The Queen v Evans[1998] QCA 73

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 487 of 1997

Brisbane

[R. v. Evans]

THE QUEEN

v.

GLEN ROBERT EVANS

(Applicant)  Appellant

Davies J.A.

Pincus J.A.

Ambrose J.

Judgment delivered 28 April 1998

Joint reasons for judgment of Davies J.A. and Ambrose J.; separate reasons of Pincus J.A. dissenting in part.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND AMBROSE J.

Judgment delivered 28 April 1998

The appellant was convicted after a trial in the Supreme Court on 1 December 1997 on one count of trafficking in heroin and one of possession of heroin.  He was sentenced to 12 years imprisonment with a recommendation that he be eligible for parole after serving four years of that term.  He has appealed against his conviction and sought leave to appeal against sentence.

The trafficking of which he was convicted was between 1 July 1994 and 14 February 1996.  He was convicted principally on the evidence of another trafficker, Suzanne Kapper, who swore that it was the appellant who supplied her with the heroin in which she trafficked.  She had pleaded guilty to that offence and had been sentenced on 2 April 1996.

Kapper gave evidence that, in the latter part of 1994 the appellant commenced to supply her with the heroin in which she thereafter trafficked.  The heroin was exchanged for money by each being left at designated drop-off points on a daily or twice daily basis.  The exchange was in four gram lots for $800 a gram;  that is $3,200 per four gram lot or $6,400 or $3,200 per day depending on whether this occurred daily or twice daily.  This continued seven days a week, over the period to which we have referred except for a period of about two or three weeks in December 1994 when Ms. Kapper was in hospital recovering from a motor vehicle accident, during which time she continued to purchase but in smaller lots, and, arguably, some periods in 1995 when, due to some problems with the appellant's heart, his friend Ms. Mackiewcz dealt directly with Ms. Kapper.

The appellant's appeal against conviction was on eight grounds.  The first of them was that the learned trial Judge erred in permitting the Crown to proceed on a new indictment which charged different dates from those stated in the original indictment.  The learned trial Judge permitted this to be done but allowed counsel for the appellant an adjournment to take further instructions.  It is difficult to see how this ground is even arguable and no argument of substance was advanced in its support.

The second ground asserts that the learned trial Judge erred in allowing evidence to be placed before the jury about matters not particularized in the particulars which were given.  This relates to evidence led that the police, when they raided the appellant's motel room at the Cairns Coconut Village Resort on 13 February 1996, found a sum of $2,250 and a small set of electronic scales.  No objection was taken at the trial to the admission of this evidence which was known to the appellant before the trial.  It was evidence which supported the particularized counts of trafficking and, in our view, was admissible in respect of them.  That ground must also therefore fail.

The third ground was that the learned trial Judge erred in allowing evidence to be given by a police officer of a conversation with the appellant concerning items said to have been found in his car.  This consisted of a quantity of razor blades and some white heroin "rock".  The appellant denied knowledge of them.  But the evidence of their presence in his car was plainly evidence which, if accepted, corroborated the evidence of trafficking.

Ground 4 asserted that the learned trial Judge erred in allowing evidence of hire of cars by Ms. Mackiewcz during the period which the appellant was in hospital with his heart condition.  Evidence had been led and not objected to of the hire of rental cars by the appellant as part of his business of trafficking.  Ms. Kapper gave evidence that she also used hire cars in the course of her business.  The appellant and Mackiewcz were in a de facto relationship for most of the relevant period and Ms. Kapper's evidence was that Ms. Mackiewcz took over the supply to her when the appellant was in hospital.  The evidence has some limited relevance as showing the continuity of the appellant's business through Ms. Mackiewcz, whilst he was in hospital.  It had little or no prejudicial effect.  This ground must also fail.

Ground 5 complains that the learned trial Judge erred in allowing into evidence a tape which was indistinct but on which Ms. Kapper identified the appellant's voice.  The tape was a surveillance video tape installed in Ms. Kapper's house.  It recorded amongst other things, a conversation regarding the collection of $3,200 owed to the collector.  The learned trial Judge told the jury that little reliance could be placed on this evidence because of the indistinctness of the tape.  Nevertheless, because of the identification by Ms. Kapper of the appellant's voice and the amount involved, it was relevant and admissible.

Ground 6 complained about evidence of the motel records of the motel, the subject of the raid to which we referred earlier, which showed that the room occupied by the appellant and Ms. Mackiewcz was booked in the name of Mr. G. Rutterman of 17 Rue Heiri Heiri, Paris.  It was evidence from which the jury could have inferred that the room was booked in a fictitious name  and was therefore of at least some relevance.

Ground 7 asserted that the trial miscarried in referring to the activities of Ms. Mackiewcz.  However it is clear that Ms. Mackiewcz was involved in the business of trafficking carried on by the appellant and her activities were relevant to that business.

