Court of Appeal (Qld)|2006-05-26|Before: McMurdo P, White and Philippides JJ, Separate reasons for judgment of each member of the Court, each concurring, as to the order made
McMurdo P, White and Philippides JJ, Separate reasons for judgment of each member of the Court, each concurring, as to the order made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPEAL BYCONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED– GENERALLY – whereapplicant pleaded guilty to trafficking in thedangerous drug heroin – where the sentencing judge imposed a sentence oftwelveyears imprisonment – where the sentence attracted a mandatorydeclaration of a serious violent offence under Part 9A of the Penaltiesand Sentences Act 1992 (Qld) – whether sentence was manifestlyexcessive – whether too much weight was placed on previousconvictionPenalties and Sentences Act 1992 (Qld), Pt9AR v Bradforth [2003] QCA 183CA No 423 of 2002, 9 May 2003,consideredR v Kashton [2005] QCA 70CA No 416 of 2004, 17 March2005, consideredR v Le [2002] QCA 17CA No 238 of 2001, 6 February2002, considered R v Matasaru [2000] QCA 246
CA No 24 of 2000, 19
June 2000
[2004] QCA 404
CA No 168 of 2004, 29 October 2004,
consideredR v Nguyen [1999] QCA 258
CA No 151 of 1999, 9 July 1999,
considered R v Popa [2002] QCA 252
CA No 65 of 2002, 22 July 2002,
considered R v Raciti [2004] QCA 359
CA No 229 of 2004,
29 September 2004, considered R v Truong and Nguyen
[2001] QCA 98
CA Nos 278 and 308 of 2000, 15 March 2001, considered
Judgment (32 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
[1] McMURDO P: The application for leave to appeal against sentence should be refused for the reasons given by Philippides J.
[3]
[2] WHITE J: I have read the reasons for judgment of Philippides J and agree with her Honour for the reasons that she gives that the application for leave to appeal against sentence should be refused.
[4]
[3] PHILIPPIDES J: The applicant seeks leave to appeal against a sentence of 12 years imprisonment imposed on 7 February 2006, on his plea to a count of trafficking in the dangerous drug heroin between the period from 16 August 2001 and 6 November 2001. The applicant was also sentenced on his plea to two counts of possession of heroin in a quantity exceeding two grams on 21 September 2001 and 5 November 2001 respectively, and one count of supplying heroin in a quantity in excess of two grams on 5 November 2001. No further term of imprisonment was imposed for those offences.
[5]
[4] The sole basis for the leave sought is that the sentence imposed for the trafficking count is manifestly excessive. The sentence of 12 years imprisonment attracts a mandatory declaration under Part 9A of the Penalties and Sentences Act1992 (Qld) that the conviction was a conviction of a serious violent offence, with the result that the applicant is not eligible for a post-prison community-based release order until he has served 80 per cent of the 12 year term.
[6]
[5] The circumstances of the offences as outlined by the prosecutor indicate that the offences came to light as a result of a covert operation conducted from July 2001 to early November 2001, involving telephone intercepts by the Australian Crime Commission. The operation revealed that the applicant was engaged in the business of trafficking in heroin at a wholesale level for a period of two and a half months between 16 August 2001 and 6 November 2001.
[7]
[6] The monitoring of the applicant's mobile phone from 16 August 2001 revealed that during that month the applicant was supplying to two women regularly (almost daily) and to a co-accused, Mr Ide, for on sale. By September, he dealt almost exclusively with Mr Ide on a daily basis. The monitoring revealed a pattern of contact with Mr Ide involving the retrieving of items from a Kangaroo Point unit to be provided to Mr Ide. As a result of surveillance, police had discovered that the applicant's de facto partner, Ms Le, had rented the unit at Kangaroo Point. It was rented for the sole purpose of providing a safe house for the storage of drugs before their on sale.
[8]
[7] On 21 September 2001, police carried out a covert search of the Kangaroo Point unit. There they found secreted in a light fitting two packages containing 15 grams of powder. A small sample was extracted and on analysis found to contain heroin having a purity of about 18 per cent. On that basis, the 15 grams of powder had a street value of about $6,600.
