R v Elfar & Golding [2017 ] QCA 170 PDF

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SUPREME COURT OF QUEENSLAND CITATION:

R v Elfar & Golding [2017] QCA 170

PARTIES:

In CA No 251 of 2015: R v ELFAR, Terrance (applicant) In CA No 252 of 2015: R v GOLDING, Simon Charles (applicant)

FILE NO/S:

CA No 251 of 2015 CA No 252 of 2015 SC No 864 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Applications

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 16 September 2015

DELIVERED ON:

11 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2017; 14 February 2017

JUDGES:

Gotterson and Morrison and McMurdo JJA Separate reasons for judgment of each member of the Court, Gotterson and Morrison JJA concurring as to the orders made, McMurdo JA dissenting

ORDERS:

1. In CA 251 of 2015, the application for leave to appeal against sentence is refused. 2. In CA 252 of 2015, the application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – PARITY BETWEEN CO-OFFENDERS – GENERAL PRINCIPLES – where the applicants were convicted of the importation into Australia of a commercial quantity of a border controlled drug, cocaine – where the applicant Elfar was sentenced to 30 years’ imprisonment with a non-parole period of 20 years – where the applicant Golding was also sentenced to 30 years’ imprisonment but with a non-parole period of 18 years – where another participant in the import venture, Sander, was sentenced to 30 years’ imprisonment with a nonparole period of 16 years – where Elfar and Golding seek leave to appeal against their sentences on the grounds that they are

2 manifestly excessive and do not reflect the principle of parity between all three co-offenders – where the importation was a complex, well planned, international operation – where Elfar and Golding sailed a yacht (the Mayhem) to meet another vessel (the Edelweiss) to exchange 400 kilograms of cocaine – where Elfar was in control of the Mayhem and Sander was captain of the Edelweiss – where Elfar and Golding moored at a marina in Queensland and were arrested by the Australian Federal Police (AFP) – where the Crown submitted that Elfar’s participation was more serious than that of Golding and Sander because Elfar provided the Mayhem and communicated with the Edelweiss in the months leading up to the importation – where the applicants submitted that there were no material differences between the offenders’ criminal histories – where the applicants submitted that there was a lack of parity with the sentence in relation to Sander – where the learned sentencing judge found that Elfar, and to a lesser extent, Golding, had both participated in planning and executing the importation – where both applicants knew the scale of the importation but lacked insight into the seriousness of the offending – where Sander was engaged because of his seamanship skills and had no criminal history – where the learned sentencing judge had found that while all offenders were motivated by financial gain, only Sander cooperated with the administration of justice during the trial by minimising delay and by not calling unnecessary evidence – where in addition, Sander had a number of character references – whether the learned sentencing judge exercised the sentencing discretion in accordance with the parity principle CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where both parties conceded that the breadth of the sentencing discretion in cases of this kind is wide – where the applicant submitted that R v Thompson [2007] NSWCCA 83 supported a head sentence of 20, rather than 30 years’ imprisonment – where the Crown advanced a number of cases which demonstrate the range of sentences in cases of this kind extends well beyond 20 years’ imprisonment – whether in all the circumstances, the sentences are manifestly excessive Criminal Code (Cth), s 11.2A, s 307.1 AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied R v Campillo Vaquere [2004] NSWCCA 271, cited R v Elfar; R v Golding; R v Sander [2017] QCA 149, related R v Ellison [2012] QCA 113, applied R v Flavel [2001] NSWCCA 227, cited

3 R v Gonzalez-Betes [2001] NSWCCA 226, cited R v Jackson (2003) 138 A Crim R 148; [2003] QCA 31, cited R v Lam [2009] VSCA 37, cited R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238, considered R v Tait and Bartley (1979) 46 FLR 386, considered Teng v R (2009) 22 VR 706; [2009] VSCA 148, cited R v Tout [2012] QCA 296, considered R v Vo (2000) 118 A Crim R 320; [2000] NSWCCA 440, cited Thompson v The Queen [2007] NSWCCA 83, distinguished Wong v The Queen (2001) 207 CLR 584, [2001] HCA 64, considered COUNSEL:

A J Edwards for the applicants G R Rice QC, with R J Sharp, for the respondent

SOLICITORS:

Ashkan Tai Lawyers for the applicants Director of Public Prosecutions (Commonwealth) for the respondent

[1]

GOTTERSON JA: I agree with the orders proposed by Morrison JA and with the reasons given by his Honour.

