The Queen v Duong[1997] QCA 395

COURT OF APPEAL

DAVIES JA

LEE J

CULLINANE J

CA No 328 of 1997

THE QUEEN

v.

HAI THANH DUONG Applicant

BRISBANE

DATE 09/10/97

JUDGMENT

DAVIES JA:  The applicant was convicted on his own plea of guilty in the Supreme Court on 26 August last on six counts of supplying heroin and one count of possession of a motor vehicle used in connection with those offences.  He was sentenced to five years imprisonment in respect of each of the six counts of supply and 12 months concurrently for the other count.  He seeks leave to appeal against those sentences; that is, effectively, against the sentence of five years imprisonment.

The applicant is 47, having been born on 22 September 1950.  Prior to the commission of these offences, which occurred between 20 June 1996 and 11 September 1996, the applicant had a small but in one respect significant criminal history.  He had been convicted of burglary and attempted burglary in 1991 for which he had been sentenced to six months imprisonment which was wholly suspended.  He then had some other minor convictions for theft, unlawful possession and possession of suspected stolen property for which he had been fined.  But, significantly, for present purposes, he was convicted on 30 January 1995 on six counts of supplying a dangerous drug namely heroin and was sentenced to a total term of two and a half years imprisonment with a recommendation for parole after six months.  The offences the subject of this application commenced within that term of imprisonment, presumably while the applicant was on parole. 

Unsurprisingly the applicant is a heroin addict,  the motive for his supply on each occasion being the opportunity to take a proportion of the amount supplied for his own use.  All supplies were to an undercover police officer. Each transaction was for $600, the total sum involved being $3,600.

The offences for which the applicant had been convicted in 1995 involved heroin of low grade. Those the subject of the present application involved heroin varying between approximately 38 per cent purity and approximately 65 per cent purity.  Three of the supplies involved heroin of a purity over 60 per cent.  However it is not at all clear to me what relevance this has for the purpose of sentencing.  Recent sentences do appear to indicate that heroin now being sold on the street has a higher percentage of purity than that which commonly existed in such heroin a few years ago.  In any event a safer indication on the scale of the operation, in my view, is the number of supplies and the value in each case.

A number of matters were advanced in the applicant's favour below.  It was said that he had served in the South Vietnamese Army and that in the course of that service he had been injured and hospitalised, during which period he had become addicted to heroin.  He has been in employment interrupted, it would seem, only by his imprisonment. Whilst in custody since 24 October 1996 he has undertaken an English language course, an engineering course and a program aimed at his drug rehabilitation. 

Most importantly, he has cooperated to a substantial degree with police, with beneficial results for the community.  That is a matter of which this Court has said a substantial discount on what otherwise might be an appropriate sentence should be allowed.  See Thompson (1994) 76 A.Crim.R. 75 and Demir, CA No 13 of 1995, judgment delivered 4 October 1995. The sentencing Judge does not appear to have had his attention drawn to those cases and he did not advert to this factor in his reasons for judgment. 

Some allowance should also be made for his plea of guilty, but in view of the almost inevitability of his conviction, this should not attract any substantial discount.

The learned sentencing Judge in imposing the sentence of five years imprisonment said that the pattern of supply in this case, although the applicant was not convicted of trafficking, was towards the end of the supply spectrum close to trafficking.  There can be no doubt that His Honour was correct in saying that.  On the other hand, there was no evidence that the applicant sold heroin to anyone other than the undercover police officer and no other indicia of a business being carried on.  Rather it has all the hallmarks of a case in which an addict was prepared, when approached, to supply heroin to another in order to feed his own addiction.

The worst aspect of this case, in my view, is that the applicant committed these offences even before his earlier sentences had expired and whilst he was on parole in respect of them.  No doubt it can be said that this was because of his addiction.  Nevertheless this makes the case much more serious than a first conviction for supply.The cases which were cited to us in the written outlines on both sides were R v. Patena, CA No 107 of 1996; Sivewright, CA No 365 of 1996; R v. Clarke, CA No 393 of 1996; R v. O'Brien, CA No 458 of 1996; R v. Georgieff, CA No 543 of 1996; R v. Williams, CA No 156 of 1994 and R v. Evans, CA No 152 of 1995.  These decisions indicate the sentence which was imposed in this case was, disregarding the allowance which should be made for the cooperation to which I have referred, towards the very high end of the appropriate range.  However it was not contended before this Court, so it appears from the written outline of the applicant, that leaving aside that factor I have just mentioned, a sentence of five years imprisonment was outside the appropriate range.

When the cooperation is taken into account, however, and I should say that in this case it was of a very extensive nature, with, as I have said, beneficial results for the community, the appropriate course in my view was to take that which was taken in Thompson and, indeed, Mr Meredith, who appears for the respondent, after seeing a sealed affidavit did not contend to the contrary.

I would therefore grant the application and allow the appeal by setting aside the sentence imposed below and imposing in lieu a sentence of three years imprisonment.

I would make the same declaration with respect to the period of pre-sentence custody, that is the period since 24 October 1996 as was made by the learned sentencing Judge.

LEE J:  I agree.

CULLINANE J:  I agree.

DAVIES JA:  The orders are as I have indicated.