R v Ianculescu [1999] QCA 439

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - FACTUAL BASIS FOR SENTENCE - PROOF OF EVIDENCE - STANDARD OF PROOF - relevant principles - s 13A Penalties and Sentences Act 1992

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - OTHER MATTERS - QUEENSLAND - amendment of sentencing legislation - application to offences committed prior to commencement - Criminal Code s 2 s 11(2); s 567(3) - Acts Interpretation Act 1954 s 20C(1) - Penalties and Sentences Act 1992 Pt 9A; s 180

Statutes - Acts of ParSTATUTES - ACTS OF PARLIAMENT - OPERATION AND EFFECT OF STATUTES - PARTICULAR CLASSES OF STATUTE - PENAL - PUNISHMENT AND PENALTY - amendment of sentencing legislation - application to offences committed prior to commencement - Criminal Code s 11(2) - Acts Interpretation Act 1954 s 20C(1) - Penalties and Sentences Act 1992 Pt 9A; s 180

Buciuman, Buciuman and Dobrovolski CA No's 342, 343 and 346 of 1996, 3 October 1996

Demir CA No 13 of 1995, 4 August 1995; [1995] QCA 332

Dossi (1918) 87 LJKB 1024

Elhusseini [1988] 2 Qd R 442

Giretti and Giretti (1986) 24 A Crim R 112

Kiripatea [1991] 2 Qd R 686

Mallard and White CA No. 450 and 452 of 1997, 17 April 1998; [1998] QCA 59

Malvaso [1989] HCA 58; (1989) 168 CLR 227

Mason and Saunders [1997] QCA 421; [1998] 2 Qd R 186

Truong CA No 438 of 1998, 19 February 1999; [1999] QCA 21

Staines CA No 462 of 1998, 10 August 1999; [1999] QCA 311

Walsh v Tattersall [1996] HCA 26; (1996) 70 ALJR 884

Director of Public Prosecutions (Queensland) for the respondent

[1] PINCUS JA: It is, perhaps, an indication of the unwillingness of drug dealers to give the authorities information about those with whom they have been dealing that we were referred to no authority in which the effect of co-operation of that kind was discussed. The only Queensland case which I have found containing such discussion is Demir (CA No 13 of 1995, 4 August 1995; [1995] QCA 332). Demir was a young heroin trafficker, on a smaller scale than this applicant; the circumstances of this applicant's case are fully explained in the reasons of Cullinane J. Demir was not an addict and had a number of previous convictions, including a drug offence. He was sentenced to 8 years imprisonment and recommended for immediate parole. The reason was that Demir had co-operated with the police, giving information about other drug offenders which proved useful. An Attorney's appeal resulted in a non-parole period being fixed at 15 months, in lieu of the recommendation for immediate parole. The head sentence of 8 years stood.

[2] In Ianculescu's case the extent of co-operation was considerable, but unlike Demir's it did not produce useful results. The possibility is that the results were not useful because they were not intended to be. However, there is no information before the Court, nor any submission made, which would support such a sceptical approach.

[3] During the submissions to the primary judge the following expression was used by counsel for the Crown:

" . . . the discounts of up to 50 per cent that are available under section 13A, it would seem on the authorities that he is not in that sort of league at all".

[4] The authorities to which counsel alluded were never identified, here or below. Section 9(2)(i) of the Penalties and Sentences Act 1992 certainly, and s 9(2)(p) probably, oblige the sentencing court to have regard to assistance given or to be given to law enforcement agencies in the investigation of other offences than that for which the offender is being sentenced. I refer to s 9(2)(p) because para (i) covers assistance given, not assistance to be given. The principal function of s 13A is to deal with the procedure to be followed in relation to a particular sort of co-operation, namely that which is the subject of an undertaking to co-operate in future. It does not say anything about the extent to which discounts should be given for such co-operation and does not say whether co-operation of that sort is to be treated more favourably, or less favourably, than other kinds. An offender who has actually given co-operation might well, depending on the circumstances, be entitled to a greater discount than a person who has merely promised to co-operate. I have dealt with this in an endeavour to suppress the thought, which might be prevalent, that there is some unique virtue in promised co-operation falling within s 13A; there is not.

