R v Matasaru [2004] QCA 404

Judgment (32 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] McPHERSON JA: I agree with the reasons of Jerrard JA and with his Honour's conclusion.

[3]

[3] JERRARD JA: For Mr Matasaru to succeed in this appeal it will be necessary for the court to conclude that its earlier decisions in R v Ianculescu [1999] QCA 439; [2000] 2 Qd R 521, and R v H [2001] QCA 167, which followed it, were wrong in law and should be overruled. Alternatively, he has to persuade the court that he should be permitted to set aside certain of the pleas of guilty entered by him in 1998, although (as a self representing litigant) he has not put his appeal in either of those ways.

[4]

[4] On 30 November 1998 Mr Matasaru pleaded guilty to 10 counts of having supplied heroin to others, one count of possession of heroin in a quantity exceeding 200g, one count of possessing a set of scales used in connection with unlawfully supplying a dangerous drug, one count of receiving a quantity of sewing machines knowing it to have been obtained from trafficking a dangerous drug, and one count of defrauding a Commonwealth department. On that date he pleaded not guilty to a charge of carrying on the business of unlawfully trafficking in the dangerous drug heroin, allegedly occurring between 5 August 1994 and 6 September 1997. On 23 July 1999 the indictment presented against him was amended, and on that day he pleaded guilty to a count of having carried on the business of unlawfully trafficking in heroin between 3 March 1997 and 6 September 1997, and repeated his plea of guilty to having had possession of the dangerous drug heroin (on 5 September 1997); but the amended allegation thus admitted was that the quantity of the drug exceeded two grams; and he repeated his plea of guilty to having defrauded a department of the Commonwealth, that offence being admitted to have occurred between 3 March 1997 and 9 September 1997.

[5]

[5] The dates between which he admitted trafficking in heroin are central to these appeal proceedings. On 1 July 1997 Part 9A of the Penalties and Sentences Act 1992 came into force, with the provisions contained therein having the effect that the offence of carrying on the business of trafficking in a dangerous drug became a serious violent offence; one consequence of that, now provided for by s 135(2)(c) of the Corrective Services Act 2000, is that a prisoner serving a period of imprisonment for a serious violent offence must serve 80 per cent of that period before being eligible for release on parole, or as it is now more grandly described, "post-prison community based release". The Act introducing Part 9A of the P_enalties and Sentences Act,_ (the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997, Act No 4 of 1997) inserted a provision into the then Corrective Services Act 1988 having the same effect as s 135(2)(c) of the Corrective Services Act 2000 now has.

[6]

[6] The offences of supply admitted by Mr Matasaru's pleas made on 30 November 1998 were mostly committed before 1 July 1997. He pleaded to seven separate counts of having supplied heroin to Lisa Poole (an undercover police officer), and those offences were committed on various dates on and from 19 March 1997 through to and on 8 May 1997. However, he also pleaded guilty to a count of having supplied heroin to "another" between 31 July 1997 and 5 September 1997 (he was arrested on the evening of that date); to a count of having supplied heroin to "another" on 4 September 1997; and a count of having supplied heroin to a Leigh Bourke on 5 September 1997. The offences of possession of heroin and possession of the scales were each admitted to have occurred on 5 September 1997.

[7]

[7] It took a considerable time for Mr Matasaru's sentence to be finally dealt with by this court. An agreed statement of facts ("Exhibit 2" at his sentence) was finally arrived at between the Crown's legal representatives and his, in which Mr Matasaru admitted to having sold heroin to a person described therein as "Sarah" on 1 September 1997, and again 4 September 1997 ("Sarah" is very likely the "another" to whom sales were admitted by his pleas). Despite the facts being agreed, in sentencing proceedings which had commenced on 5 January 2000 Mr Matasaru queried the described and apparently agreed weight of the pure heroin of which he had admitted being found in possession on 5 September 1997. Exhibit 2 had described the powder found as having a total weight of 231.2 grams, containing 149.3 grams of pure heroin. Mr Matasaru challenged that, by the statement:

[8]

"I don't agree because I don't know who weighed it. Who come with the total amount of 149 grams?"

