R v Clarke [1996] QCA 474

Court of Appeal (Qld)|1996-11-29|Before: Before McPherson J, Dowsett J, White J

The respondent to this appeal by the Attorney-General was presented in the Supreme Court at Rockhampton on an indictment charging her with carrying on the business of trafficking in heroin and cannabis between 1 January and 8 August (count 1); a count of supplying heroin in June 1995 (count 2), and another in July 1995 (count 10), and seven counts of possessing or supplying cannabis on specified dates in June, July, August and October 1995. On being re-arraigned when the charges came to trial on 1 August 1996, she pleaded guilty to all counts except the first two. The trial then proceeded on these two counts, on each of which the jury, after retiring for less than an hour, returned verdicts of guilty.

In respect of count 1 (trafficking in heroin and cannabis), the respondent was sentenced to imprisonment for 5 years wholly suspended for five years. As regards the offences involving cannabis (counts 3 to 9, and counts 11 and 12), she was ordered to perform 240 hours of community service. On the two charges (counts 1 and 10) of supplying heroin she was placed on probation for three years. As to count 2, the amount of heroin supplied was .174 of a gram in a quantity of powder weighing .81 of a gram (21.6%); in the case of count 10, it was .179g. out of a total powder content of .768g (23.4%). The weight of the marijuana involved in the other seven counts was in all about 40gs.

The Attorney's appeal was based on the ground that the sentences imposed were manifestly inadequate, but it was primarily directed to the sentence of 5 years in respect of trafficking in heroin and cannabis (count 1), which was wholly suspended. It was submitted by counsel for the Attorney that a sentence of 7 to 9 years was called for; but, in the circumstances of this case, we consider it was within the limits of a proper sentencing discretion to impose a term of imprisonment of 5 years for that offence. At the time of sentencing, the respondent, who is a woman with a son aged 5, was some 24 years old, and she must therefore have been only 23 or less at the time the offences were committed. She had been a heroin addict, but had, before the trial, succeeded in ridding herself of that addiction. She had a previous conviction in the magistrates court in 1992 for possession of cannabis, for which she was fined a small sum, and some cannabis was found in the house during the search on 4 October 1995.

The substantial question before us is whether the learned Judge was justified in suspending the whole of the 5 year sentence imposed on the major charge in count 1. As the appeal proceeded, it became clear that Mrs Clare for the Attorney-General was challenging findings made by the judge, and it is therefore necessary to review the evidence in some detail.

The respondent was arrested and charged after an undercover operation conducted by the Drug Squad in June 1995 and in the months that followed. The evidence at the trial (at which the respondent herself did not testify) consisted essentially of tape recorded conversations between the undercover agent and the respondent in the course of supplying or arranging to supply the drugs charged in counts 2 to 11; together with a taped record of another conversation with Det.Sgt. Watt and Det.Sgt. McIlwain on 4 October 1995, when the respondent's house was searched preparatory to her arrest; and the ensuing interview at the police station on 4 October 1995, which was video-taped.

On the charge of trafficking in count 1, the critical admissions were first made by the respondent in the conversation on 4 October, when the house was searched. She admitted that, to support her addiction, she was selling heroin, although not "to every low-life in town" but only to one person, whose name she declined to provide. When asked how much "gear" she would have sold, her reply was "$60,000, $100,000 worth, profit". By "profit" she meant "that I used ... 3 or 4 hits a day", or at least half an ounce pure in a fortnight. She would buy an ounce, "cut" it in half; use that half herself; and sell the other half. She would fly to Sydney fortnightly to pick it up. It cost $8,000 an ounce, "pretty close to pure" (or $4,000 for half an ounce) "in Cabramatta on the market". She repeated that she had supplied to only one person and that she could not disclose who it was. She was "fuckin dead now", and began to cry.

At the interview at the police station which followed, the respondent was questioned again about what she had said at the house and in conversation with the undercover agent. She said it "could be right" that she was charging $400 to $500 for a single gram packet of powder containing heroin. She agreed that she had told the undercover agent it cost her about $800 or $900 per gram to buy the heroin in rock form. She confirmed she had said she made a "profit" of $100,000, which was used to satisfy her addiction; but that was what the drug people had estimated she had "put up her arm" . The "drug people" were those she had consulted for treatment to help her break the habit. She agreed she had been using half of what she bought, and selling the other half, after diluting it with glucodin; but it was every month, she said, not every fortnight. She was not prepared to say how many people she had sold it to, but it was "two or three". She confirmed she had been flying to Sydney once a month and buying rock heroin from Vietnamese people in the street at Cabramatta, and that she had begun doing so in about January 1995. She had not, she said, pushed drugs on anyone, and so was not addicting people to heroin; but had waited until they came to her.

