Detailed Case Study: R v Elfar & Golding [2017] QCA 170 - Law Case

This case study provides a comprehensive analysis of R v Elfar & Golding [2017] QCA 170, a case involving the importation of cocaine into Australia. The appellants, Elfar and Golding, challenged their sentences, arguing they were excessive and inconsistent with the parity principle relative to their co-offender, Sander. The judges offered differing opinions, with Morrison JA dismissing the appeal and McMURDO JA supporting Golding's appeal based on sentencing disparity. The study further examines the jurisdiction of the Queensland Supreme Court in Commonwealth criminal matters, defines border control drugs according to the Criminal Code Regulations 2002, and considers hypothetical scenarios involving similar offenses. The author reflects on their learning experience from a related tutorial, emphasizing the importance of case law analysis and attention to detail in legal assignments.

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R v Elfar & Golding [2017] QCA 170
Facts of the case
In this the applicants had been convicted form importing cocaine into Australia. Cocaine
is a border control drug and thus its importation is a crime under s 11.2A (1) and (2) and s
307.1(1) of the Criminal Code 1995 (Cth)1. The first applicant of the case Elfar has been
imposed with a 30 year sentence by the court along with a 20 year non-parole period. The second
applicant of the case Golding has been imposed with a 30 year sentence by the court along with a
18 year non-parole period. The third co-offender of the case Sander has been imposed with a 30
year sentence by the court along with a 16 year non-parole period. Appeals against convictions
made by them had been dismissed by the court. In this case the first and the second applicant
have made a claim against the sentence imposed on them on the grounds that basis that the
sentence is prima faice excessive and not in accordance to the principle of parity in relation to
the three co-offenders. As per the facts of the case the importation of the drugs was well planned
international operation. The first and the second applicant had sailed a yacht and exchanged
400Kg of cocaine with another ship. They were arrested by Australian Federal Police (AFP). The
actions of the first applicant were more serious as he provided the Yatch and planned the whole
incident. Submission had been made by the applicant that the criminal history of the co offenders
did not have any material differences. Submission had been made by the applicant that in relation
to Sander there was a lack of parity. It was found by the sentencing judge that Golding and Elfar
hand been both liable for planning and executing the importation and the contribution of Golding
was little less than Elfar. Both of the applicants had knowledge about the importation but did not
1 The Criminal Code 1995 (Cth) s11.2A (1) and (2) and s 307.1(1)

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know much about the seriousness of the offending. Sander had been a part of the act because of
his skills of seamanship and he also had not criminal history. It was found by the sentencing
judge that the motive of all offenders was monitory gain but sander facilitated the administration
of justice by not providing any unnecessary evidence. In addition a number of character
references had also been provided by Sander. The issue in this appeal is that whether parity
principle had been observed by the sentencing judge which exercising his sentencing discretion.
Grounds of making the appeal
An appeal has been made in this case by the first and second co-offenders who are Elfar and
Golding respectively. The third co-offender has not made the appeal. The appeal has been made
against the sentence imposed on them. The appeals have been made on the following grounds:
1. The imposed sentences are manifestly excessive;
2. The parity principle had been observed by the sentencing judge
DECISION OF THE JUDGES
MORRISON JA
It was stated by the judge that it had not been contended that the relevant legal principles had
been misunderstood by the sentencing judge. There were various cases which had been relied
upon by the judge for the purpose of identifying the difference between the levels of contribution
made by the applicants with respect to the offence2. In relation to the consideration of parity it
has been stated by the judge that in his view it is quite clear that the sentencing judge gave
consideration to the issue of parity although authorities like Postiglione3 had not been mentioned
2 Wong v The Queen [2013] VSCA 52
3 Postiglione v The Queen (1997) 189 CLR 295

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by him. The sentencing judge dealt with the individual factors which were applicable in relation
to Golding. It had been stated by the judge that he had already referred to the principle of parity.
Another instance which made it clear that the sentencing judge considered the issue of parity was
that the individual differences between Golding, Sander and Elfar had been listed by him.
Further it had been provided by the judge that the sentencing judge had been acutely aware of the
requirement of Parity to be taken into account along with the test of determining whether the
principles have been addressed. This case be stated evidently through the analysis of three
statements made by the sentencing judge4. Through consideration of the Postiglione case the
judge came to a conclusion that the principles of parity operate on the basis that similar actions
should be provided similar punishments, however where there are any considerable differences
proper allowance have to be made5. The judge based on the above principle and the differences
between the relevant situations of the offenders came to a conclusion that the principles of parity
had been considered by the sentencing judge. In relation to the issue of the sentences being
manifestly excessive the judge referred to the case of R v Tout6. As per the case in order to prove
a sentence as manifestly excessive it is not adequate to state that the sentence is different from
other cases rather it has to be provided that the difference is because of not applying the
principles properly or ‘unreasonable or plainly unjust’7 element is present in the sentence. In
addition no single correct sentence can be said to exist. Flexibility has to be provided to judges at
first instance courts while imposing sentences as long as they are in compliance with law. Based
on these principles the judge came to a conclusion that the no merit is present in the claim in
relation to the sentence being manifestly excessive. Thus the court rejected the appeal made by
the appellants.
4 AB 2342 lines 28-32; AB 2344 lines 6-11; AB 2345 lines 21-29.
5 R v Elfar & Golding [2017] QCA 170 at [48]
6 [2012] QCA 296 at [8].
7Hili v The Queen (2010) 242 CLR 520 at [58]

