R v Bellino[1999] QCA 106

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 416 of 1998

Brisbane

[R v Bellino]

THE QUEEN

v

TONY VINCENT BELLINO

(Applicant) Appellant

Davies JA

Thomas JA

Muir J

Judgment delivered 26 March 1999

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL AGAINST SENTENCE ALLOWED. SENTENCE ON THE TRAFFICKING COUNT SET ASIDE AND REPLACED WITH SENTENCE OF SIX YEARS IMPRISONMENT. CONCURRENT SENTENCE ON THE COUNT OF SUPPLYING HEROIN SET ASIDE AND REPLACED WITH SENTENCE OF TWO YEARS IMPRISONMENT.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 9/04/1999

1. The applicant pleaded guilty to trafficking in MDMA (ecstasy) over a period of approximately two months commencing in September 1997.  He also pleaded guilty to five counts of supply, four of them being of ecstasy and one of heroin.  He was sentenced to eight years imprisonment on the trafficking count and to concurrent terms of two years on the supplies of ecstasy and to three years on the supply of heroin.  In addition a pecuniary penalty order of $22,400.00 was made.  That sum was the total amount of money which had been paid by the undercover agent to the applicant with respect to all the counts.

2. Broadly speaking the issue is whether eight years imprisonment was manifestly excessive for the combination of the above offences.

3. The applicant was 29 years old when the offences were committed.  Apart from a drink driving offence committed 12 years previously (when he was 17), which is quite irrelevant in the present context, the applicant has no prior convictions.

4. The learned sentencing judge described the applicant, on his interpretation of the material presented to him, as "an experienced commercial operator conducting a cold-blooded commercial business to exploit the market for the illegal drug in which you trafficked".  His Honour went on to observe that "it was a cold-blooded, commercial enterprise which, during the relatively short period in which you were in contact with the undercover police officers, yielded the transactions to which I have referred and conversations which found the inference that you were well entrenched in trafficking in the drug".

5. His Honour appears to have relied upon submissions advanced by the Crown prosecutor below as to the effect of Exhibit 1, which is an extensive compilation of transcripts of recorded conversations between 19 September 1997 and 11 November 1997.  However, less damning inferences were submitted on the applicant's behalf by his solicitor Mr Boe which were presented both in writing and orally.  The extent of the applicant's "entrenchment" in the trade, his capacity to deliver, and the extent to which the evidence revealed dealings with persons other than the undercover police officers occupied a considerable portion of the submissions on the appeal.

6. On analysis, it would seem that the applicant when first approached by the undercover operatives, had just returned from Sydney where he had obtained 100 ecstasy tablets.  He was prepared to deal and did deal with the undercover operatives, taking $3,600.00 from them, disappearing into his unit and coming back a few minutes later with two packets containing 50 tablets each.  The police officers then asked him to supply a further 200.  From this point on there is some substance in the submission of counsel for the applicant that the recorded conversations reveal a deal of "puffery" and exaggeration on the applicant's part concerning his dealing prowess.  Plainly he did not have ready access to supply of such drugs.  The police contacted him again, and yet again.  There were 11 further telephone calls or approaches made by the police to the applicant before the second supply took place.  While there can be no doubt that the applicant was a cynical and willing supplier, he seems to have been a person with relatively little control towards the lower end of the chain of supply.  In this situation, boasts such as "if I wanted to for that rave that was on the weekend I could have sold 50 each" should not be given undue emphasis.

7. So far as the supply of heroin is concerned, this seems to have been either a gift or something thrown in with another dealing.  He told the undercover police that he did not know what it was, suggested that they cut it down with something else and to be careful.  It turned out to contain 0.069 grams of heroin.

8. In total over the two month period, with considerable stimulus from the undercover police, four transactions occurred resulting in the provision of 600 ecstasy tablets in return for four payments totalling $22,400.00.  As is commonly the situation in such cases, the level of profit for the applicant cannot clearly be established, but it was submitted on his behalf that his profit was little, and for example that on count 2 his mark up was $2.00 per tablet, netting him $200.00.  On a proper application of the principles of Morrison^[1] it cannot be inferred that his profit was of a high order.

9. On the other hand there was proof of actual trafficking and a general willingness to continue to do so over a two month period, accompanied by statements revealing awareness of relevant aspects of the trade.  Such statements suggest a complete lack of care for what might happen to those to whom the drug was supplied, including a mention of "guinea pigs" in the course of a conversation indicating that the applicant did not wish to kill himself by the use of a drug of unknown characteristics.  In the end however, apart from his willingness to deal indiscriminately, there is little evidence to support a conclusion of extensive dealings with persons other than the undercover police officers.  No doubt there were others, but little more may be inferred than that this was part of a wider business. 