[5] A difficulty attaching to decision of cases of this sort is that no detailed explanation of the nature and extent of the co-operation can be given. But one can identify relevant principles. The reasons given in Demir as well as those in Malvaso [1989] HCA 58; (1989) 168 CLR 227 at 129 and Thompson [1994] QCA 393; (1994) 76 ACrimR 75 are of assistance. It is enough to quote from the High Court case the passage relied on in Demir:

"It would be to close one's eyes to reality to fail to recognize that in areas of organized crime in this country, particularly in relation to drug offences, the difficulties of obtaining admissible evidence are such that it is imperative, in the public interest, that there be a general perception that the courts will extend a degree of leniency, which would otherwise be quite unjustified, to those who assist in the exposure and prosecution of corrupt officials and hidden organizers and financiers by the provision of significant and reliable evidence . . . Any person who provides genuine information to the authorities about the workings of organized crime exposes himself to the danger of retributive violence. That danger can be aggravated within a prison environment". (239)

[6] There are risks associated with granting excessive allowance for co-operation and these are explained in Demir. The countervailing risk is that discounts which are thought too niggardly will encourage offenders, and their advisers, to think that the reward for co-operation is not enough to justify the risk which co-operation is said to entail. It does not appear to me that the 10 year sentence imposed on this offender would be treated, by those who may be interested in the question, as convincing evidence that co-operation is worthwhile. Here the co-operation was quite extensive and although it was ineffective it does not appear to me that one should assume, against the applicant, that this was because it lacked genuineness.

[7] I would grant the application, allow the appeal, reduce the 10 year sentence imposed to 8 years and set aside the declaration made under Part 9A of the Penalties and Sentences Act 1992. I agree that the sentences in respect of supplying must be set aside, as proposed by Cullinane J.

[8] AMBROSE J: I agree with the order and reasons of my learned brother, Cullinane J.

[9] CULLINANE J: In this matter the applicant seeks leave to appeal against a sentence of imprisonment for 10 years for the offence of carrying on the business of trafficking in dangerous drugs. The drugs involved in this case were heroin, cocaine and methylamphetamine.

[10] He was also charged with some 14 counts of supplying a dangerous drug and one count of stealing with circumstances of aggravation. He was sentenced to imprisonment for five years on each of the supply counts and one year on the count of stealing. All of the sentences were ordered to be served concurrently. The applicant pleaded guilty to each of these charges.

[11] The facts of each of the supply counts were relied upon in support of the count of carrying on the business of trafficking in a dangerous drug.

[12] The indictment alleged in relation to the count of trafficking that the applicant carried on the business between 12 May 1996 and 29 November 1997.

[13] The counts of supply can be divided into two separate periods. These coincide with two separate operations carried out by authorities. The first operation was a Criminal Justice Commission (CJC) operation. On 13 May 1996 a covert operative met with the applicant who told him that he could supply heroin for $8,500 an ounce. Two supplies thereafter occurred, one on 15 May 1996 involving 25.315 grams of white powder containing 8.910 grams of pure heroin or about 35.2 per cent of the powder. An amount of $8,500 was paid. On 12 June 1996 another supply occurred during which $8,500 was exchanged for white powder containing heroin of about 14.4 per cent purity.

[14] The next supply occurred during the currency of a police operation and this took place on 20 May 1997 and involved the supply of heroin. Some eight further supplies of heroin to a covert operative occurred between 29 May 1997 and 8 September 1997 when, as I understand matters, the applicant was arrested. The purity of the heroin supplied during these transactions ranged between 14.4 and 43.9 per cent and totalled some 55.8 grams. There were two supplies of cocaine, one in late September and one in late November. The quantity and purity on the first occasion were 27.3 grams and 48.7 per cent respectively and the sum involved was $3,500. On 29 November 1997 some 27 grams having a purity of between 49 per cent and 63 per cent was supplied.

[15] The total amounts supplied for heroin was $52,500, for methylamphetamine $900 and for cocaine $3,500.

[16] The applicant had a criminal history. He had been convicted on 10 April 1989 of two offences of threatening to inflict serious injury for which he was fined. He was sentenced to six months imprisonment for possession of a drug of dependence at the Broadmeadows Magistrates Court in December 1989.

[17] There was no evidence that he had a drug addiction, although some passing reference was made to a gambling problem. There was a statement tendered which referred to his attendances at Relationship Australia between February 1998 and March 1999. All of these of course post date his arrest.

[18] Two matters were argued. Firstly, it was said the learned sentencing judge imposed a sentence which was manifestly excessive, because she chose too high a starting point prior to making allowance for the factors which are to be taken into account in the applicant's favour. These factors were a plea of guilty and some assistance to and co-operation with the authorities.

[19] The applicant it is clear provided some assistance to the authorities and this is dealt with in a document which was placed before the learned sentencing judge and ordered to be sealed. It was conceded that the case was not one in which the learned sentencing judge would have been justified in acting under s 13A of the Penalties and Sentences Act. Nonetheless, as appears from the sentencing remarks allowance was made for the matters reflected in that document. These are matters which in my view ought to have been taken into account, notwithstanding the qualifications and limitations referred to in the document.