[2]

MORRISON JA: Elfar and Golding sailed a boat from Port Macquarie out to the Coral Sea. There, by arrangement, they met another vessel which carried about 400 kilograms of impure cocaine, of which 283 kilograms was pure cocaine.

[3]

The cocaine was transferred to their boat and they sailed back to Scarborough in Queensland. There, again by arrangement, they met two other men and transferred over 45 kilograms to a car driven by one of the other men (Triplett). As the car was being driven away police arrested them. The balance of the cocaine was found on the boat.

[4]

Elfar and Golding were convicted of an offence of the importation into Australia of a commercial quantity of a border controlled drug, namely cocaine, in contravention of s 11.2A(1) and (2) and s 307.1(1) of the Criminal Code 1995 (Cth).

[5]

Each was sentenced to a term of 30 years’ imprisonment, but different non-parole periods were fixed: Elfar’s period was 20 years and Golding’s period was 18 years. Another participant in the venture, Sander, was also convicted and received a 30 year sentence but a non-parole period of 16 years.

[6]

On 11 July 2017 the appeals against their convictions were dismissed. 1

[7]

Elfar and Golding seek leave to appeal against their sentences. Sander does no t.

[8]

The grounds of challenge are: (a)

that the sentences are manifestly excessive;

(b)

error in failing to properly reflect parity issues.

Factual background of the offending [9]

1 2 3

The relevant facts are set out in detail in Elfar and Golding.2 It is convenient to adopt them here, omitting some matters relevant only to the conviction appeals. In addition some facts as found for the purpose of sentencing have been included in what follows.3 R v Elfar; R v Golding [2017] QCA 149. ( Elfar and Golding) Elfar and Golding at [6]-[18]. The additional facts are drawn from the remarks at AB 2336-2338.

4 [10]

On 3 August 2010, a boat called the Edelweiss sailed from Panama City, south to the coast of Ecuador, and then west across the Pacific Ocean. By 8 October 2010, it was about 320 nautical miles off the Australian east coast. It was manned by two men, Sander and Serna. Sander was the captain.

[11]

On 4 October 2010 a vessel named the Mayhem of Eden,4 under the control of Elfar and with Golding aboard, left Port Macquarie Marina where it had been moored. Elfar had often been on the Mayhem when it was moored at Burraneer Bay in September 2010, and arranged and paid for work done on it. Elfar had paid for mooring and fuel at the Port Macquarie Marina. The Mayhem next made landfall on 12 October, at Scarborough marina.

[12]

On 7 October 2010, the Australian Federal Police ( AFP) received information that a vessel carrying a large quantity of narcotics was sailing towards Australia in order to meet another vessel, to which it would transfer its cargo at sea. The information was provided by the Drug Enforcement Agency ( DEA), a law enforcement agency of the United States government. The DEA informed the AFP that this rendezvous was expected to occur at a position, defined by certain coordinates, on the evening of 8 October 2010.

[13]

On the basis of that information, the AFP, together with the Australian Customs and Border Protection Service, conducted surveillance flights in the region of the anticipated rendezvous. On the night of 8 October 2010, one of these aircraft identified two vessels approximately two miles apart and sailing towards each other. At about 2.00 am 9 October 2010, an aircraft relocated the two vessels, which were then about a quarter of a nautical mile apart and not far from where they had been seen earlier. Digital imagery identified one of the vessels as the Mayhem.

[14]

A large amount of cocaine was transferred from the Edelweiss to the Mayhem, no doubt using the tender attached to the Mayhem. Elfar and Golding were involved in that transfer.

[15]

The location of the Mayhem was tracked by the AFP and other agencies as it sailed towards the Australian coast until, early on the morning of 12 October 2010, it was observed entering Moreton Bay and mooring off the Scarborough Marina.

[16]

On the morning of 12 October 2010, Elfar and Golding were seen by AFP and Customs officers leaving the Mayhem in a tender to go to the marina, where they booked a berth. The Mayhem entered the Scarborough boat harbour and tied up at the berth. Half an hour later, Elfar and Golding were observed as they disembarked. Each was carrying a large, heavy duffel bag. They left the marina by taxi, after placing the two bags in the boot.

