R v Tran [1996] QCA 173

Court of Appeal (Qld)|1996-05-20|Before: Pherson JA, Davies JA, Pincus JA

The applicant is a Vietnamese migrant of 30 years of age. He is a married man with children but is separated from his wife and children. They apparently reside in Melbourne and he in Brisbane. All of these offences involve sales to undercover policeman. The trafficking offences were committed whilst the applicant was on bail in respect of the offences of supplying heroin.

The offences of supplying heroin involve the supply, on one occasion, of .213 grams of heroin of 58.7 per cent purity for $250.00 and another occasion of 2.363 grams of heroin of 71 per cent purity for $2,000.00. The trafficking offences involve supply of, in some cases, substantial amount of heroin on twelve occasions. The total supplied on the first eleven of those occasions was 24.736 grams of pure heroin worth $26,230.00.

It is plain that the applicant was a substantial dealer in heroin and His Honour was justified in concluding that he was fairly high up in the hierarchy of those involved in that appalling trade. His Honour quite rightly treated the applicant as a person who had the capacity to supply heroin in bulk, not merely a person supplying to persons of street level.

His Honour pointed to the fact that a number of other sales were of substantial amounts. One of them was for $5,900.00, four of them worth more than $3,000.00 and three of them for more than $2,000.00. Indeed, it was only the three earlier sales in this chain of sales which were for lesser amounts than $2,000.00. Moreover, in many of them the heroin supplied was of very high grade.

It was submitted for the applicant, before the learned sentencing Judge, that he was an addict and a user of heroin at the time of this trafficking. The learned sentencing Judge rejected this submission that the applicant was an addict. There was some circumstantial evidence that this was equivocal and the applicant did not choose to give evidence on sentence. There was also a statement apparently said to be made by him to police and a statement by his counsel but he did not choose to give evidence about those either.

In my view His Honour was entitled to reject that submission. The learned sentencing Judge had regard to a number of previous sentences for trafficking considered in this Court. The highest of them which was one of 15 years was Abdo

CA No 186 of 1991 Judgment delivered 5 December 1991. Abdo was convicted after a trial. His sentence of 15 years was accompanied by a recommendation that he be considered eligible for parole after serving six and a half years of that term.

His trafficking appears to have been at a slightly greater level than the applicant here. They involved, in total, 50 grams of pure heroin for a total sum of $72,000.00. He was described as a dealer at wholesale level with access to bulk supplies and as a perfectly cold-blooded heroin dealer who had no regard whatsoever to the consequences of his dealing.

That last remark may be equally applicable to the applicant here though it is correct that Abdo was, as I have already mentioned, trafficking in slightly larger amounts than the applicant here.

In the two cases of Ciev Onea CA number 74 of 1994 and Puscas CA No 81 of 1994, both delivered 15 July 1994, the trafficking involved substantially greater amounts than in the present case and as the learned sentencing Judge acknowledged in this case the sentences imposed there were not comparable.

In the present appeal the applicant has relied on a number of cases involving sentences at lower levels than that which His Honour imposed here. They include Onea CA No 11 of 1994, judgment delivered 20 April 1994, in which a sentence of

11 years was not disturbed by this Court; LeGradi CA No 469 of 1993, judgment delivered 4 March 1994, in which a sentence of nine years with a recommendation for eligibility for parole after three years was not disturbed by this Court and Swan CA No 354 of 1993, judgment delivered 11 November 1993, in which a sentence of seven years with eligibility after three years was not disturbed.

All of these cases involved trafficking in lesser amounts than the applicant did here. Moreover, because they were, in all cases, refusals of applications for leave to appeal they do not reflect this Court's view of the maximum sentence which could have been imposed in each case. Nevertheless, it is true to say that they indicate a pattern of sentencing in the Supreme Court which notwithstanding the greater level of trafficking in this case shows this sentence to be high.

When the sentence imposed in this case is compared with that imposed in Abdo, who it will be recalled was convicted after a trial in respect of trafficking at a higher level than this, and than those cases to which I have just referred, the sentence imposed appears to me to be outside the range appropriate for offences such as this. And it seems to me that the totality of the sentences imposed in this case, that is, a sentence of 18 years is outside the range of the sentence principle which should appropriately be imposed.

I would therefore be inclined to grant the application and allow the appeal against sentence by making the sentences concurrent and ordering the sentence imposed below only to that extent. What was the period of presentence custody, Mrs Richards?

DAVIES JA: If we are only altering the sentence below to that extent I do not have to deal with that, is that so?

MS RICHARDS: No, the declaration has already been made.

PINCUS JA: I do not think the Judge has made the necessary alterations, has he?

PINCUS JA: I mention it only because on one or two previous cases this has caused difficulty of a practical kind. 161 says you do not have to make any order but it says you have got to state the dates and all that stuff and that does not seem to have been made. Mr Bullock, have we got to do that in this case? The Judge doesn't seem to have attended to it and no doubt it was not drawn to his attention.

PINCUS JA: It was raised, in a sense, by Mr Rafter below but no order was made about it.

McPHERSON JA: But whether he did or did not it does seem appropriate, doesn't it, Mr Bullock to make the order, the declaration?

DAVIES JA: Well, then can we have those dates? Can you agree upon those dates?

MS RICHARDS: It is 22 March 1994 to 28 March 1994 and then 28 March 1995 until 25 March 1996.

PINCUS JA: How does that fit into section 161? Does 161 cover it?

MS RICHARDS: The first period in custody would be spent in relation to-----

DAVIES JA: And the second period in relation to the second of those offences, is that right?

PINCUS JA: And they do not have to be continuous, do they, under 161?

MS RICHARDS: It is a total of 370 days - 364 is the last period, six days is the first.

DAVIES JA: All right. Then I would state that the period during which the applicant was in custody in relation to proceedings for these offences and for no other reasons was 22 March 1994 to 28 March 1994 and 28 March 1995 to 25 March 1996; that that is a period of 370 days and I would declare that the time calculated at 370 days to be imprisonment already served under this sentence.

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