The eighth ground of appeal contended that the convictions were unsafe and unsatisfactory.  No particulars of this were given.  Before this Court counsel asserted only that the verdicts were unsafe and unsatisfactory by reason of the fact that the Crown case depended substantially on the evidence of the accomplice Kapper.  Her evidence was a matter for the jury.  If they accepted it the appellant was plainly guilty of trafficking.  There is no substance in this ground.

The appeal against conviction should therefore be dismissed.

The appellant is a 36 year old man whose only relevant previous offences, committed in 1993, were those of production and possession of a dangerous drug, presumably marijuana.  On that occasion he was also convicted with Ms. Mackiewcz and ordered to undergo 100 hours of community service.

The appellant's trafficking business was a substantial one, involving sales to Ms. Kapper of at least $3,000 a day or $89,000 a month over a period of five months or a little more.  Mr. Chowdhury for the respondent submitted, correctly it seems to us, that this involved well over $400,000 changing hands in that period.

The appellant was a heroin addict and it may be accepted that at least a substantial reason for his involvement in trafficking was to feed his addiction.  Nevertheless, as we have indicated, the scale of the appellant's dealing in heroin was substantial both as to weekly amounts and as to the period over which it continued.

The appellant, in submitting that the sentence imposed was too high, referred to three decisions of this Court;  Runcan (1993) 70 A.Crim.R. 222, Legradi C.A. No. 469 of 1993, judgment delivered 4 March 1994 and R. v. Le [1996] 2 Qd.R. 516.  In the first of those cases the applicant, who had pleaded guilty to trafficking, had his sentence reduced on appeal to this Court from 12 years with a recommendation for parole after five, to ten years with a recommendation for parole after three and a half years.  Although it is not entirely clear, it seems that the extent of the appellant's trafficking in that case was substantially less than that in this.  However in that case the appellant's motive was a purely commercial one.  Because the extent of the trafficking in that case is unclear we cannot be satisfied that it is comparable to the present though our impression is that it is not.

Legradi pleaded guilty to trafficking and was sentenced to nine years imprisonment with a recommendation after three years.  He was a co-offender with Runcan in some offences.  His application for leave to appeal against sentence was refused.  Again in his case it is unclear what was the extent of the trafficking and consequently we cannot be satisfied that it is analogous.  But our impression is that it was less than in this case.

In each of those cases the absence of previous convictions, the difficulties which the applicant had in his early life and his plea of guilty was taken into account.  None of those mitigating factors is present here.

Le was convicted of trafficking in heroin between 17 January 1994 and 8 April 1994.  The precise extent of his trafficking was not able to be proved.  He pleaded guilty and was sentenced to eight years imprisonment.  His plea of guilty and absence of previous convictions were taken into account in that sentence, no recommendation for early parole being given.  His application for leave to appeal against that sentence was refused.

We do not think that those decisions show that the sentence imposed in this case was manifestly excessive.

A sentence which may be used for comparison is that which was imposed on Ms. Kapper.  After pleading guilty, she was sentenced to 12 years imprisonment with a recommendation that she be eligible for parole after three years of that term.  Given that she co‑operated with police including giving an undertaking, which she honoured, to give evidence against the appellant here, that sentence appears to be a high one.  But if it is not manifestly excessive, and it was not submitted to this Court that it was, it tends to make this sentence appear to be a moderate one.  Ms. Kapper was a retail dealer who purchased all of her supplies from the appellant during the relevant period.  He was a wholesale trafficker, presumably with customers other than Ms. Kapper.

In considering the totality of the sentence imposed here the recommendation for parole after four years must be taken into account.  That recommendation was made substantially because of the appellant's serious health problem, which appears, at least in part, to be a consequence of his heroin addiction.  Nevertheless the sentence appears to us to be a high one.  But we cannot be satisfied that it was manifestly excessive and consequently we would refuse the application for leave to appeal against sentence.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 28 April 1998

I have read the joint reasons of Davies J.A. and Ambrose J. in which the circumstances are explained.  The witness Kapper’s evidence in chief was to the effect that the applicant would leave heroin to be picked up by her every day of the week "a couple of times a day".  She said the heroin was in 4 gram packages, the price being $800 per gram.  She also said there would be two 2 gram packets.   This evidence related to heroin left for Kapper in public places;  there was also evidence of supply of small amounts to Kapper while she was in hospital for some two or three weeks.  In cross‑examination as to the larger amounts supplied, she displayed uncertainty as to the number of times a day heroin would be left for her:  "I don’t know how many times a day";  "[a] few";  "I couldn’t say exactly how many.  But more than once".  Counsel for the applicant below contended at sentencing that the judge should take a sceptical view as to Kapper’s evidence of the amounts supplied. 

