SUPREME COURT OF QUEENSLAND

CITATION:	R v Jacobs [2016] QCA 28	
PARTIES:	R
v
JACOBS, Mark
(applicant)	
FILE NO/S:	CA No 169 of 2015
SC No 711 of 2014
SC No 101 of 2015
SC No 107 of 2015	
DIVISION:	Court of Appeal	
PROCEEDING:	Sentence Application	
ORIGINATING COURT:	
Supreme Court at Brisbane – Date of Sentence: 1 July 2015	
DELIVERED ON:	16 February 2016	
DELIVERED AT:	Brisbane	
HEARING DATE:	4 February 2016	
JUDGES:	Fraser and Philip McMurdo JJA and Daubney J
Separate reasons of judgment for each member of the Court, each concurring as to the orders made	
ORDERS:	1.	Grant leave to appeal against the sentence imposed for Count 1 on the indictment numbered 101/15.
2.	Allow that appeal by setting aside the order that the appellant make restitution of $45,000 to Ronald Krause.
3.	Otherwise dismiss that appeal.
4.	Otherwise refuse the applications for leave to appeal against sentence.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant was sentenced on his plea of guilty to sixteen offences – where the applicant was sentenced to ten years imprisonment for trafficking methylamphetamine over an approximately eight month period – where the applicant says his instructions were to plead guilty only to trafficking over a four month period – where the evidence showed the applicant changed his instructions immediately before sentencing commenced – whether the applicant was sentenced on the admitted period of trafficking
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant was sentenced on his plea of guilty to sixteen offences – where the applicant was sentenced to ten years imprisonment for trafficking methylamphetamine and declared a serious violent offender – where the applicant’s co-offender was sentenced to three and a half years imprisonment on his plea of guilty to four counts of trafficking – where the applicant was also sentenced to concurrent eighteen month terms of imprisonment for procuring misconduct of a public officer to be served cumulatively upon the trafficking sentence – where the public officer received an eighteen month sentence wholly suspended – whether the applicant’s sentence offended the parity principle
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was sentenced on his plea of guilty to sixteen offences – where the applicant was ordered to make restitution to a victim – where the applicant has no means of satisfying the order – whether the learned sentencing judge erred in making the order
Penalties and Sentences Act 1992 (Qld), s 161A
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
R v Flint [2015] QCA 275, applied
R v Jacobs [1998] 1 Qd R 96; [1997] QCA 114, cited	
COUNSEL:	The applicant appeared on his own behalf
J Robson for the respondent	
SOLICITORS:	The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent	
[1]	FRASER JA:  I agree with the reasons for judgment of Philip McMurdo JA and the orders proposed by his Honour.
[2]	PHILIP McMURDO JA:  On 1 July 2015 the applicant was convicted, on his pleas of guilty, to some 16 offences.  Relevantly they included an offence of trafficking in methylamphetamine, for which he received a sentence of 10 years’ imprisonment, and two offences of procuring misconduct of a public officer, for which he received terms of 18 months’ imprisonment concurrent with each other but cumulative upon the 10 year term.  He applies for leave to appeal against those sentences.  He seeks an outcome by which the sentence for the trafficking offence is reduced and without a serious violent offence declaration and the sentences for procuring misconduct are not cumulative.
The applicant’s criminal history
[3]	The applicant was born in 1961 and was aged 50 at the time of the offences and 53 when sentenced.  In 1996 he was sentenced to 14 years’ imprisonment having pleaded guilty to trafficking in dangerous drugs including heroin and amphetamines over a period of almost three years between 1992 and 1995.  A total of 489 days was declared as pre-sentence custody.  Notwithstanding his plea of guilty, he appealed against that conviction.  The appeal was dismissed as was his application for leave to appeal against his sentence.  The court concluded that the sentence of 14 years was not manifestly excessive having regard to “the criminal history of the applicant, the extent and nature of his business in trafficking in dangerous drugs and his willingness to resort to violence if necessary to ensure that his business was conducted efficiently and profitably”.  The applicant was released on parole in October 2008 and before that year had passed, he had committed two offences of supplying dangerous drugs, involving large quantities of heroin.  His parole was revoked and he served the balance of his 14 year sentence.  For those two offences he was sentenced in April 2011 to terms of four years’ imprisonment, wholly suspended.
