AB 401, 432.
YBS said in his CMC statement that at the Winternationals (a racing meeting) in 2007, he “saw [Stevens] on this occasion, but I was not formally introduced”. He could not remember if that was accurate as it “was too long ago”.[32] He denied suggestions that the first trip (when he took back what he believed were engine parts) was one where he was not invited, but just showed up, and that no parcel was collected.[33]
[32]AB 446.
[33]AB 465-466.
As to the trip when YBS said he drove down and collected a backpack, he said he could not recall if the car was a hire car or his own. He said that trip was before Christmas that year. He denied that the trip was nothing to do with Stevens.[34]
[34]AB 467.
YBS said that when the pill press arrived he was already selling MDMA pills for Stevens.[35] He was confronted with what was in his statement to the Crime and Misconduct Commission on this issue, and answered that he was already selling pills, and that the sequence in the statement was “a bit back-to-front”:
“And then at paragraph 45, do you accept you say this: On the next occasion that I caught up with [Stevens], he told me that he had some pills. I thought that [Brown] had made them. [Stevens] said words to the effect of who can you get rid of pills through and you replied I don’t know anyone.
?---All right.
So what I’m putting to you there is that that’s – paragraph 45 of your statement - - -?---Okay.
- - - is the first time that you are selling pills or you’re asked to sell pills for… – Mr Stevens. What do you say? That’s the first time in your statement you discuss that?---First time in my statement what, sorry? I discuss what?
That you discuss actually selling pills for Mr Stevens at paragraph 45?---No, that wasn’t the first time.
No, I’m talking about your statement?---As I already told you, some in this thing is a bit back-to-front. It’s not exactly how everything, bit by bit, panned out. It was to the best of my knowledge at the time. I’ve already told you that.”[36]
[35]AB 468.
[36]AB 468 lines 24-43.
The sequence of events in the statement was the subject of further explanation by YBS, when he was referring to the timing of the pill press arriving and asking others to help sell the pills:
“Do you accept that it’s after Mr Stevens asked you if you know anyone who can get rid of pills through? You reply I don’t know anyone and it’s then in your statement at paragraph 46, you speak about making inquiries with this Mike?---Yeah, Mike was towards the end though so I don’t know why – why I said know anyone. Mike was towards the end after I asked around because this was after – in between the pill press arriving and this conversation. There had already been a phenomenal amount of pills made and sold so I don’t – I don’t know why that’s in there like that. Mike was the last person I dealt with with the pills.
So you were selling pills to other people before you started using Mike?---There was – yes, that’s right, the people that were on that sheet, and that was in between getting this machine and this conversation so I don’t understand why that’s like that.”[37]
[37]AB 469 lines 25-36.

He said the press arrived before Christmas.[38] YBS denied the suggestion that there was, in truth, no pill press.[39]
[38]AB 468.
[39]AB 470.
He was cross-examined about the incident where he said the car bringing the pill press up from Sydney had been pulled over because of problems with its registration. It was put to him that if there was a conversation between him and Stevens it was in the context that YBS had used the car to move house, and crashed it, but not told Stevens. YBS said he had crashed the car, but he did tell Stevens.[40] He said:
“Well, do you recall the car being pulled up for [being] unregistered and Mr Stevens - - -?---I don’t recall. I recall the phone call of the car – that I got about the car being pulled up because I wasn’t driving it. A woman was driving it.
And that Mr Stevens asked you about it because you were the last one to have had the car?---I was the last one to have had the car. Yeah.
And that - - -?---But that wasn’t before – I don’t think that was before it was crashed. When the – I don’t know the lady’s name, whoever picked up the pill press and the car was out of registration. I think I crashed it after that, by memory.”[41]
[40]AB 469-470.
[41]AB 470 lines 38-47.
He also denied borrowing a utility from Stevens to move to a unit on Chevron Island, saying he bought new items for that unit.[42] He agreed that he had crashed the utility but could remember very few details of how the resultant claims were resolved. He could recall being sent a message from Stevens that said: “Can you get him to sort out the car. If the cunt doesn’t do anything, I will break his fucking neck.” He said that was to do with fixing the horn on the vehicle.[43]
[42]AB 483.
[43]AB 484-486.
YBS denied that there was no talk of a pill press being on the back of a utility, and that if Stevens said anything was on the back it was car motors.[44]
[44]AB 471.
YBS was cross-examined on his criminal record, which included a conviction in November 2014 for burglary and robbery. The events surrounding that offence were explored, including: his denial to police of being involved in the robbery, notwithstanding that he later pleaded guilty; and the psychological report used in mitigation of his sentence for that offence.[45]
[45]AB 401-405.
YBS’s house was searched by police in May 2008, only a few days after he and his partner had returned from a three week overseas trip. He was found to have 98 ecstasy tablets and $105,000 in cash.[46] He said the $105,000 came from the pills sold for Stevens.[47] He said he used some of the drug money to go overseas.[48] YBS said that there was no deal with the (then) prosecution and investigators that, out of the police search of his house, he would face only a charge of simply possessing the pills.[49]
[46]AB 405, 425.
[47]AB 406.
[48]AB 427.
[49]AB 426.
A “tick sheet” was also found during the May 2008 search.[50] YBS agreed he had lied about that tick sheet during the committal, when he said it was not his, nor was the writing his.[51] In fact the handwriting was his.[52] At the committal he also denied knowing the people on the tick sheet, when it was true that he knew some of them. YBS said he lied about that to protect the people on the sheet.[53]
[50]AB 408.
[51]AB 409.
[52]AB 420.
[53]AB 425.
The tick sheet recorded 18 entries for the sale of 21,000 pills in total, for between $200,000 and $250,000.[54] YBS maintained that he had stopped selling the drugs in January or February 2008, before he left for the overseas trip.[55]
[54]AB 421.
[55]AB 422.
YBS had reached an agreement with the Crime and Misconduct Commission[56] to give evidence against Stevens, and signed an undertaking to that effect.[57] He gave a 25-page statement to the CMC on 10 October 2008.[58] The trigger for that was that YBS’s home was invaded one night by people wanting money in relation to some “dud pills”, and a person called Lee Capper was held at knifepoint. As a result YBS rang an officer with the CMC.[59]
[56]Later the Australian Crime Commission.
[57]AB 407.
[58]AB 426.
[59]AB 432-433, 441.
He agreed that in his CMC statement he said that some of the $105,000 was his own money that he had taken out of an ANZ bank, and that only $40,000 of the money was drug-related. He said he could not be sure just how much of that money was drug money.[60]
[60]AB 427.
YBS was given an undertaking by the Attorney-General on 25 May 2009, that any evidence given by him (or derived from his statement) could not be used against him.[61]
[61]AB 429.
YBS denied that he had posted a Facebook message in August 2009, which said: “Hey, sorry doggin [Stevens], but I had to get off my charges somehow. I want to kill the cunt anyway and I will sooon (sic)”. He admitted that it was sent from his Facebook, but that Lee Capper had admitted hacking into his Facebook and sending that message.[62] He denied that he was “doggin” Stevens to get off his own charges.[63]
[62]AB 431.
[63]AB 432, 498. It is fair to assume that “doggin’” was a reference to revealing Stevens’ drug-related conduct to the CMC.
YBS had an interest in drag-racing cars before he met Stevens. He accepted that he would have spent about $100,000 to $150,000 over the years, modifying his racing car.[64] YBS said that he and Stevens discussed Stevens’ building a car for YBS to race in. He denied that it was a car to purchase, that the price was $350,000, or that a quote was done. He repeatedly denied that a form of quote addressed to “PT” was to him, or that he had previously seen it.[65] YBS denied that any repayment he made to Stevens was in respect of a racing car being built for him by Stevens.[66]
[64]AB 442.
[65]AB 450-452, 464.
[66]AB 488-490.
YBS said his own arrangements were that everything was in his partner’s name (YBT), as he had been bankrupt in 2003, when he was 25 or 26.[67]
[67]AB 443-444.
YBS was asked about the trips to Sydney and their sequence, going through his CMC statement. He was unable to remember some details as it was too long ago:[68]
“Was there two occasions you’d been in Sydney - - -?---There were other trips. I can’t remember. You’re asking me questions I can’t remember. It was too long ago.
Well, when discussing your trip, with Mr Boyle, to Sydney involving Troy and a utility, you did not mention Nick or Kim?---Okay.
Was that deliberate? Were you protecting them the same way you were looking at protecting people at the committal hearing?---No.
So it’s either a different trip or you’ve forgotten. Which is it?---It might be both.”[69]
[68]AB 446-448.
[69]AB 448 lines 37-46.
YBS denied the suggestion that he did not speak to Stevens by phone while in Sydney on the first trip down. He said he did speak to him and explained that while he might not have good recall on some things, he did on others:
“Well, I’m putting to you whoever it was you spoke to on the phone was not Mr Stevens. What do you say?---I don’t have anything to say.
And that trip to Sydney with you and Nick and Kin and Troy did not involve Mr Stevens at all?---I don’t know. I spoke to a Brett Stevens on the telephone.
And just out of curiosity - - -?---Sure.
- - - you didn’t mention Kin and Nick being involved in that trip to Sydney when you were giving evidence to Mr Boyle?---Yesterday? That was a particular trip that – it must have been a different trip. As I said, the – the way it shows in here after having a bit of a read, is what – what happened – I mean, it’s been a while since, I mean, the exact event. Event by event, I might be a bit confused with. But apart from that, everything else is true.”[70]
[70]AB 463 lines 28-41.
YBS could not recall whether airline tickets to Sydney or hire cars had been booked in his name or not.[71]
[71]AB 449.