[9]
[8] Daily sales continued throughout October 2001. After another sale by the applicant to Mr Ide on 5 November 2001, the applicant and Mr Ide were arrested and the police operation was shut down. Mr Ide was found to be in possession of 11.664 grams of powder having a purity of 14.6 per cent and a yield of 1.702 grams of pure heroin worth about $6,380. A search of the Kangaroo Point unit revealed about 50.153 grams of powder. It was packaged and had a purity ranging from 13.2 to 13.5 per cent purity. The powder contained a total of 6.722 grams of pure heroin with a value of about $27,500. Police also found about $20,000 in cash and some jewellery secreted at the applicant's residence.
[10]
[9] Before the learned sentencing judge it was contended on behalf of the prosecution that the starting point for the head sentence in the present case was one in the vicinity of 16 years, and that the appropriate sentence, after taking into account matters of mitigation, was in the range of 12 to 14 years. In support of that submission, decisions such as R v Nguyen[1999] QCA 258; R v Truong and Nguyen[2001] QCA 98; R v Le[2002] QCA 17; R v Popa[2002] QCA 252 and R v Matasaru[2004] QCA 404 were relied upon.
[11]
[10] On the applicant's behalf reliance was placed on decisions such as R v Bradforth[2003] QCA 183, R v Raciti[2004] QCA 359 and R v Kashton[2005] QCA 70 as indicating that the appropriate sentencing range for the trafficking engaged in by the applicant, where there was a plea, was between 10 and 12 years. Given the very serious prior offending, counsel for the applicant indicated that a sentence at the lower end of that range, that is of 10 years, was not being urged. Instead, counsel contended for a sentence of 11 to 12 years as within the sentencing discretion and ultimately submitted that a sentence of 11 years be imposed.
[12]
[11] The learned sentencing judge sentenced the applicant on the basis that he was the central figure in the trafficking operation involving his co-accused Mr Ide and Ms Le and that the trafficking was a significant one, involving almost daily supplying of heroin, with a degree of organisation, in that it appeared that the applicant had ready access to drugs throughout the period of the trafficking. The trafficking was solely a business for profit, there being no suggestion that the applicant was an addict.
[13]
[12] His Honour took into account the quantity and nature of the drugs involved. While his Honour's sentencing remarks erroneously record the quantity of powder found at the unit on 5 November 2001 as 15.153 grams (rather than 50.153 grams), that appears to be a typographical error, as the purity of the heroin and therefore the actual quantity of pure heroin contained in the powder are correctly stated. His Honour mistakenly stated that the police search had revealed $27,000 in cash and jewellery, whereas only $20,000 in cash was found in addition to some jewellery, but that is of no moment, as was accepted by the applicant.
[14]
[13] His Honour referred to the fact that an analysis of the finances of the applicant and his partner for the period May 1999 (when he was released on parole) to November 2001, had revealed an unexplained income of about $146,000 for that period and that confiscation proceedings had resulted in a deed of arrangement being entered into in the sum of $166,980. Of course the actual trafficking offence charged here was for a period of two and a half months from 16 August 2001 to 6 November 2001 and it is apparent that his Honour did not have regard to the matter of the unsourced finances as indicating a trafficking extending beyond the period charged.
[15]
[14] In imposing sentence his Honour considered it significant that the applicant's criminal history included a conviction in New South Wales on 29 June 1990 for a serious drug offence (possession of a prohibited import, namely a trafficable quantity of heroin) for which he was sentenced after trial to 10 years imprisonment to commence from 8 May 1989, and an additional term of three years, reflecting a period of parole commencing on 7 May 1999. His Honour observed that the present offences were committed during the period of parole imposed under the New South Wales sentence. His Honour commented on the need for the sentence imposed to provide sufficient personal and general deterrence, given that the lengthy previous sentence had failed to deter the applicant from very quickly re-offending at a serious level.
[16]
[15] The learned sentencing judge also took into account in the applicant's favour his plea of guilty, which, although not an early plea and not accompanied by other co-operative behaviour, was of significance because of the likely length of trial that it saved (two to three weeks at least). In addition, his Honour noted that there was no evidence of the applicant re-offending since his being granted bail for the present offences on 5 November 2001. His Honour also had regard to the applicant's difficult personal circumstances; he had fled from South Vietnam when aged 14, leaving his parents behind. He received some education in Australia, leaving school at year 9 and thereafter working as a labourer in factories and as a truck driver. He has a child with his partner Ms Le. The child was born in 2003 and suffers from some medical problems.
