Attorney-General v O'Brien[1997] QCA 120

COURT OF APPEAL

FITZGERALD P

McPHERSON JA

MACKENZIE J

CA No 458 of 1996

THE QUEEN

v.

BRISBANE

DATE 17/04/97

JUDGMENT

McPHERSON JA:  This is an Attorney-General's appeal directed to the inadequacy of a sentence of three years' probation and 240 hours of community service imposed for a count of heroin trafficking and 10 counts of supplying heroin between 30 August 1995 and 2 November 1995. 

All instances of supplying were to an undercover police officer and involved a total of 4.355 grams of powder representing 2.374 grams of pure heroin in exchange for sums amounting to $3,680.  Evidence shows that the respondent was prepared to sell to anyone and that he had no difficulty in obtaining supplies of heroin when asked to do so. 

The learned sentencing Judge said that there was no doubt that it was a calculated decision on the part of the respondent to engage in supplying to anybody who contacted him if he could get the drug from his supplier.  When interviewed, he admitted that he was owed some $2,000 by other people to whom he had provided supplies.  The evidence showed that he had supplied heroin to a young woman at about the time of one of the offences, and there was an incident in which police, who were watching them, saw these two young people injecting themselves with the drug shortly after a supply. 

There are factors going in mitigation of sentence that were referred to in some detail by the Judge in the Court below.  They are essentially that the respondent was 21 years old at the time of committing the offence, and 22 at the date of sentencing, which was in September 1996; he was himself an addict, who made a belated, but nevertheless spontaneous, effort in December 1995 to rid himself of his addiction.  That was before he was arrested or charged with these offences, and it would appear that his first effort was not successful; but in August 1996 he spent a week in a hospital detoxification unit and by the time he was sentenced in late September 1996 he had not used the drug again; he had a fairly consistent history of employment in a variety of different jobs; he pleaded guilty to the charges and showed, as the Judge thought, indications of remorse; he had no previous convictions for an offence of this kind, although since his arrest he has twice failed to answer bail on some other but minor offence. 

It was principally the respondent's comparative youth and his efforts to deal with the addiction that led her Honour to refrain from imposing custodial sentences.  I must say that I think all of us who have the misfortune to deal with cases of this kind sympathise with an approach of that kind, particularly in the case of a young person who is addicted.

No reported instance has, however, been identified in this Court of an offender, however youthful, escaping a custodial sentence for a trafficking offence of any degree of persistence.  Other decisions to which we were referred included Sivewright, given in October 1996, where a prison term of six years with a recommendation after two and a half years was upheld.  There were considerably fewer counts of supply in that case, but the applicant was a 37-year-old woman with a previous record of some dimension.  Another case was Clark, in November 1996, where a sentence of five years for trafficking in heroin and cannabis was confirmed but a parole recommendation after 18 months was substituted for the complete suspension of the five-year sentence which had been ordered in the Court below.  It was a case, however, where there was evidence of a larger scale of trafficking than anything of the kind one sees in this case.  Then again, in Georgieff, in March this year, a recommendation for parole after two and a half years was replaced by parole after 18 months in respect of a five-year sentence, again for trafficking.  The offender in that case was a woman of 34 years of age, who had a previous conviction in respect of matters of this kind but fewer instances of supplying were involved.  Yesterday, in Truman, this Court confirmed a six-year sentence in the case of a 24-year-old woman who pleaded guilty to eight counts of supplying heroin.  She was, however, not an addict but was engaging in the business evidently for the purpose of obtaining money.

In each of these cases, therefore, there were features which, in one way or another, made the offence or the offender, appear in a rather worse light than the respondent here.  The case of Clark perhaps comes closest to the present.  She was 23 years old at the time of the offence and 24 at sentencing.  However, as I have said, her offence was more serious because, although the offences with respect to heroin were not as frequent it would appear as those with respect to cannabis, she had, on her own admission, sold some $60,000 to $100,000 worth of heroin to other people.  Like this case, it was an Attorney-General's appeal, and on appeal some weight was given to the very favourable impression of the offender which the sentencing Judge had formed, even though his sentence was, in the end, not upheld. 

I should also mention the case of Trinh, which was decided in this Court in November 1996.  A very much larger quantity of heroin was involved but the offender there was 18 years old, a young woman of Vietnamese origin who, it was considered by members of this Court, had acted, to some extent at least, under the influence of her mother.  The Court, in that instance, allowed the Attorney-General's appeal against a five-year sentence, which had been wholly suspended for five years, and substituted a sentence of seven years with a recommendation for parole after 12 months. 

The case of R v. Pham, on which the learned sentencing Judge relied in arriving at her sentence in this instance, was a decision at first instance, and, although the circumstances in the sentence are in some ways comparable, the case was one in which an appeal was brought by the Attorney-General.  The appeal was ultimately struck out because the respondent offender had decamped and it was not possible to serve her with a notice of appeal.  As a precedent emanating from this Court, it is, I think, not one that can be relied upon.

In the end, I think that, unless we are prepared to depart substantially from existing sentencing patterns, a trafficking offence of this character must ordinarily continue to attract a sentence of imprisonment, although in saying that we do not intend to rule out the possibility that a non-custodial sentence might be appropriate in a proper case.

While this is not such a case, it is, however, one in which there are some mitigating features that attracted the attention of the Judge and ought, in my view, to attract favourable consideration here.  I have already said what they are, but they also include, although they are certainly not confined to, the fact that the respondent has already completed 125 hours of the community hours of the 240 hours of community service that were ordered to be served.

In substance, I consider that this is a case where the Attorney-General was justified in complaining about the inadequacy of the sentence.  I would therefore allow the appeal, set aside the sentence below, and impose a sentence of imprisonment for four years, with a recommendation that the respondent be considered for parole after serving 12 months of that sentence.

THE PRESIDENT:  I agree.

MACKENZIE J:  I agree.

THE PRESIDENT:  The order of the Court will be as indicated by Mr Justice McPherson.

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