R v Poppa [2005] QCA 157

Director of Public Prosecutions (Queensland) for the respondent

[1] McPHERSON JA: I agree with the reasons of Philippides J for allowing this appeal against sentence. The sentence should be varied by the addition of the recommendation proposed by her Honour.

[2] JERRARD JA: In this application I have read the reasons for judgment of Philippides J, and respectfully agree with Her Honour that it is appropriate to allow the appeal to the extent of varying the sentence imposed by making a recommendation for eligibility for release to the community after serving three and a half years. While the sentence imposed makes adequate allowance for Ms Poppa's plea of guilty it does not sufficiently reflect the fact that she has no prior relevant convictions, which would be properly taken into consideration by the recommendation Philippides J proposes.

[3] PHILIPPIDES J: The applicant, Emilia Poppa, seeks leave to appeal against a sentence imposed on 28 February 2005 on her plea to one count of trafficking in heroin between 24 October 2003 and 24 December 2003, in respect of which she was sentenced to 9 years' imprisonment. She also pleaded to 2 counts of supplying heroin and 1 count of possessing heroin in a quantity exceeding 2 grams, in respect of which convictions were recorded but no further penalty imposed, those matters being seen as particulars of the trafficking count. In addition, she pleaded to 1 count of possessing cannabis sativa in respect of which a concurrent sentence of 1 month imprisonment was imposed. The only sentence under appeal is that imposed in respect of the trafficking count.

[4] The applicant's trafficking came to light on 23 December 2003, when police from the State Drug Squad in the course of investigating matters in the West End/Woolloongabba area, observed a male person meet with the applicant and observed a transaction take place between them. The police intercepted the male and found on his person about 4 grams of powder. He indicated to the police that he had purchased the powder which he understood to be heroin from the applicant in the course of the meeting which the police had observed. Subsequent analysis indicated that the powder was 3.429 grams of partially compressed white powder containing 0.888 grams of heroin of 25.9% purity.

[5] As a result of that information, police arranged for what was referred to as a "controlled operation". That is, they arranged for a police operative called Bostock, to meet the applicant later the same day, through an informant, to attempt another drug transaction. Bostock was introduced to the applicant and told her that he was from Ipswich and had a discussion "about buying drugs from someone at Ipswich but wanting to get some gear off another person". Bostock organized to buy 7 grams (a quarter of an ounce) of powder from her for $2,000. The applicant then showed Bostock a clip seal bag containing a white substance. He asked her if he could get any more and she asked how much he wanted. He referred to an ounce and was told by the applicant that it would cost $8,000. When queried about the quality, the applicant replied that it was good. The applicant indicated to Bostock that she could organize it in half an hour.

[6] Soon after the conversation occurred, the applicant was detained by other police officers. They conducted a search of her person and found $18,685.80 in her hand bag and a large number of clip seal bags containing heroin. The bags were packaged into one ounce, half ounce and quarter ounce quantities. The analysis certificate indicated that in total, the gross amount of powder weighed 171.265 grams and analysis showed that the total amount of pure heroin was 48.824 grams, the average purity being about 29%. (This apparently includes the 3.429 grams sold in the transaction observed by the police). Given the quantities in her possession, it is clear that the applicant could have supplied the 7 grams requested by Bostock immediately, but had chosen to exercise some caution.

[7] The applicant declined to take part in an interview, however she made admissions in her pre-arrest conversations with police and volunteered the duration of the trafficking as being 3 months. But for those admissions, there would not have been evidence as to the ambit of her involvement in the earlier drug supply.

[8] The applicant was 39 years of age at the time of the offences and 40 at the time of sentence, being born on 3 March 1964. She had a criminal history of negligible importance, it contained a single entry in 1998 for unauthorised dealing with shop goods in respect of which she was convicted and fined.

[9] The applicant was born in Romania. Her mother died when she was 10 and she lived with her father for a period. She had a child when she was 20 years of age and who herself is now 20 years old. The applicant left Romania and settled in Australia in 1989. She and her husband divorced in 1997. She began experiencing back pain in September 2003 associated with osteoarthritis and after various treatments was told that nothing further could be done for her. That impeded her ability to work to support herself and her daughter. The applicant apparently occasionally smoked a small quantity of heroin in order to relieve her back pain.

[10] In October 2003, she met a Vietnamese man who she had known from English classes some 10 years previously. He suggested that she could earn money by selling heroin for him. Her motivation in taking up the suggestion was financial; she was struggling to meet mortgage payments from her disability pension and wanted to provide for her daughter.

[11] At sentence, the applicant's instructions were that she only knew the Vietnamese man by the name of Vhum, that he had provided her with a mobile phone and that she did not have a phone number for him or any means of contacting him. When he contacted her on the mobile he used phones where no number was recorded on the screen of her phone. Vhum's instructions were that she had to sell the heroin to people he would send to her and who would contact her on the mobile phone he provided. She only collected heroin from Vhum on two occasions. She was to receive $1,000 per ounce as her cut. A large portion of the money in her bag was the proceeds of sale of the first batch of heroin and she was owed $2,000 for the sales from that batch. Her instructions at sentence were that the informant, who she knew as Jake, was the person who purchased most of the first batch, about 2½ ounces.