The 2015 sentences
[4]	The four indictments on which he was sentenced last July were as follows.  One charged him with nine offences:
•	trafficking in methylamphetamine (between 30 August 2011 and 24 April 2012)
•	producing methylamphetamine in excess of 200 grams (in April 2012)
•	possessing methylamphetamine in excess of 2 grams (in April 2012)
•	possessing heroin in excess of 2 grams (in April 2012)
•	possessing iodine (in April 2012)
•	receiving stolen property with a circumstance of aggravation on a date unknown (between October 2011 and April 2012)
•	receiving stolen property with a circumstance of aggravation on a date unknown (between February and April 2012)
•	procuring misconduct by a public officer (on 7 March 2012)
•	a further count of procuring misconduct by a public officer (on the same date).
The sentences now challenged were imposed for the first, eighth and ninth counts on that indictment.
[5]	There was a four count indictment charging him with
•	extortion (on various dates from October 2011 to May 2012)
•	burglary and stealing (in December 2011)
•	burglary and stealing (in January 2012)
•	burglary, by breaking, with violence and in company (in February 2012).
[6]	A further indictment charged him with extortion on a date unknown between January and the end of March 2012.  The fourth set of charges was that he breached the terms of his suspended sentences (imposed in April 2011) by these other offences.
[7]	The longest of the terms imposed was that of 10 years for the offence of trafficking which was a serious violent offence by the operation of s 161A of the Penalties and Sentences Act 1992 (Qld).  With the exception of the sentences for procuring misconduct by a public officer, the other terms imposed were less than the 10 year sentence and to be served concurrently with it.  He was required to serve the whole of the sentences which had been suspended in 2011 but again concurrently with the 10 year term.  The outcome was a period of imprisonment of 11 and a half years with an eligibility for parole after eight years and nine months.  A period from 23 April 2012 to 1 July 2015 was declared as pre‑sentence custody.
The period of trafficking
[8]	The applicant claims that he was sentenced upon the basis that the trafficking had occurred over approximately eight months to 24 April 2012 whereas, he says, he meant to admit trafficking over a period of about four months to that date.  Until shortly before the sentence hearing commenced, his instructions to his lawyers, recorded in writing, were to admit trafficking only within that period.  He was then saying that he should not be convicted of trafficking for a more extensive period than that for which a co-offender, a Mr Schaumberg, had been convicted and sentenced.  As late as about 10.40 am on the day of his sentence hearing, he signed a document addressed to his lawyers, entitled “Guilty Plea Instructions”, which unambiguously confined his proposed admission in that way.  This document referred to the fact that the indictment alleged trafficking between 30 August 2011 and 24 April 2012 and included the following:
“I plead guilty to the offence of trafficking in methylamphetamine, but only between 1 January 2012 to 23 April 2012, not as per the dates currently outlined in the indictment.
On 30 June 2015 I have had lengthy discussions with legal representative Mr Mark Williams of Potts Lawyers, who is providing me with advice as he received it from Mr Tony Kimmins of Counsel. …
I am aware that if I contest the current trafficking period, I will lose discounts afforded to me under the Penalties & Sentences Act 1992, that I would otherwise receive if I were not to contest the facts.
I am aware that if I contest the current trafficking period, the Crown will call evidence from:
•	Scott Victor Stevens-Power; and
•	Ian Joseph Schaumberg
These witness will testify against me in accordance with their signed and sworn statements that have [been] provided to the Crown…I wish to contest their evidence as follows:
•	Re: Schaumberg, I will only accept that I was trafficking with him between 1 January 2012 and 27 April 2012 - a similar period to what he was convicted on …”
The applicant provided this document with his written submissions and he tendered it at the hearing of the present application.  The applicant’s case, as presented by his written argument and as he began the hearing, was that his instructions at all times remained those which are set out in the passages which I have set out from the document.
