R v Kovacs [2009] QCA 52

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] KEANE JA: On 16 October 2008 the applicant was convicted upon the verdict of a jury of one count of supplying the dangerous drug cocaine. He had earlier pleaded guilty to one count of unlawful possession of the dangerous drug heroin in a quantity in excess of two grams and one count of unlawful possession of the dangerous drug cannabis sativa. The applicant was sentenced to six years imprisonment for the offence of supplying cocaine and to concurrent terms of three years imprisonment in respect of the other offences. A period of 15 days was declared as pre-sentence custody. The applicant's parole eligibility date was set at

[3]

[2] A notice of appeal was filed in relation to the conviction and sentence in respect of the offence of supplying cocaine. In that notice of appeal, no basis was articulated for challenging the sentence if the conviction were to be upheld. The only basis on which the conviction was challenged was stated as follows:

[4]

"the conviction be set aside and new trial ordered on the grounds that fresh evidence is now available namely a statement from Ion Arzoc who claims he was the person who had possession and control of the said drugs and that there is a significant possibility that a jury acting reasonably would acquit the appellant."

[5]

[3] The appeal against conviction has been abandoned, but the applicant has pursued his application for leave to appeal against the severity of his sentence for the cocaine offence.

[6]

[4] The offence of supplying cocaine was alleged by the Crown to have occurred on

[7]

5 July 2006. Ion Arjoc was the applicant's co-offender in respect of this offence. Arjoc pleaded guilty and was sentenced to five years imprisonment, suspended after two years for an operational period of five years.

[8]

[5] The case against the applicant was that the applicant provided a brick of high level purity cocaine weighing approximately 210 grams to Arjoc which Arjoc passed on to others for the purpose of supplying to a covert police operative ("CPO"). The price to the CPO was to be $56,000, but he rejected the cocaine. Subsequently the brick of cocaine was returned to Arjoc and then by him back to the applicant. The Crown case was that the applicant supplied the cocaine to Arjoc from his, that is the accused's, possession.

[9]

[6] The heroin and cannabis offences to which the applicant pleaded guilty occurred on 6 March 2007. Police executed a search warrant at the applicant's home. A total of 58.052 grams of powder and paste containing 7.962 grams of heroin was found. Police also found clip seal bags, icing sugar (a cutting agent), digital scales and $19,860 in cash. A small quantity of cannabis was also found. After a contest at the sentencing hearing, the learned sentencing judge found that the heroin was held partly for commercial purposes and partly for the applicant's personal consumption.

[10]

[7] The applicant was 44 years old at the time of the offence, and 46 years old at the date of sentence.

[11]

[8] The applicant's criminal history is significant. On 17 June 1991 he was sentenced to six years imprisonment with a non-parole period of four and a half years for two offences of supplying a prohibited drug. On 13 September 1996 he was sentenced to three years periodic detention for supplying heroin.

[12]

[9] The applicant has a long-term problem with heroin use. The learned sentencing judge described the problem as a serious addiction to heroin as well as to alcohol. Her Honour noted that the applicant had been relatively drug free for some time.

[13]

[10] A psychologist's opinion was to the effect that the applicant suffers from a major depressive disorder. He has previously attempted suicide.

[14]

[11] The applicant was allowed while on bail to return to Romania to be married after which he returned to Queensland.

[15]

[12] The maximum penalty which might have been imposed on the applicant was

[16]

[13] As has been mentioned, before the learned sentencing judge there was a contest as to the purpose for which the applicant was in possession of the heroin. Her Honour found that the applicant was intending to use some of it for his own consumption and some for sale for commercial gain.

[17]

[14] There was evidence before the learned sentencing judge of substantial cooperation with the authorities. The nature and extent of that cooperation was dealt with in an exhibit which was sealed. It is not necessary or desirable to refer in detail to this evidence. It is sufficient to say that the applicant's cooperation is regarded as valuable by the authorities. The learned sentencing judge adverted to the need to recognise this cooperation "in a meaningful way in the sentence".

[18]

[15] Counsel for the prosecution submitted that the head sentence should be seven years with parole eligibility set at two and a half years. Counsel for the applicant argued for a head sentence of five years suspended after two years.

[19]

[16] The applicant submits that the sentence was manifestly excessive having regard to:

[20]

(a) the circumstance that no supply of cocaine to a consumer actually occurred;

[21]

(b) the lesser sentence imposed on the applicant's co-offender; and

[22]

(c) the argument that no sufficient allowance was made for his cooperation with the authorities.

[23]

[17] That there was not actual supply to an ultimate consumer seems to be of little significance given that the gravamen of the applicant's criminality involved his active participation in the enterprise of distributing dangerous drugs. That the sale did not proceed was in no way due to any change of heart on the applicant's part.

[24]

[18] The circumstance that the sale was not ultimately completed does not mean that considerations of general deterrence were not important in this case. The applicant's act of supplying cocaine to his co-offender was complete. He had fulfilled his intended role in the drug distribution network.

[25]

[19] The sentence to be imposed on the applicant was required to provide general deterrence of participation in the criminal enterprise of cocaine distribution. Bearing in mind as well the applicant's criminal history, the court was obliged to impose a substantial sentence informed by considerations of personal deterrence as well.

[26]

[20] In R v Cooney,[1] this Court upheld a sentence of eight and a half years imprisonment with a recommendation for parole after three and a half years in respect of a supply of 900 grams of powder containing a little over 640 grams of pure cocaine. The offender was a 30 year old drug courier who was himself a cocaine addict. He had one 10 year old conviction for supplying cannabis for which he had been sentenced to 12 months imprisonment. The offender pleaded guilty to the charge. It may be noted that the quantity of drugs supplied was much greater in R v Cooney. The applicant in this case is not entitled to the benefit of a plea of guilty in respect of the cocaine offence, and his criminal history is worse.