YBS accepted that the sentence imposed in July 2010 for possession of 98 pills was 12 months’ imprisonment, suspended after 53 days. However his memory or understanding was not good, as when he was shown the sentencing remarks:[72]
[72]AB 459-460.
“So that doesn’t refresh your memory about the penalty that was imposed? You’re shaking your head?---It sheds a bit of a light on it. I don’t really understand it too much.
No. But do you accept that those things are in your document I just put to you?---No. But I accept the things on the bit of paper in that document. Yes.”[73]
and
“And in the closed court, do you recall the judge saying to you: The sentence that I have imposed has been reduced under section 13A of the Penalties and Sentences Act.
?---I don’t remember her saying all this to me. It was five years ago but if it’s on here, that’s what she said.
Well, do you accept that sentence is on that document?---Sure.
And then the justice goes on: But for section 13A, the sentence that I would have imposed would have been a sentence of imprisonment of 18 months suspended after four months for an operational period of two years.
Do you accept that’s in the document?---That’s what it says.
Do you recall that being said?---No.”[74]
[73]AB 460 lines 29-34.
[74]AB 461 lines 26-44.
Stevens lent YBS some money for the deposit on a unit. Stevens executed a Statutory Declaration in respect of it, dated 1 November 2007, and referring to a sum of $179,500. The Statutory Declaration referred to it as a gift.[75] That amount was not repaid.[76]
[75]Exhibit 2, AB 2626.
[76]AB 399.
As to the loan of $175,000 from Stevens, YBS said that the wording on the statutory declaration “was the way it had to be worded to get the finance”.[77] He could not get finance himself.[78] He was asked why he had to get the loan and why he did not use drug money:[79]
“So if you’re selling pills to Mr Stevens, why did you need to borrow money from him to buy this unit. Why couldn’t you just use your drug money?---At the start, … there wasn’t really much money getting made. … I don’t think the pill press … was around this time. I can’t remember much about it, and this doesn’t really have much to do with me. This is between YBS and [Stevens] … it doesn’t have my name on it, does it? No. So it’s nothing to do with me.”
[77]AB 471, 490.
[78]AB 489-490.
[79]AB 472 lines 1-6.
YBS was unsure of the delivery location for the pill press:[80]
“And when it was delivered to this address, am I right in saying you believe the address to be at the back of Aspley somewhere?---I don’t know the exact location.
Again, if I can take you to the spot. Do you recall, in your statement, that you believe the suburb where the pill press was delivered to was Albany Creek?---It might have been the back of Albany Creek, yeah.
Do you accept that’s in your statement, though, that it might have been Albany Creek? I can - - -?---Yeah, I would accept that. I don’t know the exact suburbs. It would be around that area.”
[80]AB 474 lines 14-23.
YBS said he watched Stevens test the pill press which was how he could relate the details of its construction and working.[81] He denied that the press had nothing to do with Stevens.[82]
[81]AB 474-475.
[82]AB 475.
As to the trip when YBS said he brought back a suitcase with 25 kilograms of MDMA in it, he said that his previous police statement (that he did not know what was in the suitcase) was mistakenly untrue.[83] He also agreed that the statement did not record that Stevens opened the suitcase in his presence, which, he said, was something he forgot.[84]
[83]AB 476.
[84]AB 477.
He was asked about an occasion referred to in his statement when he said he took MDMA pills to a “Mike”. YBS could not remember the address where he went to take pills to “Mike”, saying it was on a canal in an area towards Runaway Bay. He denied that he was making up that allegation as part of an attempt to cover for someone else, and said he showed officers from the CMC where it was.[85]
[85]AB 478-479.
YBS denied the suggestion that he never left things for Stevens on his back verandah.[86]
[86]AB 479-480.
It was Brown who introduced YBS to Heilbronn. YBS said he did not know his name, only that he was called “Jewish”. He said he mostly dealt with Kieran Brown.[87] He agreed that there were only a couple of times that Stevens met Brown in YBS’s presence, and that was at Stevens’ properties.[88]
[87]AB 487.
[88]AB 488.
As to the confrontation at his house, YBS agreed that it was about January 2008, and said that it concerned the pill press that went missing and poor quality pills. He denied that there were no balaclavas worn, and denied that Stevens did not threaten him.[89]
[89]AB 492.
YBS denied the suggestion that Stevens: “never had any drug related conversations with you”; never arranged (directly or indirectly) to get pills to him; had no involvement in the pill press; had no involvement in the trips to Sydney that YBS had related; had no dealings with YBS beyond discussions about a racing car.[90] He denied that he had made false allegations against Stevens to get himself out of trouble.[91]
[90]AB 494-496.
[91]AB 497-498.
As to the incident when Stevens’ utility was pulled over by police in New South Wales, this exchange occurred:[92]
“That – excuse me – just one thing, the talk involving you and Brett and the talk about a car being picked up in New South Wales, carrying something in the car, being stopped because it was unregistered, that only occurred the once, didn’t it?---The talk about the car being unregistered?
Yeah. Not as if there were, as far as you understood - - -?---There was one phone call about that, yeah.
Not as if, for example, there were two occasions when cars connected with… Stevens were pulled over in New South Wales because they were unregistered and had something on the back of them?---That’s the only one I remember.
Just the only one. Well, I put it to you that occurred and the car, being owned by Mr Stevens, or connected with Mr Stevens, was pulled over in New South Wales on 20 January 2007. Can you comment one way or the other?---I don’t know - - -
2008 – 2008. Thank you, Mr Boyle?---I don’t know when the rego was due on it, no.”
[92]AB 495 lines 1-17.
Re-examination of YBS
In re-examination YBS said that the pills reflected in the tick sheet came from Brown and were manufactured on Stevens’ pill press. The majority of the money recorded was not YBS’s profit, but went back to Stevens.[93]
[93]AB 499.
YBS explained why he went to the CMC:[94]
“[Stevens] said he had fixed the problem with the 25,000 pills that were duds. Nothing was getting fixed about it, and people were coming and threatening myself and my fiancée, and I’d had enough.”
[94]AB 499 line 40.
He was shown the document said to be an invoice for building a car, and said again that there were no discussions about building a car, though there were discussions about driving a car.[95]
[95]AB 501.
Police and other evidence
A number of police officers and officers with the Australian Crime Commission gave evidence as to: the issuing of telecommunications interception warrants; the installation of intercepting surveillance, and tracking and listening devices; phone investigations and phone recordings; surveillance logs; their observations while on surveillance; recordings of intercepted calls, texts and video footage of meetings and events; and the documentation of all the foregoing. That evidence included the identification of particular vehicles and people concerned with them. The people identified included Vlatko Tesic. Warrants were issued in respect of Vlatko Tesic, Katherine Stevens, Heilbronn, Kevin Marshall and Troy McLean. The warrants covered a number of telephones.
An officer of the Crime and Corruption Commission gave evidence of installing surveillance devices in a particular hotel room. He identified the recording of the intercepted conversation between Stevens and his employee, Krystal Carroll. That conversation was captured on 9 January 2009.
The telephones included a number belonging to Stevens, but also mobile numbers in other names.
Extensive evidence was given as to the way in which calls were monitored and recorded, and subsequently listened to by officers. Evidence was given as to the way in which the transcripts of intercepted phone calls and conversations were made. That included the identification of various parties as “M1” or “M2” and so forth. The intercepted calls were on CD’s, and arranged in a spreadsheet which was identified.
The evidence referred to above provided a very complete coverage of the provenance and integrity of the evidence as to: surveillance; interception; search warrants; identification of persons, times and places; search results; scientific analysis; and identification (to the greatest extent possible) of conversations between Stevens and others, and various combinations that excluded Stevens.
A police officer gave evidence that he stopped a Ford Falcon utility on 20 January 2008, when it was travelling north near Nerong (in New South Wales). The utility had a Queensland registration number. Two large wooden packing crates were on the back tray of the utility. The driver produced her drivers’ licence. The vehicle’s registration had expired in December 2007. Because of the isolated area and the weather, the police decided to escort the vehicle to the nearest town, Bulahdelah. The driver was directed to leave the car there and not drive it any further until registration had been effected.
The police recording of the encounter became Exhibit 5. It revealed that one of the boxes had strapping over it. The larger of the boxes was about one metre in depth and the smaller of the boxes somewhat narrower.
An officer of Queensland Transport gave evidence that the registration on the Ford Falcon utility was paid on 21 January 2008. The records indicated that one Katherine Stevens[96] paid the registration renewal. The utility was not registered in her name, but in the name of “Dion Prowse” at an address in Everton Hills.
[96]Stevens’ wife.
A police officer gave evidence that he intercepted a vehicle being driven by Heilbronn and a person, Sean Beachy, on 18 October 2008. As a result of their investigations they executed a warrant at an address in Rebecca Court, Broadbeach Waters. There they found a large mechanical pill press, and a quantity of drugs. In addition, another pill press was found in a bedroom of the same premises. The larger pill press was one that could press out multiple pills at the same time, whereas the smaller press could only do one pill at a time.[97]
[97]AB 808.
Police enquiries revealed that the house where the pill presses were found was rented by Heilbronn under a false name. Searches were also conducted at Heilbronn’s other residence and at premises occupied by other persons.
In cross-examination the police said that Stevens became part of the surveillance because of the conversations he was having with Vlatko Tesic, that Stevens was of “extra interest because it was identified he was supplying drugs to Vlatko Tesic”.[98] It was put, but denied, that there was interest in Stevens because he was a celebrity drag-racer.[99]
[98]AB 819.
[99]AB 819-820.