On the basis of these conversations and interviews, if they were accepted by the jury as reliable, there was evidence on which they would have been justified in finding that in the 10 months preceding her arrest, the respondent had bought some $80,000 to $100,000 worth of rock heroin in Cabramatta, which she resold in Rockhampton after diluting it and using half of it herself. There is a possible ambiguity in the admission; but, even on the version most favourable to her, the respondent had, in purchasing over that period, paid out some $40,000 in buying heroin, half of which she had "cut" and resold for $40,000 to two or three people, of whom it may be assumed the undercover agent was one. His evidence was that he paid $400 in June and $500 in July 1995 for the foils of heroin the subject of supply counts 2 and 10. To that extent he corroborated that aspect of her confession. If the respondent was supplying heroin in quantities of that order, she must have engaged in about 80 to 100 such transactions during the 10 month period. On that footing it might be inferred that, at that rate, she was supplying to some eight or ten purchasers and not the two or three to which she admitted. Alternatively, she may have been supplying to fewer persons but in larger quantities. On any view, the extent of the respondent's trade in heroin was considerable. The crown estimate was that about 60 grams was involved.

On appeal it was submitted on the respondent's behalf that, in finding her guilty of trafficking, the jury might not have accepted either completely or at all the details of her admissions about the nature, frequency and quantity of her purchases and sales of heroin, but based their verdict of guilty on count 1 on the tape recordings of the conversations with the undercover agent relating to the two particular counts 2 and 10 of supplying heroin to him. Such an interpretation of the verdicts is, in our opinion, quite untenable. At the trial none of the statements made at the house or in the interview were contradicted or challenged by the defence. It is very doubtful whether, taken in isolation from her admissions about her purchases in Cabramatta and what she did with the heroin on her return, the evidence in support of counts 2 and 10 would have been sufficient to sustain a verdict of carrying on the business of trafficking. In finding her guilty of that offence, the jury must have acted on her recorded admissions.

In any event, in arriving at the sentence imposed, the learned Judge did not adopt such a restricted view of her conduct. In the course of his sentencing remarks, he mentioned that he had specifically directed the jury to take account of the fact that in conversations with undercover operatives there was a tendency for both sides to "inflate the situation" by "talking up big", and "it all needs then to be taken with a grain of salt". So much may be accepted; but it is difficult to understand why it should follow that, as his Honour went on, "the same applied" to some of the things said to the interviewing police officers. He said:

"It seemed to me the same also applied to some of the things you said to the police officers who interviewed you from the drug squad. However, what is clear from that interview, is that, for whatever reason, you had developed the practice of going to Cabramatta by plane and buying a quantity of apparently pure heroin, of bringing it back, of breaking it down, of selling some and using some. I do not believe that I can accept any of the figures that are mentioned in what you said. While you were speaking against your interest and usually Courts act on things people say when they speak against their interests, your general attitude that day seemed to me to indicate that you were not fully in control of yourself. Nonetheless, you were involved clearly in trafficking."

From this it appears that his Honour regarded as reliable the respondent's admissions that, "for whatever reason", she had frequently travelled to Cabramatta and bought heroin there, which she later resold in Rockhampton. What he did not accept was her statements about the quantities purchased; that is, amounts having a resale value of $80,000 to $100,000. The explanation he gave for rejecting those figures is that "you were not fully in control of yourself". His Honour's observation to that effect is related to a similar but earlier observation in his sentencing remarks that "there was a lot of giggling and foolish responses to questions" in the course of the video-taped interview. Immediately before saying that, he noticed that on the night before the respondent's house was "raided" on 4 October 1995, she had taken some cannabis.

It appears to be implicit in what the learned Judge said that he considered that the respondent's statement in the interview on 4 October 1995 about the quantities of heroin bought and sold was rendered unreliable, or less reliable, because of her having used cannabis on the evening of 3 October 1995. On the evidence, however, it was not possible to discount her admissions in that way. It is true that the formal interview commenced at 6.59 a.m. and concluded at 8.22 a.m., and that it therefore followed the recorded conversation at her house soon after the police arrived there at 5.30 a.m. on 4 October. But the only evidence that she had used cannabis on the previous evening was her own admission to the police that morning, and it was largely if not completely refuted by a certificate of a urine test tendered in evidence by counsel for the respondent and admitted as ex.25. The certificate was dated 4 October 1995, and was relied on by counsel to support a submission on sentence that she had "kicked the heroin addiction [and] that she was negative for everything bar [the] methadone" she was receiving as part of her treatment for heroin addiction.

