The Queen v Vellacott[1997] QCA 223

COURT OF APPEAL

DEMACK J

DOWSETT J

HELMAN J

CA No 125 of 1997

THE QUEEN

v.

ANDREW JOHN VELLACOTT

BRISBANE

DATE  17/06/97

JUDGMENT

HELMAN J:  The applicant came before the Supreme Court in Brisbane on 7 March 1997 on three counts of offences against the Drugs Misuse Act 1986:  on count 1 it was alleged that between 1 January and 3 October 1996 at Ipswich, Queensland, he carried on the business of unlawfully trafficking in the dangerous drug cannabis sativa; on count 2 that on 4 August 1996 at Ipswich he unlawfully supplied the dangerous drug cannabis sativa to one Brad Dempsey; and on count 3 that on 2 October 1996 at Ipswich he unlawfully had in his possession the dangerous drug cannabis sativa.

The applicant pleaded guilty to all three counts.  The learned sentencing judge directed that convictions be recorded on all three counts but imposed a penalty only on count 1:  that the applicant be imprisoned for two years.  His Honour ordered that that term of imprisonment be suspended after the applicant had served nine months imprisonment.  The operational period for the term of imprisonment was fixed at three years.

The applicant applies for leave to appeal against the sentence of imprisonment on the ground that it is manifestly excessive.  He also complains that the period of time before which his sentence of imprisonment is to be suspended is manifestly excessive. 

The applicant's offences came to light in the course of a covert police operation in the Ipswich area.  In the course of an interview by investigating police officers on 2 October 1996 the applicant admitted he had sold cannabis sativa from the beginning of 1996 to the end of August, that he purchased quantities of the drug for about $150 and sold it for from $200 to $250, and that he had five or six regular customers to whom he would sell the drug once a week or once a fortnight. The reason he gave for his trafficking was that he wished to provide money for his wedding. 

The applicant cooperated with the investigating police officers and consented to the presentation of an ex officio indictment.  He had not been previously convicted for any offence. 

The applicant was born on 27 March 1962.  His work history showed he had been a hard worker capable of earning, as the sentencing judge put it, "reasonable sums of money". 

His Honour  concluded that because the applicant had been trafficking in the dangerous drug for some eight months a custodial sentence was called for.  Taking into account, however, the mitigating factors, his Honour decided to require the applicant to serve what he regarded as the minimum sentence. 

On behalf of the applicant Mrs McGinness argued that his Honour failed to give sufficient weight to the mitigating factors I have referred to and such things as the lack of sophistication of the applicant's illicit business and the effect of the sentence on the applicant's business and his family.  Mrs McGinness referred to a number of cases in which custodial sentences for drug offences other than trafficking had been reduced on appeal. 

It must be observed that trafficking in a dangerous drug is an offence which is treated as more serious than that of supplying a dangerous drug.  As a general rule an offence of trafficking will call for a sentence of imprisonment.  In this case although the applicant was in business only in a small way he engaged in it for long enough to supply the drug to others at least eighty times.  I say at least eighty times because, taking his admissions of supplying it to five or six customers for eight months once a fortnight would result in at least eighty instances of supply:  sixteen (fortnights)  multiplied by five (customers).  The supplying cases to which we were referred were cases of fewer instances. 

In that light I see no merit in the application.  I see no reason to conclude that his Honour's sentencing discretion miscarried.  I should refuse the application.

DEMACK J:  I agree.

DOWSETT J:  I also agree.

DEMACK J:  The order of the Court is the application is refused.