It was confirmed in cross-examination that the premises where the pill press was found by police were not being used to live in, but just to make pills.[100] DNA and fingerprint examination did not return very good results, inferentially because there were plenty of disposable gloves around the place.
[100]AB 824.
Police officers were called to testify to the continuity of possession and proper treatment of seized items.
A police officer gave evidence under the name of Symonds. He had been an undercover officer involved in transactions with Vlatko Tesic for the purchase of methylamphetamine. His evidence concerned recordings made of those meetings and his identification of the meaning of various things said in the conversations. He also identified Tesic from photographs.

Officer Symonds identified that a reference in the conversations with Tesic to “elbows” was a reference to the weight of methylamphetamine, where an “elbow” was a “pound” in weight. His evidence also included various drug deals done with Tesic.
In cross-examination, Officer Symonds said there were ten drug purchases from Tesic. He said there were about 20 purchases of MDMA pills, at about 1,000 pills at a time. During the period of this operation (11 months), Officer Symonds did not meet Stevens. Further, Tesic did not directly refer to Stevens, although he mentioned drag-racing one weekend and a “Steve-o”.[101]
[101]AB 614.
Another officer gave evidence concerning her operational control of Officer Symonds for a period of time. She took possession of substances purchased by Mr Symonds which, on testing, revealed that it was methylamphetamine. She also gave evidence of the identification of Heilbronn as the person from whom Mr Symonds obtained the drugs.
An Australian Crime Commission officer gave evidence that concerned identification of persons from the surveillance carried out. Matters referred to included:
(a)on 18 August 2008, at 4.51 pm, Stevens left his vehicle and entered a public telephone box; after using it for some minutes he exited the telephone box at 4.56 pm and returned to his vehicle and departed;
(b)at 5.01 pm the same day, Stevens left his vehicle to enter a different public telephone box, where he used it for three minutes, exiting and returning to his vehicle;
(c)at 5.42 pm the same day, on the evening of the same day Stevens was seen in the company of Tesic at a restaurant; video footage suggested that Tesic threw a punch at Stevens; also present was Tesic’s brother; video footage showed Tesic’s brother throwing a punch at Stevens, following which there was an animated and heated conversation with Stevens in front of the restaurant.
Police also gave evidence of a meeting between Stevens and a Darren Dark on 24 August 2008. That meeting was at about 7.04 pm and it was followed about an hour later by another meeting at a Shell Service Centre, when Stevens and Dark had a brief conversation. Following the conversation each returned to their vehicles and continued driving. Shortly thereafter, Dark’s car was intercepted by Police. They recovered a bag which contained $200,000 in zip-sealed large plastic bags.
An officer with the Australian Crime Commission gave evidence of his involvement in surveillance duties concerning Stevens. He referred to 30 July 2008 when he observed Stevens going to his car at the Brisbane Airport. Krystal Carroll went to the passenger side of the vehicle. An hour later Stevens’ vehicle neared a car wash on the Gold Coast and Stevens exited the vehicle. He met Tesic at the car wash.
He also gave evidence that on 18 August 2008, Stevens drove from his unit to a public telephone booth at Broadbeach where he appeared to use the phone for one minute. After leaving the telephone box Stevens drove back to his unit.
Police gave evidence that a property at Enoggera Terrace, Red Hill, was searched on 19 December 2008. Two pill presses were found.[102] The discovery came after a vehicle was intercepted by police, and the driver was one O’Campo, and the passenger one Dacombe. O’Campo’s fingerprints were found on one of the pill presses in the premises.[103] There was no link to Stevens in that house.[104]
[102]AB 1131.
[103]AB 1132.
[104]AB 1135.
Various samples were taken from the Enoggera Terrace residence, and revealed methylamphetamine.[105]
[105]AB 1139-1140.
Evidence was also given by a forensic and scientific officer that analysis on the pill presses seized at Rebecca Court revealed MDMA traces.[106] The evidence was that the multiple pill press can produce 5,000 tablets per hour.[107]
[106]AB 1142.
[107]AB 1145.
The foregoing is merely a synopsis of the type of evidence given to ground the surveillance and phone interception evidence. Quite a number of police officers or officers of the Australia Crime Commission were called to testify to various aspects of the surveillance efforts. Separate identification or further elaboration of their evidence is not necessary.
Evidence of YBT
YBT, YBS’s partner in 2008, gave evidence. She said that she met Stevens when she and YBS went to a drag-race meeting in Sydney.[108] She said when they drove back to the Gold Coast they took a cardboard box about the size of a shoe box. She could not recall how they came to have possession of it.[109] She did not know what happened to the cardboard box.
[108]AB 1060-1061.
[109]AB 1061.
She recalled that she had been to Stevens’ house, which she said was at Burpengary. This occurred between four and six times. The visits were short, taking between a few minutes and 10 minutes,[110] with the longest one being about 20 minutes.[111]
[110]AB 1062.
[111]AB 1062.
She came to know Brown, meeting him through YBS. She could recall only one occasion when they met, at a service station where YBS obtained a plastic bag containing drugs in the form of pills. That was at the Mobil Service Station at Coomera.[112] Other meetings occurred at a service station and Hungry Jacks. The meetings between YBS and Brown were short (up to 10 minutes) and usually YBS would get out of the car, speak to Brown then return to the car.
[112]AB 1062-1063.
YBT was unable to recall some details, particularly the time frame of events.
She recalled the purchase of her first house, at Chevron Island. She said YBS had a bad credit rating so everything was put in her name.[113] The deposit consisted of a cheque that was picked up from Stevens’ house and she thought it was for something like $179,000.[114] She did not know the arrangements by which the cheque was obtained, except that YBS told her to go and pick it up.
[113]AB 1064.
[114]AB 1065.
She was shown the Statutory Declaration relating to the “loan” between Stevens and YBS, identifying it as the document she had seen. She could not recall any dealings with Stevens about the document.
She and YBS bought a second house at Rudd Street, Broadbeach. She could not remember the purchase price or the deposit. She thought that the funds for that purchase came from drug dealings.[115] YBS provided all the money for the purchase, but she could not remember exactly what the figure was.[116] There came a time when she and YBS were getting a number of threats. They went to the USA for about two and a half to three weeks. After that the threats continued. Eventually the police executed a search warrant at Rudd Street, Broadbeach and found money and drugs.[117] She was charged with possession and YBS was imprisoned.
[115]AB 1065-1066.
[116]AB 1066.
[117]AB 1067.
After YBS was released she, YBS and Stevens went to dinner in Carseldine. YBS and Stevens went outside to speak to each other and then came back in. At one point Stevens “said something along the lines of, if you make a deal with anyone I’ll kill you or shoot you, or something like that, and then I walked out”.[118] The next day they received a summons from the CMC. It was the continued threats that led she and YBS to speak to the CMC.[119]
[118]AB 1068.
[119]AB 1068-1069.
Cross-examination of YBT
She could not recall whether there was more than one overseas trip, but thought that they needed to go away just before the police raid.[120]
[120]AB 1071-1072.
She said that YBS did not have a good credit rating so he could not get approval for any finance, which is why things were placed in her name.[121] YBS contributed about $600,000 to the Rudd Street property, in cash.[122] In addition, there was a cheque for $60,000. She got a loan from a bank, which YBS repaid.[123]
[121]AB 1075.
[122]AB 1076.
[123]AB 1077.
She identified the “tick sheet” as being in YBS’s writing, and agreed that the police found $105,000 in cash. She understood that to be drug money.[124] When the Chevron Island house was bought, they had new furniture for it, paid in cash by YBS.[125]
[124]AB 1078.
[125]AB 1078.
She was unable to say whether YBS was dealing in drugs before she heard of Stevens. The only time she saw YBS given drugs was the one occasion when Brown gave him a plastic bag full of tablets.[126] She could not recall the names Heilbronn or McLean. She did not see Stevens supplying drugs to YBS, nor giving him money, nor did she hear any “drug talk”.[127] She accepted that in her statement she had recorded the first instant as being at Eastern Creek Raceway in Sydney, and that when they left YBS was in possession of a cardboard box.[128] Beyond that she could not remember any details.
[126]AB 1080.
[127]AB 1081.
[128]AB 1082.
She could not recall much of what was put to her about various aspects of the dealings. She could recall that YBS was in possession of pills other than those given to him by Brown.[129] She also confirmed that there was a home invasion when they were at Rudd Street.[130] It was after that that she got in contact with an officer from the Australian Crime Commission and cooperated with that body. She denied that YBS ever discussed with her that he would falsely accuse Stevens of misconduct to get himself out of trouble.[131]
[129]AB 1085.
[130]AB 1086.
[131]AB 1087.
Evidence of Szczepanski
Mr Szczepanski was a mechanic working for Stevens. In November 2008 Stevens asked him to go to Western Australia to pick up some money. He gave him a piece of paper with a person’s name on it, and a phone number to call him. His instructions were to go to Perth, then drive south to Mandurah, get a hotel, and then call the person and in doing so to use a pay phone.[132] The instructions from Stevens were to tell the contact in Mandurah that he (Szczepanski) was there to catch up for a beer and “he would know what that meant”.[133]
[132]AB 1091.
[133]AB 1093.
Szczepanski travelled to Perth, hired a car and then drove to Mandurah. He used a pay phone to call the person indicated on a note given to him by Stevens, that person being referred to as “Single”. Single met him in the car park of the hotel and told him to see a movie and that he would then give him a call. That was the extent of the conversation.[134]
[134]AB 1094.
Szczepanski went back to the hotel in the afternoon and was met by a man, not Single, who gave him a bag with money in it. That also occurred in the car park of the hotel. The man said that he was $20,000 short, and that Szczepanski should follow him “back to the club house”.[135] He did so and received a plastic shopping bag with further money in it.