[9]	However that case is disproved by evidence adduced by the respondent from Mr Williams who was the applicant’s solicitor when he was sentenced.  According to his affidavit, the applicant had been seeking to limit his trafficking count to a period for which Schaumberg had been convicted, the applicant instructing “that he committed the majority of his drug trafficking conjointly with Mr Schaumberg and so it was only fair that he [the applicant] be sentenced only for trafficking over the same period.”  Mr Williams referred to the document to which I have referred, recalling that the applicant signed it on the day of the sentence at 10.40 am in the cells area in the courthouse, following which the applicant’s counsel (Mr Kimmins) and Mr Williams discussed this factual dispute with the prosecutor.  The applicant was brought up from the cells to the courtroom where they spoke with him.  There was then a further conversation with the prosecutor in which Mr Williams and Mr Kimmins were told that the prosecution would persist with the allegation of trafficking over the period described in the indictment, and the prosecutor reminded them of the evidence of the applicant’s trafficking over that longer period.  Mr Williams and Mr Kimmins then told the applicant of the prosecutor’s response.  In the course of that discussion, the applicant instructed his lawyers not to contest the period of trafficking as alleged in the indictment because, Mr Williams said, the applicant did not want “evidence to be given by his co‑accused and wanted to avail himself of the discount reflected by his co‑operation”.  The applicant instructed his lawyers to submit that although the offending occurred over the eight month period alleged by the indictment, that part of the offending which occurred in 2012 was “more frequent and more focused towards profit”.  He also instructed them to submit that the applicant was not producing dangerous drugs during 2011 but was only “performing preparatory acts”.  During the sentence hearing, which commenced shortly after these instructions were given, submissions were made in accordance with those instructions.
[10]	What I have described in the previous paragraph was within the affidavit of Mr Williams and it was ultimately not challenged.  But most importantly, there is a document exhibited to Mr Williams’s affidavit, which was signed by the applicant shortly before the sentencing hearing commenced, which records this change in his instructions.  The document is a copy of the indictment which Mr Williams had handed to the applicant when he changed his instructions.  Upon this document the applicant wrote:  “I plead guilty to all the counts in this indictment”.  On that page of the indictment containing the full wording of the counts, the applicant wrote immediately above the description of the trafficking charge “I agree with the dates in this count”.
[11]	The applicant cross-examined Mr Williams but did not challenge the fact of the applicant’s writing on this document.  Rather he sought to explain his argument (that he should have been sentenced for trafficking for a period of four months only) by assertions that he had been unduly pressured into changing his instructions and, at times, by a claim that he was dyslexic and unable to comprehend easily written material.  Neither of those claims is persuasive.  It may be noted that in the applicant’s presentation of his case in the present hearing, which occupied most of a court day, the applicant seemed well able to cross‑examine and argue his case by reference to documents.  Further, the question of the period of trafficking to which he would agree was not complicated or one which had arisen only on the morning of his sentencing.  He could not have been under any misapprehension as to the content of his changed instructions.  Clearly he was induced to change his instructions from the advice that it would be disadvantageous to contest the evidence which the prosecutor said would be adduced if he contested the period of the trafficking.  That was sound advice.  At one stage in his argument, he seemed to suggest that the witnesses were not available on the day of the sentence hearing to prove his trafficking over the more extensive period.  That was simply an assertion by him of which there is no evidence.  He made an informed decision from which he now seeks to resile without going so far as to apply to withdraw his plea of guilty.
[12]	Once the truth about his instructions to his lawyers is revealed, there is no basis for interfering with his sentence because of what he admitted was the period of his trafficking.
The facts of the trafficking
[13]	The sentencing judge received an agreed statement of facts which, apart from the challenge to the period of trafficking, is not questioned in this application.  In that document the following facts appear.  The applicant controlled a criminal enterprise from which he produced and distributed large quantities of methylamphetamine.  The business involved sourcing large quantities of pre-cursor materials, organising the production of the drug on a commercial scale and selling it.  The drug was manufactured at various locations by people working for the applicant.