[9]

[8] That resulted in the proceedings being adjourned to settle the issue of actual weight of pure heroin found, and on 20 January 2000 the counsel and solicitor who had appeared on 5 January 2000 were granted leave to withdraw, their instructions having been withdrawn the day before. On 21 January 2000 amendments were made to those agreed matters of fact, they having been checked, which amendments were actually adverse to Mr Matasaru; the actual weight of powder found at his premises was 241.2 grams containing 149.6 grams, of pure heroin. The weight was no longer an issue.

[10]

[9] I have gone into this amount of detail about that part of the proceedings because, while Mr Matasaru thereby made a specific challenge to one portion of Exhibit 2 at that time, he did not suggest then that he in any way challenged the allegations in that statement of agreed facts which read as follows, and to which the learned judge made reference when sentencing Mr Matasaru:

[11]

"The accused was also a regular supplier of heroin to a de facto couple who were heroin addicts - for current purposes they need be identified only as "Leigh" and "Sarah". "Sarah" was, at the relevant time, an unemployed mother of 3 in receipt of a parents pension. On Monday 1 September 1997 she met the accused at the Pizza Hut car park at Loganholme and purchased $100.00 worth of heroin from him. At that stage she did not have any money to pay for the heroin so she gave him her Westpac Flexi card and pin number. She agreed with him that if she had not paid him by the following Thursday, then he could take the money straight out of her bank account when her family allowance cheque was banked into it. This is in fact what occurred. Sarah was a regular purchaser of heroin from the accused and in fact purchased more from him on 4 September 1997, which was the night before his residence was searched by Police."

[12]

[10] That passage led to the sentencing judge remarking:

[13]

"It is a vile trade. People like you who sell heroin deal in human misery. One example is enough to make the point. One of your customers was a woman, a single mother with two children to support - three, I think, children to support. In September 1997 she met you to buy $100 worth of heroin. She did not have the money. She arranged with you to pay the money over time. You gave her credit for a short period. But on the basis that if she could not make the payment you would be entitled to take the money from her bank account when her family allowance cheque was put into the account. In other words, you took money from children whose mother was an addict and whose only means of support was the meagre allowance from the government. Those children went without so you could make a profit from selling heroin."

[14]

The learned judge then remarked that the appellant himself lived a comfortable lifestyle, owning a home, and having an investment house in addition, expensive furnishings, a good quality motor car, and his wife and child were currently on a visit to the United States.

[15]

[11] The sentencing judge imposed a term of 12 years imprisonment for the offence of trafficking in heroin, stating when passing the sentence that it would carry with it a declaration that Mr Matasaru had been convicted of a serious violent offence. Assuming that Part 9A did apply to Mr Matasaru's offence of trafficking in heroin, the learned judge's sentencing remark was entirely accurate. The effect of Part 9A was and is that an offender sentenced to 10 or more years imprisonment for trafficking in dangerous drugs has been convicted of a serious violent offence (s 161A of the Penalties and Sentences Act). There had been discussion before the learned judge as to whether Part 9A did apply to Mr Matasaru's trafficking offence, and both counsel had submitted that it did, with each of them drawing to the judge's attention this court's then recent decision in R v Ianculescu.

[16]

[12] In that matter that applicant had been charged with 14 counts of supplying a dangerous drug and one count of trafficking, and the indictment in that matter alleged the trafficking occurred between 12 May 1996 and 29 November 1997. The separate offences of supply which evidence the trafficking had occurred both before and after 1 July 1997. This court found that the trafficking offence committed by Mr Ianculescu was a continuing offence, committed throughout the period alleged in the indictment, and therefore Part 9A did apply to him. The Crown submitted in this appellant's sentencing proceedings that trafficking was a serious violent offence, and that the sentence should be more than 10 years; and the written submission of Mr Matasaru's own counsel specifically conceded that the provisions of Part 9A applied, citing Ianculescu, and apparently doing so in an endeavour to persuade the sentencing judge to be as merciful as possible.