[20] It should also be mentioned that before us counsel for the applicant suggested that the learned sentencing judge had made an error in one of her findings, something which it may be inferred played some role in the adoption of too high a starting point for the purposes of striking the appropriate sentence after making allowance for discounting factors.

[21] The finding appears at p 35 of the record. It was contended by counsel who appeared on behalf of the applicant at first instance that the court would not be justified in reaching a conclusion that the activity constituting the carrying on of the business of trafficking continued between June of 1996 after the last of the supplies to the CJC undercover operative and the first of the supplies to the police undercover operative in May 1997. Her Honour after setting out some factual matters concerning the supplies and the quantities and the levels of purity involved said:

"In my view, the only rational inference that can be drawn here, having regard to the admission inherent in the plea of guilty that you carried on the business between 12 May 1996 and 29 November 1997, is that the business continued in the period between June of 1996 and May of 1997."

[22] Before us it was suggested that the plea of guilty would not carry with it the implication that the business was carried on throughout the period alleged in the indictment and that the applicant would be guilty of an offence if at any time during that period for however limited a time the business was carried on.

[23] I do not think this is correct. The offence of trafficking is a continuing offence. I would adopt with respect what Ormiston J said in his judgment in the Victorian Court of Criminal Appeal in Re Giretti and Giretti (1986) 24 A Crim R 112 at 130:

"In my opinion, the continuous offence of trafficking under the 1962 Act cannot ordinarily be established by proving merely a number of transactions over a period of time; rather it is the inference to be drawn from those transactions which is critical to the jury's consideration whether the continuous offence of trafficking has been made out by proof of a trade or business of dealing in drugs. The relevant inference to be drawn for the purpose of this meaning of the word 'trafficking' must be that the accused is carrying on the trade or business of dealing in drugs, or, perhaps, is engaged on a regular and commercial basis in the transmission of drugs from source to consumer. That inference can be drawn from evidence of a sufficient number of transactions by way of sale, delivery or otherwise through the accused, together with such other evidence as will entitle the jury to reach the conclusion that the accused was engaged in the disposition or transmission of proscribed drugs to the extent necessary to establish that those transactions were on a regular and commercial basis during the period of the alleged offence. Where the allegation is one relating to the carrying on of a trade or business of dealing in drugs, it will normally be in respect of a continuous period, so the inference drawn must be in respect of that period, but failure to prove that the business was carried on precisely during the period alleged in the presentment will not deny the prosecution the right to a conviction, for allegations of time are ordinarily considered immaterial: cf Dossi (1918) 87 LJKB 1024; 13 CR. App.R.158."

[24] In my view the conclusion to be drawn from the applicant's plea of guilty is an acknowledgment that he carried on the business between the dates stipulated in the indictment. Such a conclusion would also be reasonably open as a matter of inference from the undisputed facts.

[25] We were referred to a number of comparable cases by the applicant and by the respondent. It can be said that the sentences imposed in the matters to which we were referred varied substantially and it is difficult to reconcile some of them.

[26] Both parties assumed the learned sentencing judge had adopted 12 or 13 years as a starting point and discounted for the plea and the applicant's co-operation to arrive at a sentence of 10 years. The applicant contends that such a starting point is too high.

[27] I think there is some validity in the argument that some care has to be taken so far as the use of comparative sentences are concerned where those sentences are of 10 years or more and involve recommendations for release on early parole, and are prior to the enactment of Pt 9A of the Penalties and Sentences Act 1992 as amended. The factors for which allowance might be made in an accused person's favour by the making of such a recommendation would of necessity have to be allowed since that change in the term imposed.

[28] The co-operation to which reference has already been made, whilst qualified and limited in its effect, was nonetheless not insignificant. Such activity is not often to be found in cases of this kind.

[29] Nonetheless, when regard is had to cases such as Tran (CA No 111 of 1996; judgment 20 May 1996, Re Buciuman, Buciuman and Dobrovolski CA Nos 342, 343 and 346 of 1996; judgment 3 October 1996 and Re Abdo CA No 186 of 1991; judgment 5 December 1991) as well as a number of other sentences to which we were referred, I am not persuaded that the applicant has demonstrated that the learned sentencing judge has imposed a sentence which falls outside the boundaries of a proper sentencing discretion. It may be accepted that the sentence falls towards the top of the range, but I am not convinced that the learned sentencing judge either adopted too high a starting point prior to making allowance for the factors to be taken into account on the applicant's behalf, or that she failed to make sufficient allowance for those factors. The sentence is not, in my view, manifestly excessive.

[30] The second matter concerns the application of Pt 9A of the Act to the circumstances of the continuing offence constituted by the count of carrying on the business of trafficking where part of the period falls before the relevant date (1 July 1997) and part subsequently. In this case about one-half of the supplies occurred before and one-half later.