There is more than one possible or potential inconsistency between the admissions and the use that was made of the certificate in the course of the sentencing hearing. However, even if it cannot be interpreted as showing that the respondent had not used cannabis on the night of 3 October 1995, there was simply no evidence of the quantity used or its continuing effect on her at the time of the interview on the morning of the following day. Nothing to that effect was put at the trial to any of the police witnesses who saw her that morning. She did not herself give evidence about it, as she might safely have done, at the sentence hearing, and her counsel did not advance any submission based on the theory that, because of that circumstance, her admissions about the quantities of heroin bought and sold during the relevant period were unreliable or of little evidentiary weight. If such a submission had been made on sentence, it would no doubt have been possible for the prosecution in turn to adduce rebutting evidence on that point; or, at the very least, to require that the defence establish the contention as a matter of fact. As it was, it was something that, if it had been relied on by the defence at the trial of counts 1 and 2, might have gone some way towards undermining the general reliability of the confessional evidence on which the jury acted in finding her guilty of trafficking; but nothing to that effect was put in cross-examination to either of the police witnesses who saw her that morning.

In the result, we do not consider that, applying the appropriate standard of proof on sentence (which was the balance of probability), the learned Judge was justified in rejecting the respondent's admissions about the quantities of heroin she had bought and sold. This is not an instance in which the tribunal of fact on the sentencing hearing enjoyed advantages not shared by this Court on appeal. The only evidence of what the respondent said on the morning of 4 October 1996 is recorded "live", and we have listened to the relevant tape recording and viewed the video tape of the interview. Having done so, we do not share his Honour's impression that the respondent was "not fully in control" of herself, or less in control than might have been expected of any other individual facing the certainty of such serious charges. Although young, she completed grade 12 at the local grammar school, and is not an uneducated person. At the beginning of the record of interview she received the standard warning in clear terms, and she also agreed that it had been given to her earlier at the house. In relation to one question about cutting pure heroin, she at first hesitated to answer lest it incriminate her. She was sufficiently alert to be emphatic in her denials that she had used or supplied "hash oil". She specifically denied using a kitchen scale, which was found at her home, for weighing drugs, and asked if it was true that police had a method of detecting whether scales had been used for that purpose. She expressed concern at the possibility that she might have to pay back the money received from the undercover agent. It is true that at times in the course of the interview she giggled; but that in our respectful opinion does not justify an inference that what she said on that occasion was not reliable or true.

In our respectful view, his Honour was mistaken in discounting the reliability of the respondent's admissions about the quantities of heroin which she bought and sold.

The other matter on which his Honour particularly relied in taking a lenient view of the offences was his impression that the respondent had been influenced by the man Roy with whom she was living. He was apparently employed as a fisherman and therefore absent much of the time. Roy was present during only two of the four recorded conversations that took place in the house between the respondent and the undercover police officer. Counsel for the respondent, although "not putting up instructions here as such", submitted that it was Roy that had "introduced her to heroin", or, at any rate, "she wasn't addicted to heroin when she met up with" him. Referring to the taped conversations, counsel said that, it appeared that whenever that man spoke, "he almost speaks with the voice of authority, or certainly with some knowledge, with respect to the drug trade". While accepting that there was no evidence that clearly showed that the respondent was dominated by Roy, his Honour considered it a "substantial possibility" that that was the case. He went on to add that, in consequence, there were "matters of substantial mitigation which reduce the sentence", and left open sentencing options not available in many heroin trafficking cases.

Again, we have listened to the relevant tapes and have read the transcripts of the conversations in them. In one of them the undercover agent arrived at the house at a time when the respondent was showering. Roy answered the door, and then called the respondent, asking the agent to wait. He appears to have taken no part in the drug transaction that ensued. On another occasion, Roy asked how much the cannabis was going to be sold for. The question seems to have been directed to the agent rather than the respondent; but it was the respondent, and not Roy, who pursued the matter and insisted that the agent pay $3,700 or more for the cannabis. She said or implied that that was what she had paid for it; and, as appears from the agent's evidence at the trial, it was she who took the money that was paid. The only other remark made by Roy consisted of a complaint about the price they were having to pay; and his response to the agent's explanation that he had had "one lined up" but the [supplier] had let him down. To that Roy responded that he had had similar experience of others doing the same thing: "they liked talking f - big dollars mate; it happens all the time. I don't know how many f - times it's happened ...".