[17]

[13] Mr Matasaru appealed against the sentence of 12 years imprisonment, and that appeal was heard on 19 June 2000 (R v Matasaru [2000] QCA 246) and dismissed. The judgment of Davies JA includes the comment that it was plain from the information put before the learned sentencing judge that Mr Matasaru was at all relevant times a substantial dealer in heroin, not solely or even partly to sustain a heroin habit, but solely for profit, and that very little could be said on his behalf. This court held the sentence was not manifestly excessive. Nevertheless on 14 May 2004 the original sentencing judge heard an application Mr Matasaru brought pursuant to s 188 of the Penalties and Sentences Act, complaining that the sentencing judge had imposed a sentence not in accordance with the law. What Mr Matasaru said then to the learned judge (Mr Matasaru was representing himself then as well) was that:

[18]

"The problem is the dealing which I have with the undercover was before the act came in. The other dealings which I have one or two or three charges is dealings which is actually no charges on that. Or supplying to an unknown person at unknown location."

[19]

"I didn't know what to do, to plead guilty or what to do but I was instructed by my solicitors to plead guilty for all the charges."

[20]

A little later he added, regarding the offences of supply admitted by his pleas and which occurred after 1 July 1997, that:

[21]

"It was never proven. I just pled guilty rather to get rid of the charges."

[22]

[14] I consider Mr Matasaru should be understood as either seeking to set aside his pleas to supplying persons other than the police officer, or else seeking to challenge the result in the decision in Ianculescu. As to the former application, he did plead guilty to those charges in November 1998 and before he pleaded guilty to the trafficking charge, and probably before the agreed statement of facts (exhibit 2 before the learned sentencing judge) was settled. But the date of those charges were stated in the indictment and put to him when he pleaded guilty, and the agreed statement of facts which contained allegations about supply of heroin after 1 July 1997 was said by the Crown Counsel on 5 January 2000 to have been the subject of lengthy negotiations between that Crown Counsel and the defence. On 23 July 1999 that same Crown Counsel had said then, when the final pleas were entered, that "We have been negotiating steadily for some time already and we anticipate the exchange of written submissions and identification of any issues that need to be resolved." Those observations by the Crown Counsel in 1999 and January 2000 were supported by the statements made by counsel for Mr Matasaru, on 5 January 2000, (made in response to questions from the bench after the court was told that there was a dispute about the quantum of drugs actually found at the premises) to the effect that the agreed statement of facts was made with Mr Matasaru's authority and knowledge. No complaint was made at the appeal heard in June 2000 about the remarks by the learned sentencing judge which referred to the purchaser "Sarah" and her circumstances.

[23]

[15] The complaint Mr Matasaru now makes about having pleaded guilty then as a matter of convenience should be regarded simply as an opportunistic claim now made in an endeavour to escape the provisions of Part 9A, and should be rejected. He knew the prosecution alleged the sale of heroin to the two parents "Sarah" and "Leigh", and alleged specific details about payment for "Sarah's" heroin. Those acts of supply were the subject of specific charges which he admitted. Mr Matasaru also suggested on his s 188 application that there was no evidence he had continued to traffic in heroin after his last sale to the under-cover officer. But he pleaded guilty to trafficking after 1 July 1997, and even if he only made three more sales in toto after 30 June 1997, (two to "Sarah" and one to "Leigh"), and thus even if those sales the prosecution knew of were the only ones which happened, that would not mean he was not carrying on the business of trafficking in heroin after 1 July 1997. A business can be very unrewarding, with very few customers, but still be carried on. No miscarriage of justice is shown by the fact that those pleas of guilty were accepted and acted upon by the court.[1]

[24]

[16] Regarding the alternative challenge he must make, to the decision in Ianculescu, the position is as follows. Section 11(2) of the Criminal Code provides:

[25]

"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."

