The Queen v Pascoe[1997] QCA 284

COURT OF APPEAL

PINCUS JA

McPHERSON JA

WILLIAMS J

CA No 184 of 1997

THE QUEEN

v.

SEAN RICHARD PASCOE

BRISBANE

DATE 22/07/97

JUDGMENT

McPHERSON JA:  The applicant pleaded guilty in the Supreme Court to an indictment charging five counts of supplying heroin, one of possession of a motor vehicle in connection with a criminal offence and one count of trafficking in heroin.  He also pleaded guilty to a second indictment charging one count of supplying cannabis sativa and one of supplying heroin.  He was sentenced on all counts to eight years imprisonment.

The offences of supplying, on the first indictment, were committed between 9 May and about 27 June 1995.  They involved five sales to an undercover police agent, or through her agency, of heroin varying in purity from 31.9 per cent to 58.8 per cent, totalling a little over, as I calculated it, six grams for a price of some $6,750 or so in total.

Those acts of supplying constituted the offence of trafficking, or gave rise to it, which was charged in the first indictment.  The amount of heroin covered by the supply counts in the second indictment was .027 grams pure and a quantity of powder of about 71.8 per cent pure, which was sold for a price of $100.  The cannabis was 10.4 grams sold for $250.

The sentence imposed was not light, but the second set of offences was committed while the applicant was on bail for the first set of offences.  As the learned sentencing Judge said, "The applicant was evidently prepared to take up again where he had left off, as soon as he was released on bail."

He was, it must be said, a heroin user himself who engaged in these transactions in an order to support that habit.  He is a 34-year-old man with a history of offences including some drug offences and offences of dishonesty going back to 1981.

In the transactions now under review he showed a capacity to obtain heroin readily and, indeed, offered to supply more heroin if required.  But when interviewed he refused to disclose his source, which was evidently near at hand.  His plea of guilty on the second set of offences seems to have come rather late.

The sentence is within the range for the offence of trafficking in heroin.  The learned sentencing Judge specifically said that the plea of guilty was catered for in the head sentence, which he imposed, and that head sentence could, on one view of it, have been pitched as high as 10 years.

Counsel for the Crown of the sentence hearing suggested that the range was between eight and 10 years. Defence counsel was prepared to concede the sentence could be eight years, although he suggested that there should be a recommendation for parole.

Apart from the plea of guilty there was no basis, in my view, for considering a recommendation, and the learned sentencing Judge, as I have already remarked, said that the plea was catered for in the head sentence.  All matters considered I see no basis for thinking that the sentencing discretion miscarried in this instance, and I would refuse the application for leave to appeal against sentence.

There is, what I will call, a formal appeal against conviction based no doubt on the omission to strike out the words "conviction" in the printed notice of appeal form.  Since there was a plea of guilty there could, of course, be no appeal against conviction and the applicant, who has appeared before us in person, acknowledges that, and says he wishes to withdraw that application. 

All matters considered I would refuse the application to appeal against sentence and dismiss the appeal against conviction.

PINCUS JA:  Mr Justice McPherson has said and I respectfully agree that the sentence is not light, but for the reasons His Honour gives I agree with the orders His Honour proposes.

WILLIAMS J:  I agree.

PINCUS JA:  The orders will be appeal against conviction dismissed, application for leave to appeal against sentence refused.