The Queen v Truman[1997] QCA 119

COURT OF APPEAL

McPHERSON JA

WILLIAMS J

MACKENZIE J

CA No 11 of 1997 

THE QUEEN 

v. 

ROCHELLE MARIA TRUMAN 

BRISBANE

DATE 16/04/97 

JUDGMENT

McPHERSON JA:  The applicant for leave to appeal against sentence was convicted on 5 December 1996 on her own pleas of guilty in the Supreme Court of eight counts of supplying heroin and one of possession of a mobile phone used in connection with a crime.  She was sentenced to imprisonment for six years on each count of supplying heroin and to one year's imprisonment for possession of the telephone.  All sentences to be served concurrently.

The Judge recommended that she be eligible for parole after serving three and a half years commencing from 5 December 1996, which was the date on which this sentence was imposed.  The recommendation took that form because at sentencing for these offences the applicant was already serving a sentence of three and a half years with a parole recommendation after six months for offences of stealing as a servant and fraudulent false accounting.

The result of the subject sentences under review in this application would have been to reactivate the sentence that she was undergoing at the time when she committed these offences.  The effective result of this accumulation of sentences is that she would be due for release on parole, if all goes well, at about the mid-point of the year 2000. 

The circumstances of the subject offences can be summarised as briefly as follows.  On six occasions between 4 January 1996 and 21 March 1996 she sold heroin to an undercover police officer.  Count 7 involved a trip to Sydney to purchase more heroin and the eighth count consists of delivering money to her boyfriend for the purchase of a quantity of heroin.  Both of the latter two counts brought those activities within the extended definition of supply.

The total amount of heroin involved in the first six counts exceeded 5 grams pure and the amount of money changing hands on all transactions was $21,750.  In relation to the first six counts it was $13,500 and the total was reached by adding another large sum that was given to her boyfriend and never recovered.  It may be inferred that, had that transaction gone ahead as intended, the quantity of heroin involved in the whole indictment would have been larger than 5 grams.

The Judge considered the operation to have been a commercial dealing in heroin, and no point or issue is taken of that by counsel for the applicant in the proceedings before us.  It is, however, submitted that the Judge was wrong in taking account of certain matters which it was said were not charged against her.  He did that in part in order to reach the conclusion, as he did, that the applicant was engaged in a commercial dealing; but, as I have said, it is conceded that even without that, the applicant was involved in a commercial operation with respect to the heroin supplying counts to which she pleaded guilty.  I do not think that it can be said that the Judge's conclusion on the question of commercial dealing was in any way influential in increasing the sentence beyond that at which he would have arrived had he left out of account the evidence to which objection is now made.

The personal circumstances of the applicant are that she was 24 at the time of the offence and is now 25 years of age.  She comes from a good family and had a relatively good working record until she was convicted in June of 1995 of the offences of stealing and fraudulent false accounting.  She pleaded guilty at an early date to the offences the subject of this application and, in general, one might say that matters in her favour and going in mitigation of penalty were relatively strong.  What is, however, very much against her is that she committed the subject offences while on home detention from about late November 1995, and also while she was on parole following home detention in respect of the offences for which she was sentenced in June 1995.

It is also relevant that she was herself not a user and was found to have engaged in the supply offences purely for profit or for commercial purposes.  The explanation she gave was that she did it as a favour to friends or acquaintances who were heroin addicts and that she did not expect to make a profit from it.  But the Judge did not accept that explanation, and his finding on the matter has not been challenged on appeal.

The real difficulty with the application that we now have before us is not that the head sentence of six years was too high.  I do not consider that it was beyond the range for a series of offences of this number and dimension.  The real problem is that she engaged in committing these offences at a time when she was, as I have said, on home detention or on parole following home detention.  She began committing these offences very soon after being released.  It is extraordinarily difficult in those circumstances to see why she should be given the benefit of an early recommendation for parole when she has so abused the previous opportunity she was given by engaging in the commission of further and more serious offences.

In the face of that consideration, I can really see no basis on which it is possible to fault the reasoning and the sentence imposed by the Judge in the Court below.  I would therefore refuse the application.

WILLIAMS J:  I agree.

MACKENZIE J:  I agree

McPHERSON JA:  The application for leave to appeal against sentence is refused.