The Queen v Vidler[1997] QCA 393

COURT OF APPEAL

DAVIES JA

LEE J

CULLINANE J

CA No 329 of 1997

THE QUEEN

v.

GARY JOSEPH VIDLER                              Applicant

BRISBANE

DATE 09/10/97

JUDGMENT

DAVIES JA:  The applicant was convicted on his own plea in the Supreme Court on 25 August last on one count of trafficking in heroin between 15 November 1995 and 9 May 1996 and of five counts of supply between 16 and 28 November 1995.  The five counts of supply formed the basis of the trafficking count.  He was sentenced on the same day to five years imprisonment on the trafficking count and 18 months concurrent on each of the supply counts.

The applicant is 41 years of age, having been born on 25 May 1956.  He has a minor criminal history dating from 1974.  He has not previously been sent to prison, his most recent conviction and his highest penalty being one of $500 for possession of a dangerous drug on 9 April 1994.  However he has an opiate dependency which he has had since 1988.  He sought treatment for drug dependence in 1988 and he has continued to seek it since, but he has continued to relapse. In consequence of his addiction he has hepatitis and is HIV positive. 

He was approached by an undercover police officer and asked to supply him with heroin.  Initially he refused.  After further requests he succumbed because of the opportunity to obtain some for himself.  He then supplied drugs to an undercover policeman over a 12 day period.  He discontinued his supply of his own volition.  There is no evidence that he sold to anyone else. 

When arrested by police in the following May he co-operated and indicated promptly his intention to plead guilty. The applicant does not contend before this Court that the sentence of five years imprisonment was outside the appropriate range.  However he submitted that a recommendation should be made for early parole and continued for a recommendation of 18 months.  The respondent supported the view taken by the learned sentencing Judge who had said that a sentence of six years imprisonment would have been appropriate had the matter gone to trial and consequently the five year sentence was appropriate having regard to the early plea and the applicant's co-operation.

The respondent in this case relied on much the same cases as were referred to us in the case immediately preceding this of R v.Duong CA No 328 of 1997.  The main cases relied on here were R v.Woods, CA No 381 of 1994, R v. Sivewright CA No 365 of 1996, R v. Clark CA No 393 of 1996, R v. O'Brien CA No 458 of 1996 and R v. Georgieff CA No 543 of 1996.

Sivewright was sentenced to six years imprisonment with a recommendation for parole after two and a half years.  She had sold heroin to an undercover police officer on seven occasions over five weeks, the total being a little over a quarter in value of that sold here.  However the applicant in that case was plainly in the business of selling and was apparently selling to at least 10 other people apart from the police officers.  Moreover the sentence included a one year cumulative term for heroin sold after her arrest when she was on bail.  Having regard to the reluctance of the applicant here to selling in the first place and his voluntary desistence after making the sales which he did, Sivewright seems to me a much more serious case than this. 

The facts in Georgieff are closer to those in this case although the amount involved ($3,000) was about two-thirds of that involved in the present case.  Georgieff, however, was also involved in sales to people other than the undercover police officers in respect of the sales to whom she was charged and convicted.  The number of sales the subject of her conviction was the same as those here and like the present applicant she was using the sales to fund her own long-term addiction.  She had a slightly worse criminal history than the applicant here.  A sentence of five and a half years was not disturbed on appeal but a recommendation for parole after 18 months was added. 

In my view in this case the sentence which was imposed without a recommendation for early parole was too high.  Having regard to the factors which I have mentioned, the absence of any substantial criminal history and of any history associated with heroin, the applicant's reluctance to be involved in selling and his desistence voluntarily after six sales in a short period, and the absence of any commercial motive, in my view, a recommendation is justified in a case such as this in which there is being imposed on him his first term of imprisonment.  I would therefore grant the application and allow the appeal only to the extent of adding a recommendation that the applicant be eligible for parole after serving 18 months of his sentence.

LEE J:  I agree.

CULLINANE J:  I agree.

DAVIES JA:  The orders are as I have indicated.