[135]AB 1095.
He returned to Brisbane and as he was driving away, police intercepted his vehicle and seized the money, which totalled $99,700.[136] When Szczepanski told Stevens what had happened and that the money had been confiscated, Stevens said it was “quite strange because … it’s for a sale of a motorbike”.[137] Stevens did not seem to be overly worried or concerned about the confiscation as it was for the purchase of a race bike and he would get the money back because it was not illegal to carry money.[138]
[136]AB 1096.
[137]AB 1096.
[138]AB 1097.
Szczepanski identified the person “Single” as a drag-racer. Szczepanski said he did not know Single, but had found out since that his surname was Ashelford. He understood Ashelford to be a drag-racer with his own racing bike team.[139]
[139]AB 1099.
In cross-examination it was put to him that Stevens did not tell him to use a pay phone. Szczepanski denied that, saying that was his instruction.
Evidence of Krystal Carroll
Stevens’ private assistant and events manager, Krystal Carroll, gave evidence of her involvement with him. She commenced work for him in June 2008 and ceased when police raided his premises in February 2009.[140] In addition to being his PA, she commenced a sexual relationship with Stevens. Relevant aspects of her evidence included the following:
[140]AB 1201.
(a)there were numerous occasions when she travelled with him, to work or otherwise, when he would meet various people; she was always directed to wait in the car while he went to meet the relevant person; those meetings could last a few minutes to a maximum of 20 minutes; she never went to any of the meetings;[141]
[141]AB 1186-1189.
(b)she questioned him about what he was doing and he responded that it was about money, which he needed otherwise he would lose his trucks;[142]
[142]AB 1188, 1193.
(c)at one point he told her that there were drugs, but “he would never touch them, he was like the middle guy”;[143]
[143]AB 1188.
(d)the people that Stevens was meeting did not, to her knowledge, have anything to do with his racing or other businesses;[144]
[144]AB 1189.
(e)she could recall him meeting with someone that she had not seen before, namely a man of Indian appearance; the meeting was on the way to the Gold Coast on the highway at a place near a fish and chip shop; she waited in the car while he got out and met the man; he was a few minutes (maybe 10 minutes) and then he got back in;[145]
[145]AB 1191-1192.
(f)she recalled an occasion when approximately $100,000 in cash was seized and she spoke to Stevens about it; Stevens said that he was going to lose his trucks if he did not have the money; he did not say the money was drug related, but she could recall that Stevens said he told the police the money was a deposit on a race car;[146]
(g)she referred to one of the recordings of a conversation between her and Stevens where Stevens said “remember all that stuff I told you about. I was getting something to make money”; she said that related to a conversation she had had with him asking what would he do if he was caught, and he said that “he wasn’t touching anything”;[147] she understood the reference to his “not touching anything” to be talking about drugs;[148] she recalled Stevens tell her that he was getting something that could make him money, but he never said what that was, simply that he was not touching anything and that is why he would not be caught;[149]
(h)when cross-examined about his response, that if he was caught that he was not touching anything, it was suggested that she assumed he was talking about drugs; she agreed, but said she could not think what else it would be; she accepted it was a possibility that that was a view she had formed in hindsight;[150]
(i)Stevens had a number of phones at any one time; his main phone was a Blackberry, but he also had prepaid phones; when she asked why he had the other phones he answered that it was because he could smash them once he had used them and that way “they couldn’t find the serial number on the phone”;[151] in cross-examination as to that, it was put to her that that was only in the context of him being angry and throwing them; she denied that, saying “he wanted to get rid of them”;[152]
(j)in cross-examination she denied the suggestion that Stevens “never admitted to you that he was involved on any level with drugs”, saying “he spoke of drugs”; however, she agreed that he did not say that he was involved with distributing drugs;[153]
(k)she agreed that he was trying to source money from non-conventional lenders and had been trying to arrange finance;[154]
(l)in cross-examination she denied the suggestion when it was put to her, that she had never waited in the car on the Gold Coast while Stevens met with people;[155]
(m)she agreed that she had never seen him possessing drugs, even for his own use;[156]
(n)she denied the suggestion that when he talked about getting something to make money, that was a scheme to offload his trucks;[157] and
(o)in re-examination she reiterated the conversation where Stevens said, in respect to drugs, that he would not touch them, but he was the middle guy.[158]
[146]AB 1192-1208.
[147]AB 1195.
[148]AB 1197-1198.
[149]AB 1198.
[150]AB 1215-1217.
[151]AB 1200.
[152]AB 1214.
[153]AB 1203.
[154]AB 1206.
[155]AB 1213.
[156]AB 1215.
[157]AB 1217.
[158]AB 1220.
Financial evidence
A forensic accountant, Ms Linklater, gave evidence of her analysis of all the financial information in respect of Stevens’ companies and personal accounts, as well as those of his partner, Katherine Stevens. She described the process of identifying bank accounts, assembling bank statements supplied by all the banks, then analysing the data to see if a source for the deposits into accounts could be identified. This included companies which were controlled by Stevens or his wife, as well as their personal accounts. The source material for the data relied on was tendered, as were the reports prepared by her.
In some cases Ms Linklater extracted further information from the banks, namely underlying transaction records, such as bank vouchers and transfer reports. Those that could be reconciled by the documents were eliminated, leaving a subset of transactions for which there was no description in a bank statement or on any of the other bank documents. The methodology employed was to see if there was any indication on a transaction voucher or in the MYOB records to suggest where the funds had come from, and if there was, that transaction would be excluded from the calculation of unsourced income. In that way, income from the sale of merchandise was eliminated.
By reference to a number of transactions, Ms Linklater showed the jury how she went about her task and what the various entries were taken to mean. For example, the jury followed the tracing process in respect of loans by Stevens to any of his companies, and deposits made to bank accounts.
Ms Linklater had prepared schedules for the jury’s use, so that the various transactions could be followed. The schedules showed the date of the transaction, the amount, the memo in respect of that transaction as it appears in the MYOB accounts from the Stevens’ premises, the memo as it appears in the MYOB accounts from the accountants, bank accounts and any reference number for MYOB files. The schedule identified 67 transactions where the descriptors were quite vague and she could not determine the purpose of the transaction.
Ms Linklater stepped the jury through various entries in the schedules, identifying the figures shown there, the methodology, the source documents and explaining why certain entries were made. Other schedules were prepared dealing with other transactions, in much the same way. The schedules identified and analysed deposits from one company to another, entity loans, depositor details, bank locations, and many more details concerned in her analysis.
Ms Linklater also dealt with some specific deposits and was able to demonstrate that the analysis could show a source for them. She also identified cash withdrawals by Stevens which, over the period 1 July 2007 to 4 February 2009, totalled $361,809.94.[159]
[159]AB 1337.
Exhibit 107 was the schedule produced by Ms Linklater, which was a summary of all the information that she had given to the Court. The total of all transactions for which she was unable to determine a source, was $1,569,192.15.[160] If one takes the figure for cash withdrawals out ($361,809.94), the total of the unsourced transactions was $1,207,382.21.[161]
[160]AB 1338.
[161]AB 1338.
She identified the documents relating to the $100,000 which Mr Szczepanski had retrieved in Western Australia. That consisted of an invoice to Attitude Racing for an amount of $100,000, less a deposit of $10,000.[162]
[162]AB 1339-1340.

She was unable to find YBS’s name in any of the books of account, or any of her records. There was, however, one reference to “P” in the documents concerning cash cheques. That was a cash cheque for about $175,000 with the reference “Cash P”. That particular item was excluded from the unsourced income figures, because she was aware that Stevens had given YBS $175,000 (approximately) towards the purchase of a house.[163]
[163]AB 1340.
In cross-examination Ms Linklater conceded that she had not conducted an audit of the accounts. She also said that she did not, as part of the investigation, work out what sort of business Stevens was conducting, how many trucks took part, how many race cars, and so forth. She also accepted that the turnover of the businesses associated with Stevens was, in the 2007/2008 financial year, in the millions.[164]
[164]AB 1351.
In the course of cross-examination, Ms Linklater identified some entries in journals which she described as “very unusual” and reflecting a “very unusual transaction”.[165] What she was referring to were entries which purported to move money from directors’ loans to income. It was unusual “because it’s reducing a liability and, all of a sudden, making an income”.[166]
[165]AB 1364.
[166]AB 1364.
She also referred to that particular entry in the accountant’s MYOB version which said “Brett said make it up??” In her view that entry signified that the equivalent entry in the accountant’s version was “FD”. Ms Linklater’s view was that it signified that the Stevens’ accounts has been altered.[167]
[167]AB 1365.
Ms Linklater agreed that her investigations revealed that Stevens obtained loans from non-bank lenders. She was taken to about five transactions, totalling approximately $1million, and agreed that they were not unsourced funds because the source could be identified.[168]
[168]AB 1372.
Ms Linklater agreed that she had not looked at the sponsorship agreements that Stevens had, nor was she able to note which company was associated with which merchandise.[169] She agreed she had no knowledge of the actual sponsorship agreements, as she only focussed on funds coming into a bank account. She said that the fact that some entries were for merchandise did not cause her to explore what the merchandise agreement was, what he was selling, when he was selling it and how often, because that was not the purpose of the analysis she was conducting.[170]
[169]AB 1375.
[170]AB 1375.
Admissions
Formal admissions were made: Exhibit 111. They were to the effect that YBS was sentenced on 13 July 2010 to one count of possession of a dangerous drug, at which time he was sentenced to 12 months imprisonment, suspended after serving 53 days. Further, the sentencing judge stated that but for undertaking to cooperate with law enforcement agencies (pursuant to s 13A of the Penalties and Sentences Act 1992), a sentence of 18 months imprisonment suspended after four months would have been imposed.