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McMURDO JA
The judge did not agree to the decision provided by Morrison JA. He stated that it had not been
contended by the applicants’ counsels that the 30 years head sentence was too high. The
arguments which had been made by the applicants were that the sentences showed disparity and
were against the principles of equal justice. He held that this is an acceptable argument. He held
that there was no difference between the actions which had been committed by Sander and
Golding. A difference had not been suggested by the prosecutor or the sentencing judge. The
case between Golding and Slander had been differentiated by stating that there was “slightly
more” criminality involved8. However the reason for such conclusion has not been explained.
However the involvement of Elfar in the act can be stated as more serious as he had control of
the Yatch “Mayhem”. However the sentencing of Golding was not in accordance to the
principles of Parity as although Golding has some criminal history as compared to no criminal
history of Sander his history was of very less significance. Age of both men was also similar.
The factors that Sander had been a model prisoner and had disability with his teeth in the prison
were not significantly mitigating factors. In addition the reasoning provided by the judge that
sander “did not at any time waste the court’s time with irrelevant questions” was insignificant in
relation to the seriousness of the crime committed9. Especially these considerations cannot be
made to reduce the sentence by a period of 2 years as compared to that of Golding. The charge
had been after all defended by sander and no remorse has been depicted. The judge was of the
view that a justifiable sense of grievance may be held by Golding in relation to the fact that he
has to be in Jail for a period of two years more than Sander before being eligible for parole. Thus
8 R v Elfar & Golding [2017] QCA 170 at [77]
9 R v Elfar & Golding [2017] QCA 170 at [79]

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the judge held that the appeal which has been made by Golding has to be granted by the court.
However, the arguments presented in favor of Elfar had been rejected by the judge.
Gotterson JA
The judge agreed with the reasoning of Morrison JA and thus the appeal had been dismissed by a
ratio of 2:1.
The jurisdiction of Queensland Supreme Court to hear commonwealth criminal matters
The supreme court of Queensland has been provided with the jurisdiction to hear any case which
arises within its jurisdiction. This power has been provided to the court through the provisions of
Supreme Court of Queensland Act 199110. Thus any commonwealth matter which takes place
within the jurisdiction of the Supreme Court can be heard at the court.
How to know whether cocaine is a border control drug
The list of the drugs which are categorized as border control drugs are provided through
Criminal Code Regulations 2002. It has been provided through Section 301.4 of the Criminal
Code that any drug which has been listed as a border controlled drug by any regulation is a
border control drug11. Schedule 4 of the Criminal Code Regulations 2002 lists cocaine as a
border controlled drug at number 41. It has been provided through Section 301.10 of the
Criminal Code that any quantity of drug which has been listed as commercial quantity of a
border controlled drug by any regulation is a commercial quantity of a border controlled drug12.
10 Supreme Court of Queensland Act 1991 (Cth)
11 Criminal Code 1995 (Cth) s 301.4.
12 Criminal Code 1995 (Cth) s 301.10.

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Schedule 4 of the Criminal Code Regulations 2002 lists cocaine as a border controlled drug at
number 41 and states that its commercial quantity is 2 kilo grams through column 213.
Rick and Morty situation
a. No in the given situation Rick and Morty would have not been liable to be charged under
the same section which Elfar and Golding have been changed in this situation which is
section 307.1 of the Criminal Code 199514. This is because it has been stated by section
311.4 that the section in breached if a person imports or exports a border controlled
drug in a commercial quantity repeatedly for business purpose15. Here it is provided that
drug import is carried out by Rick and Morty repeatedly.
b. Yes in the given situation their sentence would be same like that of Elfar and Golding.
This is because when a person braches section 311.4 and there is no additional penalty
which is provided in relation to the breach of this section16.
Experience from Hart v Rankin [1979] WAR 144 tutorial
Through the experience which I had in relation to Hart v Rankin [1979] WAR 144 tutorial I have
learnt various things. I learnt how to locate a case law online and how to find the specific
wordings provided by the judges in the case. I got to know how to divide the case into specific
sections where the division is not done. There are various things which need to be cross checked
13 Criminal Code Regulations 2002 (Cth) Schedule 4.
14 Criminal Code 1995 (Cth) s 307.1.
15 Criminal Code 1995 (Cth) s 311.4
16 Criminal Code 1995 (Cth) s 311.4

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before handing my assignment to ensure best work. These include sticking to the word limit and
ensuring that all sources used in the assignment are properly addressed. I also have to ensure that
I provide to the point answers and proof read my own assignment to locate and rectify any error.

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Bibliography
Criminal Code Regulations 2002 (Cth)
Hili v The Queen (2010) 242 CLR 520 at [58]
Postiglione v The Queen (1997) 189 CLR 295
R v Elfar & Golding [2017] QCA 170
R v Tout [2012] QCA 296 at [8].
Supreme Court of Queensland Act 1991 (Cth)
The Criminal Code 1995 (Cth)
Wong v The Queen [2013] VSCA 52