[17]

The taxi took them to the Kippa Ring Village Shopping Centre where they arrived about five minutes later. They walked into the centre with the duffel bags. Golding was seen by officers using a mobile phone and walking towards the exit of the shopping centre, while Elfar was at a table inside the centre with the two bags at his feet. A few minutes later, Golding was again seen using his phone and a few minutes after that, he returned to the table where Elfar was still seated. They were joined by a man called Triplett and another man called Mandas.

4

Referred to in these reasons as “the Mayhem”.

5 [18]

Triplett, together with Elfar and Golding who were carrying the duffel bags, walked towards the car park of the centre where Golding placed one bag in the back seat of Triplett’s car before sitting in the front passenger seat. The other bag was placed in the boot of the car. Elfar walked back to the shopping centre where, not long afterwards, he was arrested. Golding and Triplett drove away from the shopping centre in the car. It was a Toyota Corolla which had been hired by Triplett.

[19]

Two telephones were seized from Golding and from the driver’s side door of the Corolla. Both had been registered in false names in September 2010. The two phones were in contact with one another almost exclusively on 3 and 4 October, and then again on 11 and 12 October.

[20]

The Corolla was stopped by the AFP. The two men were arrested and the car was searched. An AFP officer removed the duffel bag from the boot. It was found to contain blocks of cocaine. The second duffel bag on the back seat was removed, searched and found to contain blocks of cocaine.

[21]

Each of the cocaine blocks found in the bag was comprised of several alternating layers of black rubber, clear plastic wrap and packing tape, inside which was a rectangular block of compressed white powder. The duffel bags in which they were contained were waterproof.

[22]

When the Mayhem was searched later that day, drugs were found in two cabins, in packages and bags of the same kind as those which had been taken by Elfar and Golding to Kippa Ring.

[23]

The bag in the boot of the Corolla contained 25 kilograms of cocaine and the bag on the car’s back seat was found to contain 20 kilograms of the drug. From the Mayhem, some 355 blocks of cocaine were seized, having a gross weight of 355.67 kilograms with a total pure weight of cocaine of 251.6 kilograms. The cocaine from the bags in the car and on the Mayhem was all of a similar nature. In total there was 400 kilograms of material containing 283 kilograms of pure cocaine.

[24]

On 13 October 2010, the Edelweiss was boarded by AFP and Customs officers. Sander and Serna were taken on board the Customs vessel and detained and the Edelweiss was taken in tow. There was evidence of phone calls between Golding and those on the Edelweiss.5 Submissions for the Crown

[25]

The Crown submitted that the learned sentencing judge expressly took parity into account. The greater sentence for Elfar was justified by his use of the Mayhem to implement the plan and the length of his involvement shown by satellite phone usage. Sander made a number of admissions in his case which, nonetheless, were required to be proven in the other cases. He had also cooperated, had character references and been a model prisoner.

[26]

The Crown produced a schedule of authorities dealing with large importations, 6 and submitted that reference to cases, such as R v Flavel,7 R v Gonzalez-Betes,8 R v Campillo

5 6 7 8

AB 2336 lines 31-39. AB 3190. [2001] NSWCCA 227. [2001] NSWCCA 226.

6 Vaquere,9 R v Jackson,10 R v Vo,11 Teng v R12 and Lam v R,13 justified the sentence imposed and the non-parole periods. [27]

R v Mandagi14 and R v Thompson15 were referred to in order to distinguish them, as in each the ultimate sentence was affected by the application of s 16G of the Crimes Act 1914 (Cth) (requiring sentences to be reduced, normally by one third, to take account of the absence of remissions) which had since been repealed. When that was factored in the start point in Thompson was 36 years, and 40 years in Mandagi.

