The Queen v Georgieff[1997] QCA 70

COURT OF APPEAL

DAVIES JA

McPHERSON JA

WHITE J

BRISBANE

DATE 20/03/97

JUDGMENT

WHITE J:  The applicant pleaded guilty on 5 December 1996 to six counts of supply of heroin, trafficking in heroin and possession of a mobile telephone and a motor vehicle used in connection with the commission of those crimes.

The offences took place between 10 December 1995 and 12 June 1996.  The applicant was sentenced in the trial division to five and a half years imprisonment in respect of each offence with a recommendation for release on parole after two and a half years.

The applicant was 34 at the time of the offences and the mother of two daughters aged 11 and seven years from two different failed relationships.  His Honour also dealt with the applicant for breach of suspended sentences imposed in the Southport Magistrates Court on 12 March 1996 of two one month sentences and one sentence of four months and ordered them to be served by her concurrently with the present sentence.

The last two counts of supply occurred during the operational period of those suspended sentences which were drug offences and drug-related offences.  The applicant's counsel below told the Court that she had been a user of heroin from 1985 and had become addicted although there was apparently a period when she had been less so.  It was not until 1994 that her criminal history reveals any drug-related offences.

As mentioned the applicant has three appearances for drug offences between 1994 and 1995 including one of supply of cannabis and that was dealt with in the Magistrates Court.  She has other offences committed between 1979 and 1986 for dishonesty.

The applicant came to the attention of the police during a drug undercover operation on the Gold Coast.  She was introduced to a covert police operative by another male on 19 December 1995 by arrangement.  She sold the police agent heroin for $500.

On 5 January she similarly sold heroin to the police agent.  On 6 February she sold the agent heroin for $500 after he had telephoned her over several days trying to obtain heroin.  On 7 February she again sold him heroin for $500 after he had telephoned her twice seeking such supply.  On 30 April she sold the agent heroin for $1,000 after he had telephoned her on 11 different occasions.

On 6 May the agent telephoned her on a number of occasions in respect to the supply of heroin.  She said she would try to get some.  She had by then commenced a methadone treatment program and that supply is a constructive supply under the Drugs Misuse Act.

The total price paid to the agent was $3,000 for which the applicant supplied 2.6169 grams of powder containing 1.034 grams of heroin.  The applicant relies upon the particulars of the discreet counts to demonstrate that the trafficking was limited to the dealings with the undercover agent but there are features about the supplies such that that cannot be so.

The covert police operative was a stranger to the applicant when he telephoned her with respect to the count 3 supply and the applicant was using her business, according to her counsel below, to support her addiction.  Each transaction gave her a taste and it can be inferred that five supplies would not have been anywhere near sufficient for such an addiction.

She had no other apparent source of funds.  Accordingly, there is no reason not to draw the inference that there were or had been, during the period charged, other customers.  Nonetheless, she appears to have been very much a go between supplier. 

The applicant submits that the learned sentencing Judge did not make sufficient allowance for matters favourable to the applicant.  These were the early plea of guilty; it was a full hand up committal and notification of the plea was given in the month following.  There was some assistance given to the police about where she obtained the heroin.  She was drug addicted herself and there was no commercial gain apart from some heroin for herself involved in the transactions.

She had entered a program of rehabilitation prior to arrest on these charges in a methadone clinic.  Nothing associated with drugs was found when police searched her premises at the end of the undercover operation, so that this assertion of rehabilitation would appear to be supported.

The applicant relies upon the cases of Clark and Woods.  Clark, was an Attorney-General's appeal and Woods has some special features which make it less useful as a precedent.  The Crown relies on Sivewright and McGregor and Cassin to support the sentence.

Sivewright was given six years' imprisonment with a non-parole period of two and a half years.  She supplied, over a shorter period, than the applicant and sold a less amount.  She had entered an early plea and had no prior drug convictions.  She admitted to the police that she had ten other customers, at least.  She received a year cumulative on the five year sentence in respect of supplies that were made when she was on bail.

McGregor and Cassin had more serious criminal histories than the applicant.  McGregor was sentenced to six years with a two year non-parole period but the supplies were less than in this case and Cassin was sentenced to eight years' imprisonment with two and a half years non-parole with the supplies greater than the present.

In my view, the head sentence was not manifestly excessive.  However, it seems that insufficient weight was given to matters favourable to the applicant in setting the parole period at two and a half years.  In effect, only three months less than the statutory period.

It may be accepted that an indication of a plea of guilty shortly after a full hand up committal is an early plea such as to attract the benefit of section 13 of the Penalties and Sentences Act.  The plea here was early in my view.  The applicant did cooperate with the police even if not in a large way.

She had, when before the learned sentencing Judge, some genuine prospects of rehabilitation from drug addiction which was the cause of her criminal conduct.  A recommendation for parole after 18 months would have given, in my view, due recognition to these factors.

I would allow the application to the extent of substituting for the recommendation for parole below a recommendation after 18 months.

DAVIES JA:  I agree.

McPHERSON JA:  I agree.

DAVIES JA:  The orders are as indicated in the reasons of Justice White.