[17]
[16] Notwithstanding the submissions at sentence, it was submitted before this Court that the sentence of 12 years imprisonment was manifestly excessive and that the sentence which should have been imposed was one of nine years imprisonment with no declaration being made. Three matters were relied upon in submitting that the sentence imposed was manifestly excessive. Firstly, it was said that his Honour erred in adopting too high a starting point for the appropriate head sentence applicable in the absence of a plea of guilty. Secondly, it was said that in setting that starting point, too much weight was given to the previous New South Wales conviction. Thirdly, it was contended that the learned sentencing judge failed to give sufficient weight to the applicant's lack of offending while on bail from 5 November 2001 to 7 February 2006, and rehabilitation prospects. In this regard, reliance was placed on what was said to be the implication arising from his Honour's sentencing remarks that the applicant's rehabilitation was not a real consideration. This appears to be a reference to his Honour's remarks that "unlike the situation of Mr Ide where rehabilitation was a real consideration, ... I need to sentence you not only to punish you but also to deter you and other people from committing these types of offences". (In sentencing Mr Ide, his Honour accepted that Mr Ide was a drug addict and that his involvement was in part to feed that addiction.)
[18]
[17] On behalf of the applicant it was submitted that an appropriate starting point for the head sentence was between 12 to 14 years. It was contended that a significant discount in the vicinity of one-third was required to reflect not only the saving of public resources resulting from the plea, but also to reflect the applicant's real prospects of rehabilitation already demonstrated by his not offending in the four to five years since his arrest.
[19]
[18] The learned sentencing judge did not specify the starting point for the sentence imposed. I agree with the submissions made on behalf of the applicant that many of the decisions relied upon by the prosecutor as comparable and as supporting a sentence of up to 14 years involved more serious trafficking than was the case here and were not apposite comparatives.
[20]
[19] In this category is the decision of R v Truong and Nguyen[2001] QCA 98, where a sentence of 16 years imprisonment was imposed on appeal on the offender Truong. He was convicted on his plea to trafficking in very high grade heroin (between 55 to 74 per cent) over a one year period and associated drug offences. Upon arrest, powder containing about 24 grams of pure heroin and $109,000 in cash was located. Later he was found to have been in possession of some rock heroin and 230 grams pure heroin (67.5 per cent purity) having a street value in the vicinity of $800,000. The Court of Appeal accepted the primary judge's starting point of 20 years as within range, but discounted it by four years for Truong's early plea and for the time he had spent in custody (10 months).
[21]
[20] The decision of R v Le[2002] QCA 17, where the Court of Appeal upheld a sentence of 14 years for trafficking in heroin over a four month period, is not of great assistance since it also concerned trafficking in very substantial quantities. The accused was able to deposit $326,000 into his brother's account over the trafficking period, being the receipt of funds from the trafficking. There were also two associated offences of being in possession of 500 grams of pure heroin at the time of the trafficking. The applicant had no previous convictions and the primary judge's approach of commencing with a starting point of 19 years, discounted to 14 years to reflect the plea, was upheld as appropriate.
[22]
[21] In R v Popa[2002] QCA 252, the Court of Appeal upheld a sentence of 13 years imprisonment imposed after a trial for trafficking in heroin over a nine month period. Popa was described as standing at the apex of a drug distribution network which had netted him substantial sums of money. He was driven solely by commercial motivation and had recruited others to sell for him. But unlike the present applicant, Poppa fell to be sentenced on the basis of having no significant prior history.
[23]
[22] As regards R v Nguyen[1999] QCA 258, a sentence of 12 years and eight months was imposed on appeal on a 22 year old offender for trafficking over a period from 10 September 1997 to 23 December 1997. The trafficking involved the wholesale supplying of very substantial quantities of high grade heroin for personal gain. A total of 700.264 grams of pure heroin was involved in the trafficking. The applicant was in direct contact with a Sydney supplier and had co-opted at least two other people to help in the business. The Court of Appeal held that a starting point of 16 years imprisonment was within range for heroin trafficking of the dimensions involved there, even for a relatively young offender with only a slight to moderate criminal history, but reduced that starting point by two years to reflect matters of mitigation, including the offender's plea and youth, and made a further reduction of 16 months for pre-sentence custody.