[31] There are now a number of judgments in this Court, the effect of which is that Pt 9A does not apply to offences committed prior to 1 July 1997; see Inkerman (CA No 294 of 1997; judgment 29 August 1997), Mallard and White (CA No 450 and 452 of 1997; judgment 17 April 1998); [1998] QCA 59, R v Mason and Saunders [1997] QCA 421; (1998) 2 Qd R 186. Whilst reservations were expressed on this subject in Truong (CA No 438 of 1998; judgment 19 February 1999); [1999] QCA 21 the court was not prepared to depart from the view expressed in the earlier judgments. In Staines (CA No 462 of 1998; judgment 10 August 1999); [1999] QCA 311 the court reaffirmed what it had said in these judgments after referring to the doubts expressed in Truong.

[32] As well as some particular transitional provisions in the Penalties & Sentences Act these judgments were concerned with the effect of s 11(2) of the Criminal Code and s 20C(1) of the Acts Interpretations Act 1954. These provide respectively insofar as is relevant as follows:

"(2) If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorised by the former law, or to any greater extent than is authorised by the latter law."

(3) If an Act increases the maximum or minimum penalty, or the penalty, for an offence, the increase applies only to an offence committed after the Act commences."

[33] A reference might also be added of s 180 of the Penalties & Sentences Act which provides:

"180.(1) If a provision of this or another Act increases the sentence, or the maximum or minimum sentence, for an offence, the increase applies only to offences committed after the commencement of the provision.

(2) If a provision of this or another Act reduces the sentence, or the maximum or minimum sentence, for an offence, the reduction -

(a) extends to offences committed before the commencement of the provision; but

(b) does not affect any sentence imposed before the commencement."

[34] It was not sought to revisit the issue in this case and the correctness of these judgments was not challenged. The effect of the judgments is that Pt 9A punishes an offender to a greater extent than was authorized by the former law for the purposes of s 11(2) and increases the sentence for the purpose of s 20C(1).

[35] Here the issue is how these principles are to be applied where the offence is a continuing one with the conduct alleged in the indictment commencing before and continuing after 1 July 97.

[36] There does not appear to be any authority directly dealing with this matter. We were not referred to any. Some reference was made to continuous offences involving a breach of duty and the effect of a limitation period in such a case. However I do not think these are of any real assistance in the resolution of the issue before us.

[37] If the applicant is to avoid the consequences of Pt 9A it must be because he can take advantage of one or other of the provisions referred to.

[38] Continuous offences are as Ormiston J pointed out in Re Giretti and Giretti (supra) at p 129 "well known to law" although as Kirby J said in Walsh v Tattersall [1996] HCA 26; 70 ALJR 884 @ 901 where such offences are constituted by continuous activity they represent a special qualification to the application of the duplicity rule. See s 567(3) of the Criminal Code. Amongst the examples referred to by His Honour were offences of trafficking in drugs.

[39] Section 11(2) is expressed in terms which are not particularly apt to refer to a continuous offence constituted by a course of conduct. Presumably the section takes the form it does because of the definition of "offence" in s 2.

2. An act or omission which renders the person doing the act or making the omission liable to punishment is called an `offence'."

[40] Each of these provisions embody a legislative policy the effect of which is to exempt an offender from the consequences of increased penalties where the law changes after an offence has been committed (and in the case of s 22(2) and s 180 to also confer upon an offender the benefit of reduced sentences where a change of this kind occurs after an offence has been committed.)

[41] Although s 11(2) and s 20C(1) achieve the same effect they are expressed differently. These differences require the applicant here to adopt a somewhat inconsistent approach to each.

[42] In relation to s 11(2) (assuming that the course of conduct can, for the purposes of the section, be regarded as being constituted by a series of acts) the applicant's argument is that the offence should be regarded as one which occurred prior to 1 July 1997 because some of the conduct occurred prior to that date.

[43] When addressing s 20C(i) the applicant has to contend that the offence is not one which was committed after 1 July 1997 notwithstanding that some of the conduct concerned took place after that date.

[44] In my view a continuing offence constituted by a course of conduct such as the count of carrying on the business of unlawfully trafficking in a dangerous drug must be regarded as an offence committed throughout the period concerned. The consequence is that Pt 9A of the Penalties and Sentences Act applies in this case.

[45] Subject to the next matter the application should be refused.

[46] The trafficking the subject of count 1, consisted of the supplies, the subject of counts 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15. It was therefore inappropriate to impose sentences in respect of the convictions on the supply counts_: R v Elhusseini_ [1988] 2 Qd R 442 at 455; R v Kiripatea [1991] 2 Qd R 686 at 701. I would therefore set aside the sentences on each of counts 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15.