[28]

The factors affecting parity were: (i) Elfar’s provision of the Mayhem; Sander did not own the Edelweiss; (ii) Elfar’s use of a satellite phone to communicate with the Edelweiss from as early as 26 June 2010, before it commenced its journey; (iii) Golding’s earliest involvement was use of the phone to communicate with Triplett from 7 September 2010; (iv) Sander’s admissions and conduct of the trial assisted the administration of justice, whereas nothing of that kind applied to Elfar and Golding. Submissions for Elfar and Golding

[29]

The thrust of the contention was that parity considerations evident from Postiglione v The Queen16 and R v Ellison17 were not adequately considered. As a result Elfar and Golding had a justifiable sense of grievance when compared to the sentence Sander received: (a)

Elfar’s non-parole period was 20 years, with 891 days declared as pre-sentence custody;

(b)

Golding’s non-parole period was 18 years, with 468 days declared; and

(c)

Sander received a non-parole period of 16 years, with 1,800 days declared.

[30]

There was no relevant difference in the criminalities and backgrounds of each, and there should have been no relevant differences in the sentences. Each of Elfar and Golding had minor and irrelevant criminal histories. Neither was young, with Elfar at 49 and Golding at 41. Sander was 45, with no criminal history and good references. To the extent that Sander was given the benefit of not “wasting the Court’s time” and giving some “minimal cooperation”, that was largely due to his Counsel and not him, and in any event was not of great moment in the 16 day trial.

[31]

Relying on Thompson v The Queen18 it was submitted that the sentences should have been 20 years with a non-parole period of 14 years.

[32]

During the hearing before this court Counsel for Elfar and Golding accepted the force of the Crown’s written submission19 that there were comparable cases which could

9

[2004] NSWCCA 271. (2003) 138 A Crim R 148. (2000) 118 A Crim R 320. (2009) 22 VR 206. (2009) 22 VR 206. [2002] NSWCCA 57. [2007] NSWCCA 83. (1997) 189 CLR 295; [1997] HCA 26. [2012] QCA 113. [2007] NSWCCA 83. Respondent’s outline paragraphs 11.1-11.7, referring to the sentence on Serna (25 years with a nonparole period of 13 years), and R v Vo (2000) 118 A Crim R 320, Teng v R; Lam v R (2009) 22 VR 206, R v Jackson (2003) 138 A Crim R 148, R v Flavel [2001] NSWCCA 227, R v Gonzales-Betes [2001] NSWCCA 226, R v Campillo Vaquere [2004] NSWCCA 271, R v Wangsaimas (1996) 133 FLR 272, R v Lee Vanit (1997) 190 CLR 378, and R v Mandagi [2002] NSWCCA 57.

10 11 12 13 14 15 16 17 18 19

7 justify the sentences imposed. He conceded that whilst Thompson was a more serious case which attracted a lower sentence than that for Elfar and Golding, there were less serious cases which had attracted higher sentences, reflecting the breadth of the sentencing discretion. It was submitted that, whilst he did not resile from the written outline, his real submission was that the Court would consider that there was a lack of parity with the sentence in relation to Sander. That position was made clearer as there was no dispute when the senior counsel for the Crown subsequently submitted that “I think my learned friend effectively conceded that the sentences imposed were within discretionary range”. Approach of the sentencing judge. [33]

The learned sentencing judge commenced her remarks by referring at some length to the relevant principles for sentencing for such a serious offence. That included her Honour’s citation of passages from Wong v The Queen,20 R v Tait and Bartley,21 R v Law,22 R v Stanbouli,23 R v Klein,24 and R v Nguyen; R v Pham.25

[34]

In addition her Honour recognised that she had to address the factors in s 16A and s 17A of the Crimes Act.

[35]

The learned sentencing judge characterised the offending conduct in a way that cannot be criticised, and was not criticised before this Court:26 “This was very serious offending, obviously undertaken purely for profit, of a very, very significant amount of a drug that would have caused great damage to the Australian community an activity which would have been, had it not been for information supplied by the Drug Enforcement Agency from the United States, very difficult to detect. Hence, this is very much a case where the fear of punishment should be weighed by those who attempted to engage in such activity and where punishment and deterrence are the primary considerations.”

[36]

Before dealing with the individual aspects of Elfar and Golding, the learned sentencing judge adverted to other features which showed the scale of the offending conduct. The amount imported was 140 times the level of a commercial quantity of drugs. The potential wholesale value per kilogram was $200,000, and therefore the importation had a total wholesale value of about $80 million, and a retail value estimated at $120 million.27

[37]

Further, the conduct was carried out in ways to try and avoid detection, and it required an expensive detection operation, utilising surveillance aircraft, a large intercept vessel and many teams of pol...