[12] Her explanation for the large amount of cash and heroin in her bag when detained was that she had been contacted that day by Vhum who told her that he had more heroin for her to sell for him and that he did not want to hang onto it. He told her to meet him to take it from him, which she did. He then told her to go home to collect the proceeds from the sales of the first batch of heroin and to deliver that money to him. She collected the money and was on her way to meet Vhum when she received a call from the informant, who later introduced her to the undercover operative, Bostock.

[13] At sentence, it was submitted on behalf of the prosecution that, having regard to the applicant's substantial involvement, the large quantity of the drug involved which indicated that she was not a street-level dealer but further up the chain, and notwithstanding the relatively limited time span involved in the trafficking, the relevant sentencing range for the offence was one in the order of 7 to 9 years' imprisonment. In support of that submission, reliance was placed on R v Best [2000] QCA 126 and R v Hyde [2002] QCA 72. The prosecutor appears to have proceeded on the basis that the authorities suggested a starting point of 10 to 12 years, but to have also accepted that the applicant was entitled to some credit for her early plea. However, the prosecutor's submission was that the cooperation was of a limited nature in that she did not identify her supplier. It seems that that was the basis for the submission of the 7 to 9 year range.

[14] At sentence, counsel for the applicant citing R v Hamlet [2002] QCA 71 and R v York; ex parte A-G (Qld) [2004] QCA 361, submitted that the starting point for trafficking in the circumstances of the present case was more in the range of 10 years and that 7 years was the top of the applicable range.

[15] In imposing sentence, his Honour had regard to the serious nature of the offence, the fact that the applicant had engaged in a substantial way in the trade of trafficking heroin, the large quantity of the drug involved, the fact that the applicant was not a drug addict and not therefore trafficking in order to feed her own habit but to provide financial security for herself and her daughter. His Honour also expressly took into account that the applicant had no relevant criminal history and that she had made an early plea which his Honour accepted as evidence of cooperating with the administration of justice. His Honour was unable to accept that the cooperation had gone much beyond that. His Honour referred to Best, Hyde and Hamlet as authorities suggesting that the starting point for a sentence of trafficking in heroin was between 10 to 12 years' imprisonment. His Honour then took into account circumstances of mitigation, including the early plea and cooperation, in arriving at a sentence of 9 years' imprisonment, but made no further ameliorating order.

[16] Before this Court, it was contended that that sentence was manifestly excessive. It was further submitted that in arriving at the sentence, the learned sentencing judge misapprehended the appropriate range for the level of trafficking that the applicant was involved in. It was also said that his Honour did not properly assess the applicant's actual conduct and her explanations for it and that he failed to give proper weight to the matters in the applicant's favour such as her previous good antecedents, her timely plea, her cooperation and associated personal circumstances.

[17] It was submitted that the appropriate sentencing range was one of 6 to 7 years' imprisonment. In making that submission, emphasis was placed on the short period of the trafficking, the applicant's role in the distribution hierarchy, the circumstances that led to the conduct and the overall prospects of rehabilitation. It was submitted that given those considerations, the learned sentencing judge ought to have also made a recommendation that the applicant be considered for post prison community based release after she had served 2 to 2½ years' imprisonment. Such a recommendation it was said was appropriate given the absence of any relevant prior conviction, the timely plea and cooperation and other personal circumstances including her responsibilities for her daughter.

[18] On behalf of the respondent it was submitted that the sentence imposed was within the appropriate sentencing range which was said to be one of 8 to 10 years' imprisonment.

[19] In the present case, the applicant had been trafficking for 3 months. Given that she had obtained about $18,000 in cash from sales (at $8,000 per ounce or 28 grams) the applicant must have sold about 2¼ ounces or 63 grams. The analyst's certificate suggests that the powder in her possession was packaged into 4 one ounce bags, 2 half-ounce bags, 3 quarter-ounce bags and 2 bags containing 3.5 grams (1/8 of an ounce) and 25 plastic bags containing 6.627 grams of white powder. The analyst's certificate suggests that there was the same quantity in each of those 25 bags which would make each bag a quarter-gram bag. The purity of the powder was never below 24.2% and one of the half-ounce bags was at 59.8% purity which was analogous to a one ounce bag of 25% purity. That supports the submissions made by the prosecutor at sentence as to the applicant not being a trafficker at the level of a street dealer selling to addicts, as does the applicant's sale of most of the first batch to the intermediary Jake rather than to street users.

[20] The value of the 171 odd grams of powder found on the applicant was considerable. The four 1 ounce bags she was carrying could be sold for a total of $32,000, the 2 half-ounce bags for a total of $8,000, the three 7 gram amounts for a total of $6,000, and the two 3.5 gram bags for $1,000 each or $2,000. That amounts to $48,000 worth of white powder, plus the 25 bags each containing a quarter-gram. Accepting her account, she would sell those 25 bags for a total of $2,000.

