_R v Omer-Noori_

Judgment (22 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] JERRARD JA: I agree with the reasons and order of Holmes JA.

[3]

[2] HOLMES JA: The applicant for leave to appeal against sentence pleaded guilty to one count of carrying on the business of unlawfully trafficking in dangerous drugs prescribed in Schedules 1 and 2 of the Drugs Misuse Act 1986 (Qld). He was sentenced to 13 years imprisonment and the conviction was declared to be a conviction of a serious violent offence. Four days already spent in custody was declared.

[4]

[3] The trafficking was alleged to have occurred between 14 August 2003 and 13 April 2004, although the particulars do not suggest any activity after 28 February. At the sentence there was a contest as to whether the Schedule 1 drugs trafficked in were heroin, methylamphetamine and cocaine (as advanced by the Crown) or methylamphetamine only. (The Schedule 2 drug was admitted to be ecstasy.) What was in dispute was whether discussions in intercepted telephone conversations related to heroin or cocaine or, instead, to methylamphetamine or ecstasy, or, perhaps, to no drug at all. The learned sentencing judge found against the applicant in each instance, concluding that some of the dealings involved heroin and cocaine.

[5]

[4] The particulars of the count identified a number of occasions on which the applicant was recorded discussing transactions with suppliers and customers. Some of those instances were as follows: in August 2003 he was recorded negotiating with a contact to buy 5 units of methylamphetamine for sale at $3,500 per unit. In early September 2003 he negotiated to buy 5000 ecstasy tablets for $95,000; in the course of that negotiation he also inquired about supplies of methylamphetamine, which he said he needed "tons of". At about the same time, he was recorded offering 1,000 ecstasy pills to a customer. In the event he obtained 3,400 tablets and was arrested in possession of them and charged; the supplier of the ecstasy tablets was apprehended with $64,000 in cash. On bail, the applicant continued to carry on his business. Interspersed with those events were other conversations about recovery of drug debts, availability of cocaine and purchase of methylamphetamine.

[6]

[5] Throughout November and December 2003, the applicant was recorded offering to sell ecstasy tablets and cocaine. At various stages between early December 2003 and early February 2004, the recordings indicate that he was selling cocaine an ounce at a time, usually for $5,000. In December 2003, he contributed $15,000 to a proposed importation of cocaine from Lebanon, in anticipation of making a profit of $45,000. The importation failed when the courier was apprehended carrying a net weight of pure cocaine of 147.6 grams. In January 2004, the applicant obtained 500 ecstasy pills. Twice subsequently he was recorded offering to sell ecstasy pills in quantities of 1,000 at a time.

[7]

[6] In February 2004 the applicant purchased 12½ ounces of heroin for $70,500 from a man named Slivo. A significant portion was returned because of its poor quality; it had made some of the ultimate consumers ill enough to end up in hospital. In late February 2004 the applicant negotiated to buy methylamphetamine from a supplier for $107,000. There is nothing to show that the transaction actually proceeded when his offer was not accepted. Again there are various other conversations over this period dealing with drug availability and prices. There are no transactions identified after 28 February. On that date the defective heroin was returned to Slivo, who was arrested with it on the same day. The obvious inference is that the applicant was deterred by that event from dealing thereafter.

[8]

[7] The Crown did not attempt to put a figure on the applicant's profits. He had spoken of making a profit of several hundred dollars per transaction on his cocaine dealing and between $1,000 and $3,000 on each sale of ecstasy pills. Some of the transactions were of the order of tens of thousands of dollars. Although the applicant owned a house and relatively expensive four wheel drive vehicle, there was no other evidence of conspicuous consumption.

[9]

[8] The applicant was born in 1972 in Iraq. He had lived in Australia from the age of 20. He was married, without children, and had worked as a painter. He had some minor, non-drug-related criminal history. It was not suggested that he suffered from any drug addiction. Defence counsel at the sentence submitted that the applicant's history of involvement with drugs began when he lost money at a casino and was offered a sum to collect and deliver some tablets. The applicant had last gambled in September 2003. The plea of guilty had come late, in the week before the matter was listed for trial. His counsel contended that it had at least been in time to save the expense of witnesses being brought to Brisbane for the trial.