[14]	The applicant engaged in careful techniques to avoid police detection of his drug manufacture, whilst boasting widely of his trafficking and production activities, at times saying that he had “significant police and government connections and a deep level of knowledge of investigative techniques”.
[15]	Between 19 January and 23 April 2012, acting under warrants, police intercepted and monitored calls and text messages including conversations between the applicant and others.  Over this period the applicant arranged approximately 260 supplies of methylamphetamine.  He supplied to customers “at all levels of the supply chain”, many of his customers being themselves traffickers.  He introduced dangerous drugs to potential customers through free samples and by spiking drinks with drugs.  When customers accrued considerable debts to the applicant, he used intimidation and threats to recover the debts.  He accepted payment for some of these debts by illegal acts which he procured.  On occasions he accepted payment for drugs by sex, including from a 16 year old girl.  The relationship with this girl endured for several months and by mid-April 2012 she was selling methylamphetamine to her friends.
[16]	The applicant sourced his own pseudoephedrine, buying it in multiple-kilogram lots on occasions at prices between $80,000 and $110,000 per kilogram.  The applicant transported pseudoephedrine from Sydney and elsewhere in New South Wales to Brisbane using sophisticated concealment via an interstate trucking business and by engaging couriers.  He engaged his co-offender Schaumberg to extract pseudoephedrine for him.
[17]	The applicant engaged in serious offending to enforce some drug or other debts such as by home invasions and burglaries.  He also engaged in debt recovery activities which were not specifically linked to drug activity.
[18]	A financial analysis determined that the applicant’s unexplained income in the period January to April 2012 was in excess of $280,000.  The applicant told some witnesses that he had hidden hundreds of thousands of dollars in cash by burying it on or near his property.  He spent in excess of $650,000 in developing real property near the Gold Coast.  With his co-offenders Schaumberg and another called Chan, he undertook a large scale production of methylamphetamine on 22 April 2012, producing 520g of methylamphetamine, half of which was the applicant’s share.
[19]	Some of the other offences involve the applicant’s steps to recover what he said was a drug debt owed by a Gary Krause, who had assisted him in the production of methylamphetamine.  Over a period of many months, he subjected Krause and his family to violence, burglaries and intimidation before obtaining $45,000 from Krause’s father, Mr Ronald Krause.  A statement signed by Mr Ronald Krause and his wife details the campaign of threats and intimidation which they as an elderly couple endured whilst the applicant sought payment.  Even after they paid the $45,000 which had been demanded, they were visited by associates of the applicant making further threats and demanding an amount of $80,000.  This campaign left the couple with enduring psychological effects.
Procuring misconduct
[20]	The following facts also come from the agreed statement which was tendered to the sentencing judge.  A Mr Anthes was an employee of the Gold Coast City Council with access to the council’s computer network.  The applicant supplied Anthes with steroids in order to have Anthes obtain confidential information from the council’s records about the identity and home addresses of certain people.  In one of these offences, the applicant asked Anthes to identify the persons who had complained to the council about a drug associate of the applicant who lived near them.  In the other event, the applicant contacted Anthes, telling Anthes that he had recently assaulted a person who owed him money and that he believed that this person was hiding in a property in Labrador.  He asked Anthes if he could search the council’s records for a property in this person’s name.  At the same time he told Anthes that “every day I see him, I am gonna pummel him” and “if I can get this guy by myself I can gonna cripple him”.  A few days later Anthes provided the applicant with an address in Labrador that was registered in the name of this person.
[21]	Fortunately each of these conversations with Anthes was intercepted by police who were able to take steps to ensure the safety of the potential victims.
Reasons of the sentencing judge
[22]	The sentencing judge accepted that the applicant’s pleas of guilty indicated “a level of contrition”, being timely pleas representing co-operation with the authorities.  His Honour also accepted that the applicant’s behaviour on remand had been exemplary including his assistance to other prisoners.  He had been on remand for a little over three years.