10. The applicant pleaded guilty, and indeed gave himself up to police officers when he heard  they were looking for him.  It was submitted on his behalf that he had attempted to put this type of conduct behind him and that he is regretful and remorseful concerning his past conduct when he was a user of drugs.  A number of references tendered on his behalf at least give some support for this submission.  He entered a timely plea of guilty and the learned sentencing judge acknowledged this, at the same time commenting that it was "fairly clear by that stage though that the evidence was available against you and you faced up to the inevitable in pleading guilty here".  His Honour indicated that had the applicant not pleaded guilty he would have received a sentence of the order of 10 years in place of the eight year sentence actually imposed.

11. It is to be noted that the trafficking count is with respect to a Schedule 2 drug, for which a lower maximum penalty is prescribed than for a Schedule 1 drug.^[2]  This is not to say that a case of the former kind may not be more serious than a case of the latter kind.  It is worth noting however that the sentences for trafficking in the harder drugs such as heroin have tended to be substantially higher than those for trafficking in drugs (sometimes described as middle range drugs) such as amphetamines.

12. The court was referred to a number of decided cases said to be of some relevance on the appropriate level of sentence.  Particular reference may be made to R v Chan.^[3]  Chan was convicted of trafficking in a variety of drugs, principally LSD (a Schedule 1 drug) and various amphetamine related drugs (Schedule 2 drugs).  Over a period of a few months there were four sales of LSD to an undercover agent involving 500 tabs (which exceeded the Schedule 3 quantity by 11 times).  There was also a sale of amphetamine type drugs involving 500 tabs.  $14,030.00 was paid for the above drugs.  Another $33,300.00 was paid for powder containing over 51 grams of methyl amphetamine (pure) in nine transactions and a further 2.537 grams of amphetamine (pure).  There was a further supply of an "ounce" of something that was falsely described as cocaine.  Profits totalling $13,000.00 were expected from these transactions.  Chan's admissions of other dealings were more extensive and explicit than those of the applicant including that he had previously been selling as much as 10 ounces a week of "speed" at a profit of $600.00 per ounce, that he currently dealt in between two and four ounces of "speed" weekly and that in relation to LSD he was used to ordering 50 tabs at a time.  It was established that Chan was "a significant link in the chain of drug distribution before he met the agent.  It was also known that the respondent trafficked with others, although not to the same extent, while supplying the agent".^[4] Chan was not a drug user, and engaged in these activities solely for personal gain.  There was no suggestion of remorse.  However he was given due benefit for his plea of guilty.  On the Attorney-General's appeal Chan was sentenced to seven years imprisonment for trafficking.  Account must be taken however of the court's observation that a sentence of 11 years imprisonment would have been appropriate but for 11 months spent in pre-sentence custody and but for the plea of guilty.  It would seem that after allowance for the pre-sentence custody the sentence in Chan's case was seen as one of prima facie nine years, reduced to seven years by reason of the plea of guilty.  When the circumstance of Chan's pre-sentence custody is taken into account, it can be seen as roughly equivalent to a sentence of nine years.

13. On all points of comparison, Chan's case was more serious than the present one.  The present sentence of prima facie 10 years reduced to eight for the plea of guilty seems inconsistent with it. 

14. Further reference was made on this appeal to R v Sebez.^[5] Sebez was convicted of trafficking in heroin over a six month period, and there were concurrent counts including 10 of supply.  He dealt with an undercover police officer, and was also shown to have other customers.  It was found that over the relevant period he was making a profit of $300.00 to $400.00 per week from this activity.  The total amount paid to the undercover police officer was $10,300.00, and the amount of pure heroin involved was just under five grams.  Sebez pleaded guilty.  He was himself a user of the drug.  Sebez was sentenced to nine years imprisonment with a recommendation for consideration of parole after three years.  The Court of Appeal commented that the sentence was "certainly not a light one" but declined to reduce it. 

15. We have considered other cases including R v Pascoe,^[6] which do not suggest that any higher level of pattern exists in such cases like the present than that which may be derived from Chan.

16. Counsel for the Crown however referred to R v Rhodes & Kissling^[7] and in particular to the following statement:^[8]

"A review of the schedule of sentences imposed for the offence of trafficking in amphetamines which was before the sentencing judge suggests that on these facts and without the mitigating factor of an early guilty plea, the applicant could have been sentenced to a term of imprisonment of between six and nine years."

17. We have perused the schedule produced by the Crown as the one referred in the above statement.  It includes a number of single judge decisions and decisions in this court ranging from two and a half years up to 12 years.  It must be said however that there are only two cases in the schedule higher than the seven (equivalent to nine) years imposed in Chan.^[9]Both of these involved trafficking in proportions that may be described as massive in relation to those in the present case.  There are no other sentences of nine years, though there are statements by judges of first instance suggesting that sentences higher than that may be appropriate.  In the end we do not think that there is anything in Rhodes and Kissling that detracts from Chan as the most helpful point for comparison in the present case.

18. On our review of the authorities the present sentence is out of line with the current sentencing pattern.  Having due regard to the gravity of the present circumstances, the appropriate sentence should be one of six years.  We would grant leave to appeal, allow the appeal, set aside the sentence below on the trafficking count and replace it with one of six years imprisonment.  We would also reduce the concurrent sentence on the count of supplying heroin to one of two years.