[10]

[9] The learned sentencing judge referred to some examples of the applicant's transactions and observed that the business was already established by "April 2003". Taken in context with an earlier discussion with counsel, it is clear that he meant August of 2003, as the commencement of the period covered by the count. The judge found that the applicant was a wholesaler dealing with as much of the drugs in question as he could acquire; that the quantities were large; and that the level of business activity was substantial. He noted that the applicant had continued in the business of trafficking although he had been arrested and admitted to bail in September 2003. His Honour expressed the view that, had there been a trial, a sentence of not less than 15 years imprisonment would have been appropriate. The applicant was entitled to a more lenient sentence because of his plea of guilty, but the discount was not as great as it would have been had it been timely and had the sentence been uncontested.

[11]

[10] Counsel for the applicant initially advanced, but withdrew, arguments that the learned sentencing judge had erred in treating the number and nature of the Schedule 1 drugs as relevant and in having regard to the fact that the drugs were imported. As to the second, it was accepted that the applicant's involvement in the attempted importation was properly, and by agreement, made a particular of the trafficking count rather than a separate offence. But these complaints were maintained: the sentencing judge had erred in adverting to the fact that the business was established before the date on which the charges commenced; and he had erred in giving a lesser reduction in sentence for the plea because of the contested hearing. The time spent on the contest, it was submitted, was insignificant and no victim had been put through the trauma of giving evidence. Finally, it was said that the applicant was still a young man with a good work record and became involved in drug trafficking by virtue of a gambling addiction, the inference being that the sentencing judge either overlooked or gave insufficient weight to those factors.

[12]

[11] Counsel for the applicant referred principally to three cases, R v George[1], R v Bradforth[2] and R v Raciti[3]. The Crown added a fourth, R v Matasaru[4]. The first in time is Matasaru. The applicant in that case was 47 years of age, without relevant prior convictions. He pleaded guilty to trafficking heroin and was sentenced to 12 years imprisonment. He had made 10 supplies, totalling 49 grams of pure heroin, to an undercover police officer for $28,000. He was found to have trafficked for gain and to pay off suppliers. The Court of Appeal described the applicant in that case as a substantial dealer in heroin for profit. Although he had pleaded guilty, the Crown case was strong and he had made no attempt to assist the police. The Court concluded that comparable cases supported the sentence.

[13]

[12] In R v George, the applicant was sentenced to 14 years imprisonment on a count of trafficking in dangerous drugs over an 8½ month period. There were six counts of supply; of particular importance were four transactions in which he had sold substantial amounts of heroin (251 grams in total, which was 178 grams pure), and cocaine (131 grams, 84 grams pure) to an undercover officer. The 49 year old applicant had previous convictions for drug offences. It was not possible to establish with any precision what his profits were, but the sentencing judge referred to him as making a "handsome living". He reduced the sentence he would have otherwise imposed of 16 years imprisonment to one of 14 years in recognition of the applicant's plea of guilty. That sentence was upheld on appeal.

[14]

[13] In R v Bradforth the applicant pleaded guilty to one count of trafficking in cocaine, ecstasy and methylamphetamine over a year and was sentenced to 12 years imprisonment. On one occasion he was in possession (through an associate) of 1,386 ecstasy tablets, 63 grams of cocaine and 7 grams of methylamphetamine, all duly separated into 82 clip seal plastic bags; five mobile phones; and a book with what were apparently the names of 10 customers who owed money (including one with a debt of $7,740). On another occasion, while on bail, he was found with 85 grams of gammahydroxybutyric acid, half a gram of cocaine, 22 grams of ecstasy and a set of scales. His associate told police that the applicant had been selling drugs for 12 months, with sufficient success to give up his day job a month or so before his apprehension. He was 26 and had been convicted of some offences of dishonesty, but none relating to drugs. He had been on remand for 9 months, which could not be declared. There was no evidence of substantial profit; while he seems, like the present applicant, to have been a wholesaler, there were no large-scale transactions and there was some indication that he, unlike this applicant, was selling to feed a drug addiction. The Court concluded that the sentence was manifestly excessive and that a sentence of 10 years was appropriate to give recognition to the early plea of guilty and the nine months spent on remand.