The other admission was that on 3 May 2007, Brown was charged with possession of 20,000 tablets of ecstasy (MDMA), the offence having happened on 19 April 2007.
Evidence of Stevens
Stevens’ evidence included a history of his involvement in businesses concerning the sale of second hand Harley-Davidson motorbikes, drag-racing cars and drag-racing bikes. He detailed how he started by selling a number of second hand Harley-Davidson motorbikes, progressing to drag-racing using motorbikes, until eventually he conducted a large racing enterprise with multiple sponsors bringing him about $2million per year. In addition to that, he received product from the sponsors which he estimated at well over $1million per year.
Stevens ran his operation from his house at Narangba. In the period in question, between July 2007 and February 2009, he attended a number of race meetings and other events where his racing bikes and racing cars would be shown. He estimated that he would attend about 12 large race meetings or substantial events, to which all of his racing vehicles would be taken. That involved five B-Double semitrailers to take the various cars and bikes and merchandise.
Stevens gave evidence of his other businesses, namely a tattoo shop and a transport company which had a fleet of about 15 trucks. In addition, he operated a business whereby he would build race vehicles for others, at a cost of around $350,000 for a car, and about $120,000 to $140,000 for a bike. At its height, his businesses employed about 30 to 40 people, he said, and for that purpose their employment was through a separate company, Brett Stevens Employment.
He said that in 2007, with the rapid expansion of his race team, he became asset rich but cash poor. He neglected the businesses. He paid more attention to the race team aspect of his businesses, and neglected the trucking business. He said he got a taxation bill for $800,000, at about the same time as work available through his trucking business began to slow because major projects had died off. As a consequence, he sought finance through standard sources, then turned to non-bank sources when that was not successful.
In that context he borrowed from his father ($590,000) and a person called Hocking ($395,000). In addition he borrowed money from Tesic. That finance arrangement was for him to borrow $300,000 in cash and repay it in four months with interest. His evidence was that the interest component was to be satisfied by Stevens’ building a “rolling chassis” for a race car. The other unusual aspect of the Tesic transaction was that he had to make four or five separate trips to Sydney to collect the total amount.[171]
[171]AB 1402.
Another non-standard finance source was arranged through a person called “Dessman”, who was a friend of one of his staff members. That involved Stevens flying to Melbourne to negotiate with a company called State Securities. He was looking to borrow $500,000, and to repay in six months with an additional $100,000 interest.[172]
[172]AB 1403.
Stevens said that eventually he made the decision to retire because rumours were being spread about him. He said he made the decision to retire during a visit to a friend of his (Ashelford, or “Single”) on a trip to Perth on 28 and 29 October 2008.[173]
[173]AB 1404.
In his evidence he detailed how his businesses sold merchandise and souvenirs when they were at race meetings and other events. Stevens said he played no role in the disposition of the cash they received from such sales, that being looked after by his wife. Further, he did not have any role to play in the entry of data in MYOB, or in paying bills, or in conducting any banking.[174]
[174]AB 1416.
Stevens’ evidence about the loan from Tesic was that the agreement did not proceed as planned. Tesic decided he did not want the racing car and asked for his $400,000 back. Stevens said that the altercation between he and Tesic, seen on the intercept videos, consisted of Tesic trying to stab him in the neck with something he had picked up off a table, either a knife or fork. He said it was in that context that he received a text message shortly after that, about Tesic wanting his “400” back (meaning $400,000).[175]
[175]AB 1418-1419.
Stevens denied meeting YBS in the way YBS said. His evidence was that YBS wanted a drag-racing car built for him. The particular type was debated and eventually Stevens produced a quote for the job. YBS made payments under the arrangement, totalling $220,000. At one point YBS said that his girlfriend was not happy with him spending all his money on a drag-racing car, that he (YBS) had invested in a Low Doc loan and “needed some … proof or evidence or something that he had the deposit that wasn’t money that he’d borrowed for the deposit …”[176]. That was the context, according to Stevens, in which Stevens provided him with a statutory declaration (Exhibit 2). Stevens said that when he provided the statutory declaration he did not expect to actually have to part with the money.[177]
[176]AB 1421.
[177]AB 1420-1422.
Contrary to his expectation, Stevens paid $175,000 approximately to YBS. Just how that came about was not really explained. He said:
“I couldn’t really say no, because he’d given me over $220,000. So, in fact, it was his own money.”[178]
Stevens kept the difference between that sum and $220,000.
[178]AB 1422.
As to the first time they met, Stevens’ evidence was that YBS simply turned up at the Western Sydney International Dragway, and it was not as a consequence of being invited down by Stevens. Stevens denied knowing he was coming or spending any time with him, and denied providing him with a package to take back to Brisbane. He also denied ever asking YBS to travel to Sydney to collect a package on his behalf, or giving him a suitcase full of powder.[179]
[179]AB 1423.
Stevens was asked in his evidence-in-chief about the occasion on 20 March 2008 when he was seen in a car with YBS and YBS’s twin brother, driving slowly in the area of Chermside and Wavell Heights. The car was intercepted by police because it was driving suspiciously slowly through the back streets of Chermside and Wavell Heights.[180] He said he had no recollection of the event, but did not dispute that it was him in the car. He speculated that he might have been looking for Brown because he “wasn’t real happy with him”.[181]
[180]AB 1298.
[181]AB 1424.
Stevens was asked about a meeting between himself, YBS and YBT, after YBS had been arrested. He said YBS told him the police wanted to know why he (Stevens) had given him money for the deposit on his unit. Stevens’ response was:
“[W]ell, tell the truth about it. Don’t get me wrapped up in your shit … I probably said I’d kill him if he did.”[182]
[182]AB 1425.
Stevens denied any involvement of the production or supply of ecstasy tablets or any involvement in any drugs whatsoever.
In relation to Brown, Stevens said that he met him through YBS at about the same time he met Heilbronn. He said that he discovered at one point that Brown had his (Stevens’) utility. He described the encounter in this way:
“By accident I saw him walking down a road near the Eagle Farm Racecourse … [a]nd pulled up and got out and confronted him because I was told he had my ute … [a]nd Brown got defensive and was being smart … [a]nd pushed me. So I punched him in the head, knocked him out.”[183]
[183]AB 1427.
Stevens said his involvement with Heilbronn was limited to lending him $25,000. He said this was simply to help him out as he had “got himself in a bind”.[184] Stevens said he lent $25,000 and Heilbronn was to pay back $35,000 over a couple of months.
[184]AB 1430.
Stevens said he met Philip Main and Teymar Lewis who were involved or working for somebody (he did not know who), who had dealings with YBS. He said Main and Lewis “had purchased a large amount of pills from YBS that, apparently, weren’t what they were supposed to be and when they approached YBS, TBS told him that [they] were mine”.[185] He denied that the pills were his, saying that he had met Main and Lewis a few times and sorted it out, to the extent they became casual acquaintances or friends.
[185]AB 1432.
Stevens said that he did use prepaid phones, and explained that was because he was annoyed at how many times his normal phone would ring. In addition, he was then having an affair with his PA and did not want his wife reading the calls listed on the phone bill.[186] He said that if he smashed any phones it was only in anger and he “probably had four or five drawers full of them at home”.[187] He denied ever telling Krystal Carroll that he smashed a phone or phones in order to hide the SIM number or serial number on the phone.
[186]AB 1432-1433.
[187]AB 1433.
Stevens said that as a result of the violent altercation with Tesic, he tried to pay back $200,000. That cash was intercepted by police on 24 August 2008, six days after the altercation with Tesic. Stevens explained where the money came from and why it was paid in cash:
“Where did you get the $200,000 from?---We would have had – may have had some of it at home from – left from merchandise money. I borrowed money. I just got it from wherever I could to get that amount together.
Right. And why cash? Why did you want to give Ivan Tesic - - -?---Well he gave it to me in cash.”[188]
[188]AB 1436.
Stevens said that the intercepts which concerned a reference to “Shetland ponies” in conversation with Marshall was actually in relation to Shetland ponies as he wanted to buy one for his daughter.[189] He went on to explain that the conversation with Marshall seemed strange to him because Marshall had contacted him out of the blue. He did some investigations and discovered that Marshall did not own the property which he indicated that he owned. He then went on to explain what happened next:
[189]AB 1437.
“Yes? ---So that raised my suspicion. I think it was Nick Heilbronn that informed me that Marshall and Kieran Brown were setting me up.
Why? Did you get told why you might be set up?---They probably thought - - -
Well, did you get told why?---No, they – he just said they were – they’re setting you up.
And what did you have in your mind as being set up? What did that mean?---It was either to bash me or something worse or to rob me.
So you had that belief, that Marshall might have been involved with Kieran Brown, so what did you do then?---I played along with what he was doing for a while.
And does that explain that conversation that’s captured in the listening device, conversation 182?---Yes.
You talk in some detail there about pills and the capabilities of pill presses. Do you recall going into that detail?---I don’t recall those actual – that actual conversation, but I know I did speak about that sort of stuff. I was talking it up to try and get them to believe me, because I had my own idea.
And what happened after that conversation? Where did all of that go?---Nowhere. The last time I saw Marshall was at a fish and chips shop behind the Beachmere Tavern.
Yes?---When I got there, he gave me some fish and chips – that’s the white package.
So this is, again, something that was under surveillance? You and Mr - - -?---Yeah, and I don’t know what he told me. He definitely didn’t tell me he was leaving at that stage, but he disappeared after that.”[190]
[190]AB 1437-1438.