[24]
[23] The feature of the significant quantity and/or purity of the heroin involved in the trafficking cases just mentioned render them of little assistance in setting the appropriate range for either the head sentence or the ultimate sentence in the present case. Of greater assistance are the decisions of R v Matasaru; R v Bradforth; R v Raciti and R v Kashton.
[25]
[24] In R v Matasaru[2000] QCA 246 (see also [2004] QCA 404), a sentence of 12 years imprisonment imposed on a plea to trafficking in heroin over a period of six months was upheld. The 47 year old offender, with no relevant convictions, was described as a substantial dealer, with a total of 149.3 grams of pure heroin involved in the trafficking.
[26]
[25] In R v Bradforth[2003] QCA 183, a sentence of 12 years imprisonment imposed at first instance for trafficking was reduced to one of 10 years. The trafficking over a one year period was mainly in speed, which was for most of the period a Schedule 2 drug, but also in cocaine, a Schedule 1 drug, and in ecstasy. There were also associated drug offences. The 26 year old offender, with no prior relevant convictions, was described as a significant dealer, but not one whose activities placed him at the top level of dealers. His motivation was actuated in part by the need to feed a drug addiction. The 12 year sentence was reduced to 10 years to reflect both a discount for an early plea and for the period of nine months spent on remand.
[27]
[26] In R v Raciti[2004] QCA 359 a sentence of 11 years imprisonment for trafficking over a four month period in the Schedule 1 drugs of speed and cocaine, as well as the Schedule 2 drug ecstasy, was not interfered with on appeal. The offender was 39 to 40 years of age at the time of the offences and was a drug addict with some previous drug convictions, who had continued to offend while on bail. When arrested for a second time he had some 5,000 ecstasy tablets and $50,000. He was found with a substantial sum of money and he had just engaged in purchasing tablets for $117,000. The Court held that the effect of Bradforth was to suggest a sentencing range of between 10 to 12 years in trafficking cases of its kind.
[28]
[27] In R v Kashton[2005] QCA 70, the Court of Appeal upheld a sentence of 10 years imprisonment for trafficking over a two and a half year period in heroin and methylamphetamine which was, for part of the time, a Schedule 1 drug. Kashton also pleaded to a number of other drug related offences. He was 39 years of age with a substantial criminal history, and was a cannabis user but not a user of heroin or methylamphetamine. He continued to traffic after being released on bail and attempted to evade police when arrested. An analysis of his finances showed that he had made an apparent profit of $156,000 over the trafficking period. It was held that, having regard to the range suggested in Bradforth, the sentence imposed was not manifestly excessive being at the bottom of the range for cases involving pleas of guilty to trafficking in a Schedule 1 drug on a substantial scale.
[29]
[28] Bearing in mind the range of 10 to 12 years suggested in Bradforth as available where an offender has pleaded to trafficking on a substantial scale, the submissions made on behalf of the applicant at sentencing did, in my view, correctly reflect the range that was available to the sentencing judge. The present case concerned almost daily trafficking over a two and a half month period at a wholesale level, where there was ready access to the drug, involving the rental of a unit as a safe house for the storage of the drug. While the period of the trafficking was shorter than that involved in Bradforth and even Raciti, it is to be observed that as was the position in the latter case, the trafficking only ceased when the police decided to intervene and close it down. The applicant's serious relevant criminal history also distinguishes him from those two offenders. Further, while Bradforth and Raciti had the feature of the offender continuing to offend while on bail, which is not the case here, the applicant not having offended since being granted bail on 5 November 2001, it is to be noted that the applicant committed the trafficking offence soon after being placed on parole.
[30]
[29] The applicant was also neither a drug user as Bradforth was, nor a drug addict as Raciti was, so such considerations were not available to moderate the sentence. Nor does the applicant have the benefit of the factor of youth which was present in Bradforth's case. (The applicant was born on 28 February 1964 and was 37 at the time of the trafficking.)
[31]
[30] It can be accepted that a more lenient sentence than that imposed could have been made in the present case, although I do not consider that a sentence as low as that contended for on behalf of the applicant before this Court would have been within the appropriate range, given the applicant's serious prior history. The sentence imposed was a heavy one, and although at the uppermost end of the permissible range, I am not persuaded that it was manifestly excessive and outside that range or that it reflected too high a starting point.
[32]
[31] In the circumstances, I would refuse the application for leave to appeal.