[26]

Section 20C(3) of the Acts Interpretation Act 1954 provides that if an Act increased the maximum or minimum penalty, or the penalty for an offence, the increase applies only to an offence committed after the Act commences. Neither of those provisions makes easy or specific provision for the situation where there is a continuing offence, although that is a well understood concept.

[27]

[17] After the introduction of Part 9A of the Penalties and Sentences Act, this court held in a series of decisions that its provisions do not apply to offences which were committed before it was introduced. One authoritative example is R v Mason and Saunders [1997] QCA 421; [1998] 2 Qd R 186 at 190. This court had held both before and after that decision that a recommendation that a prisoner be eligible for parole at a date earlier than would otherwise apply had effect as a reduction of the sentence imposed on the prisoner, within the meaning of s 13 of the Penalties and Sentences Act. It so held in R v Corrigan [1993] QCA 417; [1994] 2 Qd R 415 at 416 and 419, and confirmed that view in R v Maxfield [2002] 1 Qd R 417 at 423. In R v Mason and Saunders the court held, consistently with those decisions, that Part 9A, by removing the prospects of release before 80 per cent of the period of imprisonment was served, both punished an offender to a greater extent than was authorised by the law prior to its introduction and thus the "former" law within the meaning of s 11(2) of the and also increased the penalty for the offence within the meaning of of the .

[28]

[18] The court was only called upon to consider the application of Part 9A to a continuing offence when it heard the appeal in R v Ianculescu. That applicant's argument was that he was being sentenced more harshly than allowed by the law applicable at the time when at least some of the offending behaviour he engaged in occurred, should he be subjected to Part 9A. This court held, and I respectfully agree, that a continuing offence constituted by a course of conduct such as a count of carrying on the business of unlawfully trafficking in a dangerous drug must be regarded as an offence committed throughout the period alleged in the indictment (assuming that the evidence or information put before the sentencing court generally supported that), and that in consequence Part 9A did apply to that offence. In terms of s 11(2) the offence, where it had been engaged in both before and after 1 July 1997 and had continued well past that date, could not be regarded as one which had occurred prior to 1 July 1997; in terms of s 20C(3) it was an offence which was committed after 1 July 1997. Neither Mr Ianculescu nor Mr Matasaru stopped carrying on the business before or on 1 July 1997 and each carried on that business for a number of months after that date. I respectfully agree that it follows Part 9A applies.

[29]

[19] Even if I did not so agree, the decision has specifically been followed and approved in R v H [2001] QCA 167, and applied therein to an offence of maintaining a sexual relationship with a child both before and after the application date of Part 9A. Thomas JA, giving the judgment of the court in that matter, said (at page 8) that that applicant, by continuing to offend after 1 July, became subject to the Part 9A regime. That decision endorses the view taken in Ianculescu.

[30]

[20] It follows that the learned sentencing judge was correct in May 2004 when the judge dismissed the application brought pursuant to s 188 to reopen the sentence and brought on the basis that the declaration as a serious violent offence was unlawfully made; and correct in holding that the decision in R v Ianculescu applied. I consider the appellant is entitled to appeal against that decision, but the appeal must be dismissed. He is entitled to appeal because the terms of s 188 itself show that a complaint can be made under that section even after an appeal; and therefore the ordinarily applying rule has no application. That rule, recently restated in R v Alexanderson and Ors [2001] QCA 400, is that pursuant to s 668 of the Criminal Code a convicted person has a right of appeal against conviction but once that has been unsuccessful then any right of appeal is exhausted and such person may not pursue a second appeal on the merits (except where s 672A may apply).

[31]

[22] WHITE J: I have read the reasons for decision of Jerrard JA and agree with his Honour for the reasons that he gives that this appeal should be dismissed.

[32]

[1] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132

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