Stevens denied supplying Marshall with a pill press.
He also denied hearing YBS speak about being present when a pill press was set up, and denied testing it. He said that the utility that was then intercepted by New South Wales police on 20 January 2008 was, in fact, carrying racing car motors and engine parts in the crates on the back.[191]
[191]AB 1440-1442.
Stevens said that there were other motors that he had brought from the same source as those that were on the utility. He had expressed an interest in buying them and then four engines turned up at the workshop of a friend of his in Sydney. He said he could not remember how they got to Brisbane, but he tried to “move them on”, meaning sell them. He had not done much about that because he was busy and then pressure started about him paying for the engines. He then gave this evidence to explain the conversation between Wayne Newby and himself in the intercepts:
“Did you realise that someone was in partnership with Eddie[192] in relation to these motors?---Not at all.
Did you later realise?---Yes.
How did you realise that?---When his partner went into Wayne’s workshop and stuck a gun to the side of his head.
And that’s that conversation we can hear when Wayne Newby called you?---Yes.
So once that happened, what did you do?---Tried to sort it out as best I could and I went down and met with this so-called partner.
Yes?---Made arrangements to pay the money.”[193]
[192]Identified as a mate of Wayne Newby, a person known to Stevens.
[193]AB 1443.
Stevens said that the four engines were never unpacked, but just stacked on a pallet. He ended up giving those motors to Heilbronn, to help him. Stevens’ idea was that Heilbronn could sell them at a profit and pay Stevens back. However, that did not happen.[194]
[194]AB 1444.
As to Szczepanski’s trip to Western Australia, Stevens said that it was in relation to the purchase of five prime mover trucks.[195] Stevens was “acting as a middle man” because some of the persons in the arrangement were from the motorcycle club, the Bandidos. His evidence was he and Single (Ashelford) had some previous involvement with motorcycle clubs and did not get on with the other persons. It was in that context that Stevens referred to a “slopey-eyed guy” in one of the intercept phone calls.
[195]AB 1449.
Szczepanski’s trip to Western Australia was simply to collect money that was being paid for the sale of a bike. Stevens asked Szczepanski if he would fly over and pick up the money for him and come back.[196] Stevens denied that he instructed Szczepanski to use a public phone or a phone box rather than his mobile phone.[197]
[196]AB 1450.
[197]AB 1450.
Stevens explained that the conversation recorded between he and Krystal Carroll at the Watermark Hotel was, in fact, him simply referring to an arrangement for the sale of trucks. The reference to “you know how I told you he owes me money”, was to Heilbronn. The reference to “his mate’s got something”, was a reference to a person called Bruce Kong, a financier who could do the finance. The reference to “I know someone that wants that and then I’ve got to put them together”, was to him (Stevens) acting as a middle man and getting a commission.[198]
[198]AB 1455.
Cross-examination of Stevens
In cross-examination Stevens said that of all the telephone intercepts and text messages, only one or two involved drugs. One of them involved Kevin Marshall and the other Heilbronn.[199] He maintained that none of the meetings that were arranged in those calls and texts, and none of the meetings that were seen in recorded videos, related to drugs.
[199]AB 1458.
He said that apart from his normal phone, he used four or five different mobile phones, and a public phone on very rare occasions.[200]
[200]AB 1458.
In relation to the occasion when Szczepanski went to Perth to pick up $100,000 from Ashelford, Stevens explained that Ashelford rang him and asked him if he could get someone to pick it up: “he was paying cash, and … he rang me and asked me if I could get someone to pick it up, because he couldn’t get there”.[201] He said it did not occur to him as being odd that he wanted to pay in cash, as they dealt in cash a lot. He said that it was for the purpose of purchasing a motorbike, and he was not interested in the source of funds or the nature or identities of the syndicate which Ashelford told him was behind the payment.[202]
[201]AB 1459.
[202]AB 1460.
Stevens agreed that he had many meetings of short duration, but that was the way he did business. He denied that he talked in coded terms on the telephone and said that he did not like doing business on the phone. As for the phone calls where meetings were arranged, but nothing was discussed on the telephone about what the meeting was concerning, he explained that that was because the people he was speaking to knew what was being spoken about.[203]
[203]AB 1461.
Stevens could not explain why the phone with the number ending in 775, used by him, was registered in the name of John Browning at Lismore. The best he could offer was that it may have been a phone that one of his truck drivers left in a truck, though he could not remember the name John Browning. Nor could he remember the phone number of the phone ending in 626 or why it was registered in the name of Ralph Murphy at Beenleigh. Similarly, he had no explanation for why the phone ending in the number 987 and used by him was registered in the name of Adrian Welsh at Beenleigh.[204]
[204]AB 1463.

I agree with the reasons given by Atkinson J in concluding that the application for leave to appeal against sentence should be refused.
I wish to add only something to what her Honour has said about the argument of a disparity between this sentence and those imposed upon co‑offenders. At the sentencing hearing the prosecutor tendered a schedule entitled “Associated Offender Sentences”. It contained details of the sentences imposed upon offenders about whom there had been some evidence in the trial. When the prosecutor tendered this schedule, he described it as a list of “people arrested and charged with various offences in the course of the operation”. He did not suggest that they were co‑offenders or that their sentences were otherwise relevant, except for Brown and Heilbronn. In turn the appellant’s counsel addressed only the cases of those two and did not suggest that even those cases had a particular importance in the sentencing of the applicant. Referring to the sentence of Brown, the applicant’s counsel said that it was “difficult to try and dovetail where the offending for which he was punished … links with the offending my client’s about to be punished for, but nonetheless it is relevant so far as a comparative goes”. He said that “Heilbronn was involved at least in part of what Mr Stevens is to be sentenced for today”.
In the written submissions of senior counsel for the appellant in this Court, it is now contended that the schedule of associated offender sentences “demonstrates that the sentences imposed on all other persons associated with the criminality that was considered in the Appellant’s sentence [were] markedly lower sentences”. That is a submission which could not be fairly considered in this Court. It could not be considered without an understanding, in each case, of the relationship between that person’s offending and the appellant’s offending, an understanding which would be necessary to consider whether the other sentence was relevant and if so, whether there was a disparity of sentencing. Because this argument was not made to the sentencing judge, this Court does not have findings of fact in that respect.
Orders
I would order that the appeal against conviction be dismissed and the application for leave to appeal against sentence be refused.
ATKINSON J: I have had the advantage of reading the draft reasons of my colleagues for dismissing the appeal against conviction. Morrison JA has set out in detail the evidence given during this long trial. For the reasons given by Morrison and McMurdo JJA, I too am of the view that there was ample evidence by which the jury was entitled to be satisfied beyond reasonable doubt of the appellant’s guilt and that therefore the appeal against conviction should be dismissed.
I turn now to the application for leave to appeal against the sentence imposed.
The appellant was sentenced to a term of 13 years imprisonment on count 1, that is carrying on the business of unlawfully trafficking in dangerous drugs between 1 August 2007 and 4 February 2009. He was convicted but not further punished on the count of producing a dangerous drug contrary to s 8 of the Drugs Misuse Act 1986. The only ground of appeal against sentence is that the sentence is manifestly excessive.
The applicant’s submissions
The applicant submitted that the sentence is manifestly excessive, firstly, when compared to the sentences imposed on the co-offenders and, secondly, when compared to the sentences imposed in other unrelated cases for similar or more serious criminal offending.
In support of his argument that the sentence was excessive when one compares it with the sentence imposed upon co-offenders, the applicant referred in particular to the sentences imposed upon Vlatko Tesic and Nicholas Heilbronn and Kieran Brown. With regard to the argument that the sentence imposed was manifestly excessive with regard to sentences imposed upon other similar or more serious offenders the applicant referred to the authorities of R v Jenkins, Rollason and Brophy[367] and R v Barker.[368]
[367][2008] QCA 369.
[368][2015] QCA 215.
The sentence imposed
There was no complaint about the facts on which the learned sentencing judge based his conclusions as to the applicant’s offending. With regard to his trafficking activities, the learned sentencing judge said that the offending conduct and its scope was somewhat difficult to define. The prosecution case was that the applicant was the organiser of a substantial trafficking operation and the conviction by the jury involved, as the judge found, substantial acceptance of that proposition.
The production offence, count 2 on the indictment, was an example of that. That conduct occurred around the end of January 2008 where the applicant organised the availability of a pill press at McDowell, arranged for materials to be available to be used in drug production, supervised the activities of those people, being Kieran Brown and Nicholas Heilbronn who would carry out the drug production, and then arranged the sale of the pills. There were a number of indicators that this was a large scale operation including the presence of 60 kilograms of lactose at premises at McDowall which was sufficient to produce more than 300,000 pills. There was evidence of pill presses at two other locations, two in Broadbeach Waters and two at Red Hill. At the Broadbeach Waters address some five kilograms of powder and pills were located. The materials contained the equivalent of 100 grams of pure MDMA.
The learned sentencing judge concluded that the jury’s verdict carried with it a finding that the applicant was responsible for the setting up of the pill presses at those premises and he had the ultimate control of their use. The inference to be drawn was that those pill presses were to be put to use for the production of MDMA tablets at each of those locations although the evidence did not make it possible to find the extent to which they were used. His Honour held that although the evidence did not directly demonstrate that the applicant was responsible for obtaining the MDMA and other materials for the production of MDMA tablets at the Broadbeach Waters and Red Hill addresses, however, given his relationship with those more directly involved with those premises and the pill presses there, in particular Heilbronn, it seemed likely that the applicant played a significant role in obtaining MDMA and other materials, although there is no satisfactory evidence to show the extent to which that occurred.