[27]

[21] To the extent that the applicant seeks to support his contention that the sentence which was imposed on him was manifestly excessive by reference to the decision of this Court in R v Glynn,[2] in R v Cooney, the President noted that "Glynn's case is now over 14 years old and does not reflect the more recent increase in penalties imposed by courts on those who deal commercially in large quantities of prohibited addictive drugs."

[28]

[22] The applicant advanced the argument that, by virtue of the sentence imposed on his co-accused Arjoc, the applicant has a justifiable sense of grievance in relation to the severity of his sentence.[3] On behalf of the applicant it is said that Arjoc was not a user of cocaine, did not have the unfortunate psychological or psychiatric history of the applicant, and had not offered the same level of cooperation as the applicant. Further, Arjoc had committed a second offence of supplying cocaine.

[29]

[23] On the other hand, Arjoc pleaded guilty to the offence. He was thus entitled to a substantial benefit to which the applicant was not entitled.

[30]

[24] It is also important to appreciate that the sentences imposed on Arjoc expressly recognised that he had substantially rehabilitated himself. In this regard the learned sentencing judge said:

[31]

"You were not a user of cocaine. You were a mature man, and it is clear from your criminal history that you could have been under no illusion at all as to the criminal nature of your conduct and the likely consequences if it were discovered. It was very serious conduct with potential to do great harm to the community at large. It is to your credit that you ceased involvement with drug dealing without police intervention. Indeed, the police operation continued for six months of

[32]

surveillance following these two offences and no evidence of your further involvement was unearthed.

[33]

Two years have now passed since these offences and you have distanced yourself from the other players in the events.

[34]

These matters are relevant in that they indicate you have started on the path to rehabilitation and leading a law abiding existence."

[35]

[25] The applicant was not in a position to show that he had "ceased [his] involvement in drug dealing without police intervention", and that he had rehabilitated himself. The heroin offence, which had a commercial element, was committed in March 2007.

[36]

[26] For these reasons I conclude that the applicant has no basis for a legitimate sense of grievance that Arjoc's sentence was less severe than that imposed on the applicant.

[37]

[27] I have been more troubled by the applicant's contention that the sentence does not sufficiently recognise the benefit due to the applicant by virtue of his cooperation with the authorities. The learned sentencing judge's reasons do not disclose what benefit the applicant was accorded by virtue of his cooperation. In R v Thompson,[4] this Court observed that "it is better to make clear just how much [the cooperation], considered by itself, has saved the applicant." Furthermore, in R v Thompson, this Court recognised that heavy discounts may be granted for cooperation with the authorities depending on the "magnitude of the offender's co-operation".

[38]

[28] It must be accepted that the applicant's cooperation with the authorities is valuable, but the real extent of that value is hard to gauge. The submission of the respondent in this Court was that when one bears in mind that the sentence was imposed after a trial so that the applicant was not entitled to the benefit of a plea of guilty, it can be seen that the sentence did give meaningful recognition to the applicant's cooperation with the authorities both in relation to the length of the head sentence and in the fixing of a parole eligibility date six months earlier than would have been the case were it not for her Honour's recommendation. There is force in this submission.

[39]

[29] While the absence of any express statement in her Honour's sentencing remarks of the extent of the benefit for cooperation is a cause for some concern, bearing in mind the need for transparency in sentencing and the importance of the public policy of encouraging cooperation by offenders with the authorities, I am satisfied that the applicant has received adequate recognition for his cooperation.

[40]

[30] That this is so can be illustrated, I think, by assuming a notional head sentence of nine years imprisonment. If one were then to reduce it by one-third, one would reach a level of head sentence which could be further moderated having regard to the applicant's cooperation with the authorities and other mitigating factors such as the applicant's mental health problems. The applicant, by virtue of his psychiatric difficulties, is not a suitable candidate for a suspended sentence: a period of parole is obviously important for the applicant's rehabilitation. Any further moderation of the sentence could therefore only include a provision for early consideration for parole. Without any such recommendation, the applicant would become eligible for consideration for parole after serving three years of his sentence. In moderating the sentence by reference to eligibility for consideration for parole, the sentencing court would need to balance the desirability of giving the applicant a real incentive to continue his cooperation with the public interest in proper punishment of the applicant's criminal conduct. A recommendation that the applicant be eligible for consideration for parole after two and a half years further moderates the applicant's head sentence in a substantial way and gives the applicant incentive to continue his cooperation with the authorities, while at the same time making it clear that the serious criminality of the applicant's involvement in cocaine distribution is such as to attract a substantial period in actual custody.

[41]

[31] When one views the sentence imposed in the light of this exercise, it becomes difficult to conclude that the applicant's cooperation with the authorities did warrant further moderation of his sentence for what is, after all, a very serious crime.

[42]

[32] In the upshot I am not persuaded that the sentence imposed on the applicant is excessive.

[43]

[33] I would refuse the application for leave to appeal against sentence.

[44]

[34] MUIR JA: I agree with the reasons of Keane JA and with the order he proposes.

[45]

[35] FRASER JA: I agree with the order proposed by Keane JA and with his Honour's reasons.

[46]

[1] [2004] QCA 244.

[47]

[2] Unreported, Court of Criminal Appeal, CA No 28 of 1990, 10 April 1990.

[48]

[3] Cf Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.

[49]

[4] [1994] QCA 393; (1994) 76 A Crim R 75 at 79.

At a glance

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Judgment (49 paragraphs)

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Cases Cited (1)