The passages referred to justify the conclusion that Roy was himself involved in dealing in cannabis. He was, it seems, also a heroin addict, and was said at one stage to have prevailed on the respondent to continue her methadone treatment to enable him to have access to methadone supplied to her. Primarily on that basis, Dr Alroe, who provided a psychiatric assessment of the respondent, ventured the opinion that Roy "lived off her emotions in a parasitic way". However that description of their relationship is much too imprecise to found an inference that, in the matter of buying and selling heroin, the respondent was dominated by Roy. According to the account given by defence counsel of the respondent's history, she had become involved in the drug "scene" after becoming pregnant at the age of 17 to another man, who later went back to Mackay. There is, in the end, really no reliable evidence that the respondent was under Roy's domination, apart from the nowadays increasingly threadbare assumption that in all matters women commonly act under the influence of men with whom they are maintaining a relationship. When shown a loaded firearm discovered at the house during the search, the respondent showed no aversion to blaming Roy for its presence. "I'm so mad at Roy for doing this to me", she said, adding "He's a bastard". She made no such accusation against him with respect to drug trafficking. Perhaps she was trying to protect him; but that was not suggested by her counsel. He went no further than to say or imply that the respondent had adopted Roy's habit of using heroin.

In the light of these comments and conclusions, we do not consider that the findings of fact that led his Honour to mitigate the sentence are supported by the evidence. There is nothing to justify an opinion that the respondent should be regarded as having little or no real responsibility for the serious offences in which she engaged. Account must be taken of her young son's need for maternal care and attention; but it does not make the respondent immune to appropriate punishment. Her father, who is a respectable businessman now retired, has undertaken to care for the child. In fixing any parole period, we should, on an appeal like this, give some weight to the favourable view adopted by the sentencing Judge of the respondent's success in ridding herself of her addiction. She must be sentenced not with undue leniency, but with as much humanity as the character of her offence allows.

The appeal should be allowed to the extent of setting aside the suspension of the sentence imposed on count 1 for trafficking, and ordering instead that the respondent be considered for parole after serving 18 months of the five year sentence imposed. She has, we were informed already performed 37 hours of the 240 hour community service order imposed on counts 3 to 9 and 11 and 12. Having eliminated the suspension on count 1, we think that the appropriate order on those counts is to set aside the order for 240 hours community service and substitute an order for 37 hours community service, which she has already performed. With respect to counts 2 and 10, the appropriate course is to set aside the order for probation, and to order that the respondent be sentenced to a term of imprisonment for 12 months to be served concurrently with the sentence on count 1.

A warrant should issue for the arrest of the respondent, which is to lie in the Registry for 7 days or until further order.

1. THE SUSPENSION OF THE SENTENCE ON COUNT 1 IS SET ASIDE AND IN LIEU IT IS ORDERED THAT THE RESPONDENT BE CONSIDERED FOR PAROLE AFTER SERVING 18 MONTHS OF THE 5 YEAR SENTENCE.

2. THE ORDER IN RESPECT OF COUNTS 3-9 AND 11-12 THAT THE RESPONDENT PERFORM 240 HOURS OF COMMUNITY SERVICE IS SET ASIDE AND IN LIEU IT IS ORDERED THAT SHE PERFORM 37 HOURS COMMUNITY SERVICE.

3. WITH RESPECT TO COUNTS 2 AND 10 THE ORDER FOR PROBATION IS SET ASIDE AND IN LIEU IT IS ORDERED THAT THE RESPONDENT BE SENTENCED TO A TERM OF IMPRISONMENT FOR 12 MONTHS, TO BE SERVED CONCURRENTLY WITH THE SENTENCE ON COUNT 1.

4. IT IS ORDERED THAT A WARRANT ISSUE FOR THE ARREST OF THE RESPONDENT, BUT IT IS TO LIE IN THE REGISTRY FOR 7 DAYS OR UNTIL FURTHER ORDER.

CATCHWORDS: CRIMINAL LAW - SENTENCE - Trafficking in heroin and cannabis - Whether sentencing Judge acted on insufficient evidence in extending leniency - Sentence increased on appeal.

Solicitors: Queensland Director of Public Prosecutions for the appellant

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