[15]

[14] In R v Raciti the applicant pleaded guilty to trafficking in ecstasy, methylamphetamine and cocaine over a four month period as well as some possession charges and was sentenced to 11 years imprisonment. Ecstasy, a Schedule 2 drug, was the predominant drug in what could be established of his dealings. The applicant's telephone calls had been intercepted; he was detected in two significant purchases of ecstasy tablets, one of 6,000 tablets for $117,000, and the other of 5,000 tablets for $50,000. The sentencing judge in that case was found to have erred in failing to impose any sentence on the possession charges. The Court of Appeal, therefore, regarded itself as required to re-sentence. The applicant was middle-aged, had previous drug convictions and had committed a trafficking offence while on probation. He had, however, undertaken drug detoxification in an attempt at rehabilitation; it seems implicit in that reference that he was a user. Bradforth, the Court said, suggested that the appropriate range for offences of the type being considered there - a user or addict selling a range of drugs, both Schedule 1 and 2, and re-offending on bail - was 10 to 12 years. The Court in Raciti concluded, having regard to the Bradforth range, that a sentence of 11 years was justified, notwithstanding that the applicant had made impressive efforts at rehabilitation.

[16]

[15] The learned sentencing judge in this case properly took into account the fact that different Schedule 1 drugs were involved in the trafficking. It was relevant to an assessment of the extent of the applicant's undertaking, which, on sound small business principles, had a broad product base, and was accordingly much less at the mercy of supply fluctuations. In a discussion with counsel, the learned judge made it entirely clear that he did not propose to take into account anything that happened before the period charged, but was proceeding on the basis that the charge related only to a period during which an established business was in progress. Again that was relevant to the proportions of the business being carried on by the applicant. It was not some new and struggling endeavour. It seems to me to follow, at least in principle, that the more effective the drug trafficking, the greater the penalty should be.

[17]

[16] There were, in this case, transactions in Schedule 1 drugs of a scale and number not present in any of the cases relied on. This was, in my view, a much more substantial, broadly-based enterprise with far more entrepreneurial activity (exemplified by the investment in the proposed importation); and there was no element of supporting a habit. Apart from his lack of relevant convictions, there was nothing in the applicant's antecedents particularly deserving of lenience. Any addiction to gambling, which had ceased as at September 2003, could not explain his continued and extensive activity over the period up to the end of February 2004. The complaint that the discount for the plea of guilty was reduced too much because of the contested hearing overlooks the fact that the plea itself was a late one, after preparation for trial was already under way. The reduction for the plea was, in fact, similar to that which met with apparent approval in George.

[18]

[17] What the comparable cases demonstrate, in my view, is that a sentence of 13 years for a substantial, wide-ranging trafficking business, carried on as a purely commercial enterprise over a period for most of which the applicant was on bail for possession, was well within the range of a sound exercise of sentencing discretion. I would dismiss the application for leave to appeal against sentence.

[19]

[1] [2001] QCA 135; CA No 339 of 2000, 6 April 2001.

[20]

[2] [2003] QCA 183; CA No 423 of 2002, 9 May 2003.

[21]

[3] [2004] QCA 359; CA No 229 of 2004, 29 September 2004.

[22]

[4] [2000] QCA 246; CA No 24 of 2000, 19 June 2000.

At a glance

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Judgment (22 paragraphs)

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Legislation Cited (1)