There is reference in the primary judge’s reasons for sentence to the supply of about 4 grams a day "on virtually a daily basis" and this implies a rejection of Kapper’s evidence to the effect that the 4 gram lots were supplied more than once a day.  On that basis, heroin was being supplied at the rate of a value of over $1M per annum.  This is a surprisingly large sum in view of the absence of any suggestion that the applicant was living in prosperous circumstances.  I return to this topic below.

There was tendered before the primary judge a medical report from the Clinical Director of Drug and Alcohol Services at Cairns Base Hospital, Dr MacQueen.  This explained that the applicant has infected heart valves as a result of his drug use.  The report went on:

"He has had two major thoracic operations, the second of which resulted in him having an aortic valve replacement.  He must remain on a blood thinner Warfarin, as a result of this and this requires regular blood testing.  More particularly, he has incurred significant heart damage and had heart failure in the past and it is possible for this to occur again without adequate medical monitoring".

The doctor went on to say, in effect, that if the applicant were incarcerated there could be two major problems of a medical kind which might bring about further infection and the death of the applicant. 

Counsel who appeared before the Crown below referred as to the medical matters to the opinion of a Dr Falconer that the applicant could "be managed safely in a custodial environment".  The judge did not express a view on whether the opinion expressed by Dr Falconer should be given weight, in preference to the more pessimistic view of Dr MacQueen.  His Honour mentioned, however, that he took into account the applicant’s serious health problem as an "offsetting factor".  The judge also recommended that the applicant be incarcerated, if possible, at a place near to quickly available medical attention.

The primary judge was influenced, in setting a head sentence of 12 years, by the fact that Kapper had been sentenced to 12 years imprisonment.  His Honour said:

"Given that the Crown proceeded on the basis that you were her supplier and there was no evidence of any other supplier, I cannot see any basis for consideration of a lower head sentence than was applied in her case.  On the contrary, you have to understand that there is an importance in having parity or consistency in punishment.  That is fundamental to any rational and fair system of criminal justice.  Otherwise it would be regarded as a sign of unfairness if there is any unequal treatment which is likely to lead to erosion of public confidence in the administration of this area of law".

I would add that in my view the sentence ordered against Kapper could not justify increasing that imposed on the applicant beyond the range appropriate to his culpability and personal circumstances.  The judge read the sentencing remarks relating to Kapper and, although not tendered, they have been supplied to us.  It appears from those remarks that the police had listening devices in Kapper’s residence by 25 March 1995 and that between that date and 21 May 1995, Kapper made 283 supplies of heroin - i.e. about 5 supplies per day.  During another period, 22 July 1995 to 3 August 1993 there were fewer than 3 supplies per day.  The judge who sentenced Kapper summed up the position as follows:

"As to the scale of your business the prosecution recorded 314 sales of heroin . . . assuming each sale was worth $50 it meant the 314 sales were worth $15,700.  If the average sale was $100 of course that becomes $31,400".

It will be noted that these calculations, which relate to sales in a period of about 10 weeks, produce a figure, on an annual basis, very much less than that which is derived from the evidence Kapper gave at the applicant’s trial.  One would expect, of course, that she was receiving at least as much as she was paying out.

To return to the primary judge’s reasons in the present case, his Honour concluded -

"a large but incalculable amount of heroin was in that 16 to 17 month period exchanged for a considerable amount of money".

If this implies that it is impossible to determine even roughly how much the applicant was receiving, gross, from the sales, I agree;  it does not appear to me in the whole of the circumstances that one could sensibly consider the matter on the basis that dealings on the scale suggested by counsel for the respondent before us were involved.  It is not surprising that in some of the authorities in this Court to which we were referred, the Court does not include in its reasons an estimate of the quantity or rate of heroin trading, which is commonly quite uncertain.  At least, in view of the surprising extent of the variations in the estimates made by the witness Kapper as to the amounts sold to her, a cautious approach with respect to that subject is warranted;  Kapper had no discernible incentive to minimise the applicant’s guilt and it is difficult to reconcile her evidence with the police observations of her sales, as referred to in the sentencing remarks relating to Kapper.

The sentence being considered is the first the applicant, at the age of 36, will have undergone;  the only previous punishments imposed upon him were an order to perform community service and an order for probation.  It is accepted that he has at all relevant times been badly addicted to heroin;  this is not an excuse, but it makes his case less culpable, in my view, than that of a person selling heroin purely to enrich himself.  As I have mentioned there is no suggestion that the applicant has been presenting a prosperous appearance;  it was stated without contradiction below that he was paying $15 per week rent and living in a shack. 

Having regard to what seems to be the parlous state of his health and the other circumstances I have discussed, it appears to me that the head sentence imposed should not be allowed to stand;  I would reduce it from 12 years to 10 years.

I agree, for the reasons given by Davies J.A. and Ambrose J. that the appeal against conviction should be dismissed.