R v Duggan [1996] QCA 218

Court of Appeal (Qld)|1996-06-25|Before: Fitzgerald P, Davies J

The applicant in the first of these cases was a 40 year old man with only minor and unrelated prior convictions and a reasonable employment history. He was convicted after a trial of possession of 16 gms of amphetamine and was sentenced at first instance, in effect, to seven years and ten months imprisonment. Notwithstanding that the Court on appeal thought that it was fair to regard him as having played a substantial role in the distribution of very significant quantities of amphetamine his sentence was reduced by the court to four and a half years imprisonment.

Cuddy was a 36 year old man convicted of three offences of trafficking in methylamphetamine. He appealed against the sentence of four and a half years imprisonment. It was reduced by the Court of Criminal Appeal to three years. Although the decision on appeal was given on 24 October 1988 the Court does not appear to have been referred to Dorey.

Cuddy had a criminal record including five separate offences of stealing, breaking and entering or attempted breaking and entering. More importantly in May 1986 he was convicted of selling methylamphetamine for which he was sentenced to six months imprisonment and committed the subject offence within nine months of his release.

The main features of Cuddy were said to be the nature of the drug, the fact that the applicant was in the business of selling it in moderate quantities, the fact that he was not involved in its manufacture or packaging and was at the lower end of an extended chain of supply and the aggravating circumstance that he was reoffending within nine months of release after conviction for selling the same drug. The appellant was himself addicted to that drug.

The trafficking offence in the present case was a much more serious one than that in Cuddy. The quantities were much greater and the appellant's ready access to large quantities together with the statements which he made indicated that he was by no means at the lower end of the supply chain. By contrast Cuddy was a very small dealer substantially to feed his own habit. Moreover the offences relating to cannabis and cocaine in the present case indicate that the appellant had ready access to those other drugs, in the former case on his own admission in substantial quantities.

Those cases, together with recent decisions of this Court, show that the sentence imposed here was not outside the appropriate range. White, C.A. No. 56 of 1992, judgment delivered 11 June 1992 was convicted on his own plea of unlawfully trafficking in amphetamine, methylamphetamine, THC and cannabis sativa. He was sentenced to three years imprisonment. As in this case, the transactions occurred between the applicant and an undercover police officer. The applicant's case was that the police officer pestered him to sell drugs, making up a story that he was desperately in need of funds in order to induce the applicant to obtain drugs and sell them to him. The quantities and amounts involved appear to have been substantially less than in this case. The applicant was sentenced on the basis that he was procured to sell by an undercover police officer who became a close friend, that these transactions produced him little material gain except the amount of methylamphetamine which he took on each occasion to feed his own habit. Moreover he moved his place of residence for the purpose of ceasing to be involved in the drug scene but was pursued by the police officer who again attempted to obtain amphetamines from him, this time without success. White co-operated with the police supplying names and addresses of his suppliers. The sentence was not interfered with but, having regard to the personal factors mentioned above, a recommendation was made for eligibility for parole after nine months.

Chan C.A. No. 334 of 1992, judgment delivered 23 February 1993, was an Attorney's appeal against a sentence of, in effect, four and a half years for trafficking in lysergide, amphetamine and some of its derivatives. This case also involved sales to an undercover policemen over a period of about 13 days. The profits expected from the transactions were thought to be about $10,000 for the sales of amphetamine and $3,000 for the sales of LSD. The respondent, like the appellant here, was sentenced on the basis that he had been carrying on the unlawful business of trafficking in drugs before he met the undercover policeman. The learned sentencing Judge was satisfied that the respondent was a significant link in the chain of drug distribution. The respondent was not a drug user. The appeal was allowed and the sentence increased to one of seven years. Although the offences in that case were more serious than those in this, the sentence imposed by the Court in that case justifies that imposed in this one.

We would therefore refuse the application for an extension of time within which to apply for leave to appeal against sentence.

The circumstances giving rise to this appeal and the application for an extension of time within which to apply for leave to appeal against sentence are set out in the reasons for judgment of the other members of the Court.

The appellant did not first commence to supply or traffic in drugs at the instigation of a law enforcement officer, but was already engaged in such activities when first approached by the covert police officer as a "customer". His later sales to that police officer occurred in the continuing course of his activities, according to his own statements at that time. In my opinion, in such circumstances the trial Judge was entitled to rule the evidence admissible at the end of the voir dire: see Gudgeon C.A. No. 377 of 1994, unreported judgment delivered 17 November 1995.

I agree that the appeal against conviction should be dismissed. I also agree with the other members of the Court that the application for an extension of time within which to apply for leave to appeal against sentence should be refused, and have nothing to add to their reasons.

This was, as his Honour said, a case of an "unwary criminal": Ridgeway v. R. [1995] HCA 66; (1995) 69 A.L.J.R. 484 at 500-501. Once the unchallenged and uncontradicted evidence of Kruger is accepted it is difficult to see what relevance the appellant's asserted vulnerable state of mind would have had. He was a willing seller, apparently able to acquire substantial quantities of methylamphetamine and cannabis sativa and willing to offer discounts to Kruger and at least one other buyer as incentives to them to purchase in larger quantities. Moreover Kruger, on this evidence, did no more than gain the appellant's confidence and then offer to buy drugs from him. It is true that almost all contact between the appellant and Kruger was initiated by Kruger but there is no evidence that, upon making contact, he did anything more than offer to buy drugs which the appellant was willing to sell.

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