There were, his Honour observed, two types of pill press involved. There were pill presses at McDowall and at Broadbeach Waters that could produce either 5,000 or 10,000 pills an hour. The evidence accepted by the jury strongly suggested that at least some of the pills to be produced were subsequently to be sold under the direction of the applicant.
The learned sentencing judge referred to the level of YBS’s engagement in the sale of pills. He concluded that on YBS’s evidence he sold several hundred thousand pills which was indicative of the level of selling in which he engaged under the direction of the applicant. The evidence showed a relationship between YBS and the applicant probably from about the middle of 2007 when YBS brought drugs back from Sydney for the defendant to the months prior to January 2008 when the pill press was set up at McDowall, such that the applicant gave YBS $176,000 for the purchase of a property in December 2007.
The evidence suggested that substantial drug dealing had occurred after the arrival of the pill press in January 2008. There was a conversation in August 2008 between the applicant and a Mr Marshall where the applicant said he could move about 20,000 pills a week. The evidence led the judge to conclude that the applicant had a number of people working for him at that time to assist in the production and distribution of MDMA pills. The learned sentencing judge referred to difficulties in the production of MDMA in about October 2008.
The learned sentencing judge referred to three occasions when a person who had an association with the applicant was intercepted by police carrying a large quantity of cash. Of these, his Honour said he was satisfied that the money the subject of the last two police interceptions, the first an amount of $110,000 carried by a Mr Russell Kempton, and the second, an amount of $99,700, which one of the applicant’s employees, a Mr Luke Szczepanski, collected from an associate of the applicant in Western Australia, was drug related money. They also showed that the applicant’s drug related activities extended to Western Australia but did not otherwise add a great deal of additional light on the nature and scope of his operations beyond demonstrating that the trafficking business “operated at a rather high level”.
So far as the $1.2million worth of unsourced income that the prosecution pointed to the learned sentencing judge found that on balance the better view was that not all of this money could be found to be the proceeds of trafficking but it was likely that a “non-insignificant proportion of it” was.
His Honour was not prepared to act on the evidence given by YBS that he saw the contents of a suitcase in which he said there were 25 kilograms of MDMA which he brought back from Sydney for the applicant. His Honour therefore acted very cautiously in the facts on which he relied for sentencing.
His conclusions were as follows:
“The picture therefore which emerges is that at least for a substantial part of the period to which the trafficking count relates, the defendant was, through others, selling very large quantities of MDMA. That was the case, it seems to me, from around the end of 2007 well into 2008 and possibly even to the middle of that year. After the middle of 2008, the evidence suggests the defendant was not selling as many pills; indeed the number was probably significantly lower. Nevertheless, he maintained an organisation with the capacity to sell similar quantities. He was trying to utilise that organisation and in particular was arranging for the setup of pill presses for that purpose, and attempting to source drugs. It seems unlikely that he would continue to do these things throughout the latter half of 2008 if he was entirely unsuccessful, but it is not possible to identify any particular success in these activities.”
His Honour found that the applicant was not a drug addict but engaged in trafficking in drugs for profit or commercial motives given that he had financial difficulties because of what had happened in his business operations. The applicant continued in spite of the fact that he was aware of police surveillance and plainly aware that his conduct was highly illegal. On more than one occasion he was prepared to engage in threats. The period of drug trafficking alleged in the indictment was some 18 months.
The applicant had been a successful racing rider and driver and had carried on a business manufacturing parts and racing vehicles as well as a relatively small tattooing business and a charter boat business. He had an earthmoving business which he built up to the point where he had 14 trucks and trailers but his heavy reliance on finance for their purchase may have been a significant contributor to his financial difficulties in the years leading up to his offending. He had built up properties in the northern suburbs of Brisbane for which he had been offered $14 million.
He had a minor and largely irrelevant criminal history.
The applicant had a number of factors which were taken into account in mitigating his sentence. The first was the absence of any offending since his arrest in February 2009. As a result of the publicity of his arrest, loans were called in and that resulted in the sale of assets with losses that might not otherwise have occurred. The applicant was unable to proceed with the production of a television show which he had commenced prior to his arrest. He had written a letter to the judge referring to the hardships his family had suffered and would suffer. However his Honour opined that that could not weigh greatly in determining the sentence. The learned sentencing judge also referred to evidence suggesting that he may have some health conditions including bipolar affective disorder and depression. His Honour said the major consideration in offending like this is the need for deterrence and the need to demonstrate that people who engage in trafficking activities will face very substantial terms of imprisonment.
Parity considerations
The leading High Court authority on the parity principle is Lowe v The Queen.[369] The basis for the principle is set out in the judgment of Mason J:[370]
“Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.”
[369](1984) 154 CLR 606; [1984] HCA 46.
[370]At 610-611.
The effect of this principle on sentence appeals was set out by Mason J at 613-614:
“… a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate.”
The parity principle was further explained by the High Court in Postiglione v The Queen[371] where Dawson and Gaudron JJ held:[372]
“The parity principle … is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowances should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’. If there is, the sentence in issue shall be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.” (citations omitted)[373]
[371](1997) 189 CLR 295; [1997] HCA 26.
[372]At 301-302.
[373]See also Green v The Queen (2011) 244 CLR 462.
It follows, as this Court held in R v Floyd:[374]
“[M]arked disparity in the sentences imposed upon an applicant for leave to appeal against sentence and his or her co-offenders is an appropriate ground of appeal where an applicant can demonstrate an objectively justifiable sense of grievance, whether the applicant was sentenced before or after his co-offenders.”
[374][2014] 1 Qd R 348; [2013] QCA 74 at 355 [34].
It is necessary, therefore, to consider in detail the sentence imposed upon the applicant’s co-offenders to determine whether there has been disparity in the sentences imposed and the reasons for any such disparity.
There were a number of offenders who were caught up in the drug trafficking business with which the applicant was associated. The material before the sentencing judge showed that whilst a number of them were sentenced for related offending, although with the exception of Heilbronn and perhaps Brown, they could not be considered co-offenders.
On 24 September 2009, Kristopher O’Campo was sentenced to one year and six months’ probation on four counts of possessing a dangerous drug and one count of possessing a thing being a pill press. On 16 April 2010 Vlatko Tesic was sentenced to eight years imprisonment on one count of trafficking in a dangerous drug from 4 June to 19 November 2008 and 12 counts of supplying a dangerous drug. On 13 July 2010, YBS was sentenced to 12 months imprisonment suspended for 15 months after serving 53 days for possessing dangerous drugs. As has been noted, his sentence was affected by co-operation given under s 13A of the Penalties and Sentences Act. On 3 July 2012 Shaun Beechey and Ellie Khoury were charged jointly with a number of counts the most serious of which was producing a dangerous drug exceeding two grams between 7 August and 18 October 2008. Beechey was sentenced to four years imprisonment with a parole eligibility date after he had served one year and Khoury was sentenced to two and a half years imprisonment with parole eligibility after serving 12 months imprisonment.
On 5 July 2012 Mahan Gheisari and Allen Hirmiz were sentenced. In Gheisari’s case he was sentenced for producing a schedule 1 drug exceeding schedule 3 on or about 17 August 2008 and possessing a schedule 1 drug exceeding schedule 3 on the same date. Hirmiz was sentenced for producing a schedule 1 drug exceeding schedule 3 between 7 August and 18 October 2008 and permitting use of a place between 1 September and 18 October 2008. Gheisari was sentenced to 18 months imprisonment with a parole release date after serving five months and Hirmiz was sentenced to nine months imprisonment with an immediate parole release order. Filip Grbavac was sentenced on 13 November 2012 on one count of producing a dangerous drug to 15 months imprisonment wholly suspended for a period of 21 months.
As mentioned earlier the two who might be considered co-offenders were Nicholas Heilbronn and Kieran Brown.
Kieran Brown was sentenced on 10 December 2013[375] on one count of trafficking in dangerous drugs; one count of breaking and entering premises and of wilful damage; four counts of possessing a dangerous drug in excess of two grams; two counts of unlawful possession of a weapon; two counts of possessing instructions for producing a dangerous drug; three counts of possessing a thing for use in connection with producing a dangerous drug; two counts of possessing property obtained from trafficking; one count of possessing dangerous drugs; one count of producing a dangerous drug; one count of possessing a relevant thing; 11 counts of fraud; one count of possessing tainted property; one count of contravening a direction or requirement of a police officer; one count of possessing a relevant substance or thing; and one count of possessing or acquiring a restricted item. He was sentenced to nine years imprisonment with lesser concurrent sentences. His parole eligibility was after he had served four years. Two hundred days pre-sentence custody was considered but not declared.
[375]See R v Brown [2015] QCA 225.
The fraud offences were committed between September 2006 and November 2007. The drug offending occurred in a three week period between 18 April and 3 May 2007, a six week period from 10 October to 25 November 2008 whilst he was on bail and then a further six week period between 5 March and 24 April 2010 whilst he was on two bail undertakings.
On a further indictment he was charged with producing methylamphetamine between September 2010 and April 2012. Brown pleaded guilty, albeit on the date set for trial so it was a late plea. He had a minor and largely irrelevant criminal history. Brown was a drug user but his trafficking was commercially motivated. It can be seen that Brown and Stevens were co-offenders for only some of their offending. Where their offending coincided, Stevens’ offending was at a higher organisational level.

