The Queen v Giang[1997] QCA 371

COURT OF APPEAL

PINCUS JA

MOYNIHAN J

AMBROSE J

CA No 313 of 1997

THE QUEEN

v.

BRUCE CO GIANG Applicant

BRISBANE

DATE 24/09/97

JUDGMENT

PINCUS JA: This is an application for leave to appeal against sentence, the applicant having been sentenced in the Supreme Court in relation to a number of drug offences. The charges were to the effect that over a period of three months he carried on the business of trafficking in heroin and that on 11 specified dates he unlawfully supplied heroin to a person called Carlos Ullman. The judge imposed a sentence of eight years imprisonment on each count, explaining that, but for the pleas of guilty the sentence would have been higher.

It is contended for the respondent, and seems to me correct, that over the period of three months which I have mentioned the applicant persistently promoted his heroin selling business to Carlos Ullman, the name given to an undercover operative. There were 10 completed sales and one incomplete; the total amount paid was over $8,000 and there was six grams of pure heroin sold in concentrations said to be averaging 72 per cent.

The applicant was born in November 1973 and so was 22 years of age when the offences were committed. He had been convicted of stealing in 1992 and in the same year was convicted of entering a place with intent, of possessing a dangerous drug, and possessing a thing used in connection with smoking a dangerous drug. In 1993 he was again convicted of stealing. There was thus some criminal record, but not a very extensive one; the applicant had never previously been sent to prison. The record includes transcripts of conversations between Carlos Ullman and the applicant which contain some indications that, as one would expect, the business engaged in was more extensive than the particular transactions charged would indicate. But the extent to which the applicant was engaged in trafficking, other than in relation to these specific instances of supply, is impossible to determine. There was no information before the Court as to the source from which the applicant obtained his supplies, but one of the conversations, that of 13 September 1996, suggests that, again as one would expect, the applicant was involved in or had intimate knowledge of drug dealing circles. On that occasion the applicant told Carlos Ullman that "one of the Vietnamese guys got murdered on last Saturday", that he had known the murdered man for ages, and that a lot of people were in hiding at that time. The conversation seemed to imply that, for the reasons I have mentioned, the applicant did not wish to do business on that occasion.

The primary judge said in his sentencing remarks that the applicant did not have the excuse of a hopeless economic future; this was a reference to the fact that the applicant had been engaged in tertiary studies in mechanical engineering at the Queensland University of Technology and was close to graduating.

It appears that the applicant is not an addict and was engaged in heroin dealing simply to make money. He has in his favour factors which have been emphasised by Mrs McGinness on his behalf, that he has never been to prison before, that he was only 22 years of age when the offences were committed and that he pleaded guilty.

Mr Ridgway, for the respondent, has placed particular reliance upon the decision of this Court in Sebez (CA No 100 of 1994. judgment delivered 17 May 1994) and he has also relied upon the reported case of Le [1996] 2 Qd.R. 516. We have been referred to and have considered a number of other decisions and I particularly mention the Attorney-General's appeal in the case of O'Brien (CA No 458 of 1996, judgment delivered 17 April 1997) and the Attorney-General's appeal in the case of Trinh (CA No 350 of 1996, judgment delivered 19 November 1996). Consideration of these decisions and general experience suggests, in my view, that the sentence which was imposed of eight years with no recommendation for early parole was, at least, towards the top of the permissible range and so much was, I think, in effect conceded very candidly by Mr Ridgway.

What has concerned me about the matter is whether or not the sentence is at a level which warrants the grant of the application. It does not appear to me that it has attained that position. I would, for myself, have thought that some greater leniency could well have been extended by the sentencing judge to this applicant, but I am not satisfied that the sentence imposed is manifestly excessive. I would therefore refuse the application.

MOYNIHAN J. I agree.

AMBROSE J. I agree.