[21] Even on the applicant's own account that it so happened that she was caught in possession that day of both all the money that she had earned from the sale of the first batch of drugs and also all of the drugs that she was given from the second batch, the applicant was selling large amounts and substantially involved in the trafficking trade. The fact that the trafficking was conducted over a relatively limited period was, as the learned sentencing judge recognized, a consequence of the initiative of the police in moving to arrest the applicant as quickly as they did. In the present case, I do not consider that the limited duration is a particularly significant feature given the very substantial way in which the applicant was involved in trafficking, even over the short period in question and the quantity of the drugs involved.

[22] In Hyde, a sentence of 9 years' imprisonment was imposed in respect of trafficking over a 4 month period. Although the purity of the drug trafficked was higher, the total quantity of the drug involved was about 60 grams, which was sold for $14,350, which is less than the quantity and value of the first batch taken alone. The offender there had a criminal history, although no convictions for a prior drug offence, and had also breached a suspended sentence, which was activated concurrently. A head sentence of 10 years' imprisonment was said to be within range. The 9 year sentence imposed was found to adequately reflect matters of mitigation such as an early plea and his addiction, which he had taken steps to address, particularly given that the activation of the suspended sentence was concurrent.

[23] In Hamlet, the offender's sentence was reduced from 9 years to 7 years for trafficking that had continued over a 2 year period and in circumstances where the offender continued to traffic after she was granted bail. Some 173 vehicles were counted coming to the offender's premises over a 7 day period. Police found $50,000 in her possession. The offender was a drug addict who was trading to feed her own habit and to make a profit and had a criminal history which was associated with her addiction. The Court of Appeal held that a sentence in the range of 10 to 12 years was an appropriate starting point and reduced it to 7 years to reflect matters of mitigation, which included an early plea, drug addiction which the offender had made real attempts to overcome and the care of a young child. However, that offender's demonstrated successful efforts at rehabilitation despite having a long term drug addiction combined with her responsibility for the care of her young child called for greater leniency than is the case here.

[24] A significant feature present in Hyde and also in Hamlet, was the fact that the trafficking was in part addiction-driven. That feature is regarded as attracting some leniency. It was also a consideration in many of other cases referred to as comparatives on behalf of the applicant, such as R v Mai [2002] QCA 127, R v Truong & Nguyen [2001] QCA 98 where sentences of 7 years were imposed at first instance or on appeal and R v Mackiewicz [2000] QCA 171 where a 9 year sentence was moderated by a recommendation for parole after 2 years. The factor of trafficking in heroin to support a drug addiction is not present as a consideration in the present case.

[25] On behalf of the applicant, reliance was also placed on R v Le; ex parte A-G (Qld) [2000] QCA 392 as a case where the trafficking was motivated by purely financial reasons and the offender had benefited to a significantly greater extent than the applicant. A sentence of 7 years' imprisonment with a recommendation for parole after 2½ years was not disturbed on appeal. While that was not a case concerning an addict, it was a highly unusual case involving an offender who voluntarily desisted from further trafficking notwithstanding pressure from the undercover police officer for further sales. Given that feature which was described as rare and exceptional, it is not of any real assistance as a comparative.

[26] In R v Buciuman, Buciuman & Dobrovolski [1996] QCA 387 sentences of 13 years' imprisonment with a recommendation for parole after 4½ years imposed on 3 offenders convicted of trafficking heroin, none of whom were drug addicts, were upheld on appeal. There were 12 actual supplies over a 3 month period with each offender trafficking quantities of between 99 to 134 grams of high grade powder, yielding quantities of between about 44 to 61 grams of pure heroin. One of the offenders had no criminal history and the other two did not have significant criminal histories. In that case the benefit of the pleas was reflected in the recommendation which provided for eligibility after 4½ years, 2 years earlier than would otherwise be the case.

[27] Counsel for the respondent submitted that in the present case the applicant had had credit for the matters of mitigation in the fixing of the head sentence at 9 years rather than the making of a recommendation which would not have been possible given the effect of Part 9A of the Penalties and Sentences Act 1992 (Qld). Counsel contended that even taking as a starting point a sentence of 10 years, a reduction to 9 years in the head sentence resulted, under the current regime, in the applicant being eligible for post prison community based release after 4½ years as opposed to 8 years.

[28] Even bearing in mind the limited duration of the trafficking in this case, a sentence in the region of 10 to 12 years would have been an appropriate starting point for the head sentence. The issue is whether a sufficient reduction was made to reflect the mitigating factors in the applicant's favour. In my view, a sentence of 9 years without any other ameliorating order failed adequately to reflect the matters in the applicant's favour and was manifestly excessive. In addition to her early plea, the applicant had in her favour the significant fact that she had no prior criminal history of any consequence. In those circumstances, it was, in my view, appropriate that some additional credit be given in the form of a recommendation for post prison community release after 3½ years. I would therefore grant the application for leave to appeal, allow the appeal to the extent of varying the sentence imposed by making a recommendation that the applicant be considered eligible to apply for post prison community based release after serving 3½ years' imprisonment.