R v Popa [2002] QCA 252

Court of Appeal (Qld)|2002-07-22|Before: Jersey CJ, Williams JA, Jerrard JA

The applicant, it should be observed on the evidence led at the trial, stood at the apex of a drug distribution network at the time in Cairns. The trafficking netted him substantial sums of money. He was motivated only by financial greed. The sentence of 13 years sits comfortably with the approach taken in other cases, notably Nguyen Court of Appeal 151 of 1999, Van Bi Tran 111 of 1996, Bujora [2001] Queensland Court of Appeal 310 and Bulciuman and others Nos 342 to 346 of 1996.

The learned Judge properly regarded Bujora, with whom the applicant had been working, sentenced to 12 years, as setting a relevant standard. A sentence of this order, that is 13 years, for a mature man who runs a heroin trafficking business over a substantial period, who recruits some operators and fosters the custom of vulnerable addicts, netting substantial sums of money, and driven only by a commercial motivation, was comfortably within range. I would refuse the application for leave to appeal against sentence.

I would add to the comparable cases referred to by the Chief Justice in his reasons a reference to the recent decision of this Court in R v. Dent [2002] QCA 247. It may well be that in that case a greater quantity of heroin was involved but Dent did not have a prior conviction for cultivating cannabis which this applicant did. In Dent a sentence of 14 years imprisonment was not interfered with. I agree with the orders proposed.

JERRARD JA: I agree with the reasons for judgment of the learned Chief Justice in respect of the appeal against conviction. I add that there were considerable circumstantial items of evidence adding force to the direct evidence of the witnesses who identified the appellant as being directly involved in carrying on the business of trafficking in heroin. Some examples will suffice in addition to those given in the judgment of the learned Chief Justice.

The witness Popescu who swore to having sold heroin for the appellant for a period of perhaps three weeks described having had a flat arranged for his residence in Harris Street in Cairns. He said that this was done by the appellant. There was evidence independent of that witness that a flat at unit number 1 at 23 Harris Street in Parramatta Park in the relevant area was rented during the relevant period by a man giving himself the name of Ilie Constantine.

The person so describing himself also described himself as being employed by Harris Brothers and giving his occupation as that of a plasterer. The appellant had been employed by that employer as a plasterer in the years 1995/1996 and no person by the name Ilie Constantine had ever worked for those

employers. In addition, the person giving himself that name gave the name of Popescu as one of the referees for the renting.

There were other circumstantial details. These included the fact that the witness Seicean whose evidence was critical specifically described how he had been introduced by the appellant to other people who would buy heroin including a woman known to Seicean by the name Karen and another woman known by the name Jacqui. Mr Seicean's evidence was that he was introduced by the name Dave.

Each of those two women was called by the Crown. Each described having been convicted in trafficking in heroin and each described having purchased heroin from a man known to them as Dave and sold part of that heroin to support their own need. It was apparent from the Crown case that the person Dave was the man Seicean and the jury were entitled to conclude from the evidence each of those women gave that they were introduced to Seicean by the name Dave by a person whom they identified from photographs and the jury were entitled to conclude that that person was the appellant.

I agree with both of the observations of both the Chief Justice and of Justice Williams regarding the application for leave to appeal against sentence. I have nothing else to add.

THE CHIEF JUSTICE: The appeal against conviction is dismissed. The application for leave to appeal against sentence is refused. The collection of material which the appellant presented in the course of the argument should be marked "A" and placed with the papers.

The complaint ventilated before us was that the appellant's counsel at the trial did not lead the evidence. But as appears from the affidavit of that counsel, Sandra Joyce Pearson, placed before the Court today, that evidence was not led for good forensic reasons. The point is plainly without significance, particularly when one has regard to the test as formulated in R v. Paddon [1998] QCA 248; [1999] 2 Queensland Reports 387 at 393. There could be no basis for any reasonable contention of flagrant incompetence in relation to the way this matter was handled here, if one has reasonable regard to the content of counsel's affidavit.

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