[23]	But his Honour described the offences as “extremely serious” and continued:
“[The offences] involve what could only be characterised as appalling, consistent and persistent criminal conduct engaged in shortly after your release from a lengthy period of imprisonment and while subject to a suspended sentence.  The enterprise, in respect of the drug charges, was a sophisticated commercial enterprise.  You used and abused the addictions of others to further that enterprise.  Of particular concern, you engaged in other despicable conduct to advance that business, including in relation to a 16 and a 17 year old girl.  You also engaged in extortion, it seems, to extract payment of debts.  Separately, you engaged in extortion to assist others who were owed debts.  All of that, against a background of an appalling criminal history in which you have received significant periods of imprisonment, including one for a head sentence of 14 years.”
[24]	His Honour was mindful of the effect of a sentence of 10 years or more being that he would have to serve 80 per cent of the sentence.  He said the sentences must be “tempered” by that consequence.
[25]	His Honour also had regard to a psychologist’s report tendered on the applicant’s behalf, which explained how and why the applicant had become “an institutionalised person”.  His Honour had regard to character references which, his Honour noted, had to be considered against the applicant’s criminal conduct.
[26]	As to the two counts of procuring misconduct his Honour said:
“I consider that to be very serious conduct, particularly in the context of the pleas of guilty to extortion and what is contained in the allegations there that you engaged in basically debt collecting for others.  The fact that you would access information that may be as innocent as addresses is particularly serious.  It is conduct the Courts must discourage - not only from the point of view of the public official, but also from those who seek to have a public official breach the law in that way.  I am satisfied that behaviour is of such a serious nature, and so different to the rest of your offending, that it is appropriate it attract a cumulative period of imprisonment”.
[27]	After his Honour had imposed the various sentences, it appears that he was asked to make an order in favour of Mr Ronald Krause for restitution in the same of $45,000 and such an order was made.  There is a challenge to that order which is considered below.
The trafficking sentence
[28]	In his written submissions the applicant did not complain of the length of his sentence of 10 years but that, as a sentence for a serious violent offence, he would be required to serve at least eight years of it.  His argument showed a misunderstanding of the consequence of the sentence being one of 10 years.  It seems that the applicant was not aware that as a sentence of 10 or more years for this offence, his conviction of a serious violent offence necessarily followed, by the operation of s 161A of the Penalties and Sentences Act 1992 (Qld).  His proposed notice of appeal refers to s 5(2) of the Drugs Misuse Act 1986 (Qld), where his point is apparently that because his offence predated the commencement of that provision, he should not have been convicted of a serious violent offence as if it had occurred after that date.  As I have said, this argument overlooks the effect of s 161A.
[29]	The applicant complains that he was sentenced inconsistently with the sentencing of his co‑offender Schaumberg.  He pleaded guilty to a four count indictment which included trafficking in methylamphetamine between 1 January and 27 April 2012.  Part of this complaint is the matter already discussed which is that the period of Schaumberg’s trafficking, as charged, was less than in the applicant’s case.  The difference between these periods does not assist the applicant:  rather it is one of the differences between the two cases which would explain the different sentences.
[30]	Schaumberg received a sentence of three and a half years.  A suspended sentence which had been imposed on Schaumberg was also activated resulting in a further 30 months or an effective period of six years, with a parole eligibility date fixed at the expiry of one-third of that period.
[31]	Schaumberg provided a statement outlining the applicant’s offending and an undertaking to give evidence against the applicant so that he was sentenced under s 13A of the Penalties and Sentences Act.  The sentencing judge in the applicant’s case was provided with the transcript of Schaumberg’s sentence hearing and the sentencing remarks in his case.  The prosecutor in the present case told his Honour that Schaumberg was “effectively [the applicant’s] right hand man in relation to the production”.
[32]	There were many differences then between Schaumberg’s case and that of the applicant.  It cannot be said that the present sentence offended the parity principle.