Heilbronn was sentenced on 22 September 2011. He was sentenced on one count of trafficking in a dangerous drug between 7 August 2008 and 18 October 2008; supplying a dangerous drug; producing a dangerous drug in excess of two grams; possessing a dangerous drug in excess of two grams; possessing a relevant thing; possessing things used in connection with producing a dangerous drug; possessing a dangerous drug; receiving tainted property with a circumstance of aggravation; possessing a dangerous drug; and four counts of possessing a dangerous drug; and one count of supplying relevant things. He was sentenced to eight years imprisonment with pre-sentence custody of 946 days declared as time served under that period of imprisonment. His parole eligibility date was 19 October 2011.
The learned sentencing judge said that in determining the appropriate sentence the relevant factors were these. It was a highly sophisticated operation of considerable magnitude. Whilst the trafficking period was of relatively short duration, a little over two months, Heilbronn’s conduct was persistent, including continuing to engage in that activity after being intercepted by police and placed on bail. The relevant mitigating factors were his relative youth – he was only 26 at the time of his offending – the fact that he had no relevant prior criminal history and had never previously served time in custody and that he had by the time of sentence served two years seven months in custody. He had a good employment history and had used his time in prison to work hard and rehabilitate himself. His involvement was at a wholesale level. Importantly in terms of parity Heilbronn entered a plea of guilty, was young and had demonstrated remorse and some rehabilitation while in custody. The period of his trafficking was shorter and he was not, unlike Stevens, the overall organiser.
The applicant was higher in the organisational chain than Heilbronn and Brown and carried on the business of unlawful trafficking in dangerous drugs for a longer period and had none of the mitigating factors of youth or a plea of guilty. It could not be said that there was an unjustifiable discrepancy in the sentence imposed on the applicant.
Manifest excess
As has been discussed, the parity principle is an example of the objective of consistency in sentencing. In Barbaro v The Queen[376] the High Court referred to the method by which this is to be achieved:
“As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect.”
[376](2014) 253 CLR 58 at 74.
This court should only interfere with a sentence on the ground of manifest excess only in circumstances where the departure from previous sentences for similar offending is such that the court concludes that there must have been some misapplication of principle by the sentencing judge. As the High Court recently observed in R v Pham:[377]
“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”
[377](2015) 256 CLR 550 at 559; [2015] HCA 39 at [28].
The applicant submitted that the sentences were manifestly excessive when compared to those in R v Jenkins, Rollason and Brophy[378] and R v Barker.[379]
[378][2008] QCA 369.
[379][2015] QCA 215.
In addition the respondent relied at sentence on R v Lowe [2004] QCA 398; R v Rodd ex parte A-G (Qld) [2008] QCA 341; R v Nabhan & Kostopoulos [2007] QCA 266; R v Markovski [2009] QCA 299; R v Feakes [2009] QCA 376; R v Johnson [2014] QCA 79 and R v McGinniss [2015] QCA 34.
On appeal, the respondent also relied on R v Gordon [2016] QCA 10 and R v Nguyen [2016] QCA 57.
The appellate decision of R v Jenkins, Rollason and Brophy is particularly useful in determining the level of sentence that was appropriate in this case. Brophy was convicted by a jury on one count of trafficking in MDMA and three counts of unlawfully supplying MDMA. Jenkins was convicted by the jury of one count of trafficking in MDMA and one count of unlawfully supplying MDMA. Rollason pleaded guilty to one count of unlawfully trafficking in MDMA. They planned to distribute approximately 500,000 tablets on the Gold Coast. Ninety thousand tablets were obtained from New South Wales on 20 October and 18 November 2004. A further 298,000 tablets were found in Sydney. The wholesale trafficking business involved about $8million worth of MDMA.
Brophy was the head of the Australian business and had authority over the distribution process. Under him was Rollason who was the “sales manager” of the business and aware of the full parameters of the trafficking. Rollason directed Jenkins as to the terms of distribution to dealers on the Gold Coast. Rollason had authority to set and vary prices. Jenkins had a network of contacts that were exploited in the attempted sales of stock.
Brophy was sentenced to 17 years imprisonment for trafficking in MDMA and convicted but not further punished in relation to the supply count. That sentence was upheld on appeal. Rollason was sentenced to 12 years imprisonment to be served cumulatively upon a sentence of 10 years imprisonment that had been imposed in the Supreme Court of Brisbane in November 1998. On appeal that sentence was set aside and substituted by an order that he be in prison for 11 years to account for an error in the material submitted to the sentencing judge. Jenkins was sentenced to 10 years imprisonment on the trafficking count and was convicted but not further punished in relation to the supply count. Serious violent offence declarations were made with regard to each of Brophy, Rollason and Jenkins.
It can be seen that a sentence of 13 years imprisonment for Stevens sits comfortably within the sentences imposed upon Brophy and Rollason and was appropriate given Stevens’ role in this drug trafficking business. Brophy’s trafficking occurred in a relatively short period of about two months and Rollason’s sentence took account of his plea of guilty.
The applicant in R v Barker[380] was sentenced to 10 years imprisonment after pleading guilty to trafficking in the dangerous drug methylamphetamine and three lesser drug offences. He was given lesser concurrent sentences on the other counts. Barker engaged in a 10 month period of trafficking from 1 July 2008 to 23 April 2009. Almost $1,000,000 in cash was found hidden in the applicant’s premises which the sentencing judge concluded was derived from drug trafficking. The applicant was a wholesale supplier of drugs to four individuals for commercial gain over a period of nearly 10 months. His plea of guilty was considered to be a timely plea. He was a person of otherwise good character that was not drug dependent and the only motivation was financial gain. There was no suggestion of violence or threats.
[380][2015] QCA 215.
The applicant in R v Gordon was sentenced to concurrent periods of eight years imprisonment for trafficking in cannabis and 10 years imprisonment with a serious violent offence declaration for trafficking in methylamphetamine. He was sentenced to a further concurrent period of two years imprisonment for possessing a pill press between 8 and 14 August 2010. He was sentenced to lesser concurrent periods of imprisonment for other drug related and other offences. Whilst the period of trafficking is longer than that involved in this case, he was only 21 years old when the trafficking activities for which he was sentenced began. He pleaded guilty.
In R v Nguyen the applicant was found guilty by a jury of one count of unlawfully trafficking in heroin between 14 February and 22 June 2011 and one count of possessing a sum of money obtained from trafficking. He was sentenced to 12 years and six months imprisonment on the trafficking count. He was sentenced on the basis that he had trafficked over a four month period acting both as a wholesaler and a street level dealer. The applicant was sentenced on the basis that he had a long standing medical condition and was a user of heroin. A sentence of 12 and a half years imprisonment was not found to be manifestly excessive on appeal.
When reference is had to an analysis of comparable decisions, it could not be concluded that the sentence imposed in this case was manifestly excessive.
I would refuse the application for leave to appeal against sentence.

CITATION:	R v Stevens [2017] QCA 61
PARTIES:	R v STEVENS, Brett Raymond (appellant/applicant)
FILE NO/S:	CA No 212 of 2015 CA No 305 of 2015 SC No 686 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 2 September 2015; Date of Sentence: 20 November 2015
DELIVERED ON:	11 April 2017
DELIVERED AT:	Brisbane
HEARING DATE:	16 September 2016
JUDGES:	Morrison and McMurdo JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of trafficking in a dangerous drug, producing a dangerous drug and supplying dangerous drugs after a 28 day trial – where the ground of appeal was that the jury’s verdict is unsupportable and against the weight of the evidence – where the appellant was producing, trafficking and supplying dangerous drugs with help from a number of persons – where the other persons gave evidence that the appellant owned a pill press and directed the drug operation – where one witness gave evidence to the Crime and Misconduct Commission – where the appellant argued that the witness’ evidence could not be accepted because the witness had reasons to reduce his own involvement in the trafficking scheme and his evidence was therefore incredible and unreliable – where the trial judge directed the jury that it would be dangerous to convict on the evidence of that person alone unless the jury found that it was supported by other independent evidence – where other evidence included cash, drugs and things used to produce drugs seized by police, recorded conversations and text messages – whether the verdicts were supported by other evidence – whether it was open to the jury to be satisfied beyond reasonable doubt, that the appellant was guilty CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was sentenced to 13 years imprisonment for carrying on the business of unlawfully trafficking dangerous drugs – where a conviction was recorded but there was no further punishment for the count of producing a dangerous drug – where the applicant submitted that the sentence is manifestly excessive when compared to sentences imposed on co-offenders, related offenders and in similar cases – where the applicant did not complain about the facts considered by the sentencing judge but contended that the sentencing judge erred in their application of the parity principle – where the respondent submitted that the applicant was higher in the organisational chain than related offenders – where the court should only interfere with a sentence where there has been a departure of principle by the sentencing judge – whether the sentence is comparable to those imposed on offenders in similar cases – whether the sentence is manifestly excessive Criminal Code (Qld), s 632(1) Penalties and Sentences Act 1992 (Qld), s 13A Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, followed Director of Public Prosecutions v Hester [1973] AC 296, cited Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, followed Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15, cited Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, followed M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, followed R v Baden‑Clay (2016) 90 ALJR 1013; [2016] HCA 35, followed R v Barker[2015] QCA 215, distinguished R v Floyd [2014] 1 Qd R 348; [2013] QCA 74, followed R v Gordon[2016] QCA 10, distinguished R v Jenkins, Rollason & Brophy[2008] QCA 369, followed R v Nguyen[2016] QCA 57, followed R v Pham (2015) 256 CLR 550; [2015] HCA 39, followed Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, followed
COUNSEL:	W Terracini SC, with E Nicolsen, for the appellant/applicant D C Boyle, with C W Wallis, for the respondent
SOLICITORS:	Archbold Legal for the appellant/applicant Department of Public Prosecutions (Queensland) for the respondent