[33]	Having regard to the scale of this trafficking and its circumstances as I have summarised, the applicant’s serious criminal history and the fact that he committed this offence whilst subject to suspended terms of imprisonment, it cannot be said that the term which was imposed was manifestly excessive and I did not understand the applicant to so contend.  In my opinion the sentence could not be described even as a heavy one.  There is no demonstrated error in the reasoning of the judge in the imposition of this sentence.
Cumulative sentences
[34]	The applicant says that his sentences for the offences involving Mr Anthes were disproportionately high compared with the terms of 18 months, wholly suspended, imposed on Mr Anthes.  But there were differences between the two offenders.  The applicant was the initiator of this conduct.  It was his intention that the information to be obtained by Mr Anthes be used to identify or locate persons who would be subjected to intimidation and perhaps violence.  And Anthes had no criminal history.
[35]	The applicant submits that these offences were incidental to his drug trafficking enterprise so that they should have been the subject of a concurrent term, just as the other sentences were made concurrent with the sentence for trafficking.  However I agree with the sentencing judge’s characterisation of these offences as sufficiently different from the other offences as to enable them to be the subject of a cumulative sentence.  Fortunately offences of this kind are not a common incident of drug trafficking.  The particular vice of these offences, the corruption of a public official, justified cumulative sentences as a strong deterrent to others.
[36]	The sentencing judge had to keep in mind the totality principle.  But his Honour said that he had regard to it and the outcome does not demonstrate otherwise.
A further argument
[37]	Although the applicant was legally represented when he was sentenced, he complains that he was denied procedural fairness by not being given the opportunity to personally address the sentencing judge.  This submission appears to have been inspired by the fact that after the allocutus was administered and the applicant responded by saying that he had nothing to say, his Honour said that he would hear from the prosecutor and the applicant’s counsel and that “if at the end of that there’s something you wish to say, you can say it then.”  The complaint now seems to be that when the submissions from counsel had been made, his Honour did not ask the applicant whether he wished to say anything.  Just what the applicant would have said, other than that which his counsel had said or an argument of a kind which I have already discussed and rejected, is not revealed.  This argument must also be rejected.
The order for compensation
[38]	I have described already the circumstances of the order made in favour of Mr Krause.  In applying for that order, the prosecutor told the sentencing judge that although the applicant had been in custody for some time (implying that he had not been receiving income from which he could pay Mr Krause $45,000), the prosecutor was “instructed that there is an amount of restrained property that is capable of satisfying that amount …”  The respondent here concedes that submission was erroneous because the property restrained under the Criminal Proceeds Confiscation Act 2002 (Qld) cannot be used for that purpose.  It is also conceded that the applicant has no apparent means of satisfying the order and that recent observations of the President in R v Flint are apposite:
“In the absence of cogent evidence that an offender has the capacity to pay compensation after release from a term of actual imprisonment imposed as part of a sentence, courts are reluctant to order offenders to pay compensation after serving a term of imprisonment.  To do so may jeopardise the offender’s prospects of rehabilitation; it would be apt to amount to a crushing sentence and would risk setting up the offender to fail at the time of release from prison when most in need of support to reintegrate into society.”
[39]	Because of his interest in this part of the proposed appeal, Mr Krause was informed of the application under r 68 of the Criminal Practice Rules 1999 but did not appear at the hearing.
[40]	The respondent now concedes that in the circumstances of the applicant’s case, the “restitution order” should not have been sought and granted by the sentencing judge.  This order is part of the sentence imposed for the first count upon Indictment No. 101 of 2015 presented in the District Court.  There should be an order granting leave to appeal against that sentence and allowing the appeal by varying the sentence to set aside that order for payment to Mr Krause.
Orders
[41]	For these reasons I would order as follows:
(1)	Grant leave to appeal against the sentence imposed for Count 1 on the indictment numbered 101/15.
(2)	Allow that appeal by setting aside the order that the appellant make restitution of $45,000 to Ronald Krause.
(3)	Otherwise dismiss that appeal.
(4)	Otherwise refuse the applications for leave to appeal against sentence.
[42]	DAUBNEY J:  I agree with Philip McMurdo JA.