The Queen v Hauser[1999] QCA 345

THE PRESIDENT: The applicant pleaded guilty to one count of supplying a dangerous drug namely heroin on 23 December 1997. On 4 June 1999 he was sentenced in the Supreme Court at Brisbane to imprisonment for one year cumulative upon terms of imprisonment he was presently serving with a recommendation that he be eligible for release on parole on 24 August 2001.

At the time of his sentence his earliest eligibility for parole was 24 February 2001. The parole recommendation requires him to serve a further six months' imprisonment before becoming eligible for parole.

The applicant claims the sentence is manifestly excessive.

The applicant had been dealt with for a minor drug matter in March 1996. On 20 September 1996 he was sentenced to two years' imprisonment for robbery and four years' imprisonment for armed robbery with a recommendation for immediate release on parole. He was not released until December 1996.

In June 1997 he was convicted of drug offences which had been committed in February 1997. In May 1998 he was convicted of two counts of fraud committed in August and September 1997 and was placed on probation for two years with special conditions involving compensation, treatment and attending and completing a program at Logan House, a drug rehabilitation centre.

The applicant was therefore on parole and on bail for the fraud charges when he committed this offence, the facts of which are as follows.

The applicant supplied one Copeland with a "quarter" of heroin. The Crown submitted this was done for a payment of $130. That heroin was injected into a person called Jimmy who died as a result. There was some confusion as to who had actually injected the heroin into Jimmy but the applicant was not charged in that respect.

When the applicant and Copeland realised that Jimmy could not be roused they did what they could to assist him. The applicant had obtained the heroin from an Asian at the Darra train station the day before.

The applicant told police he was bullied into giving the heroin to Copeland and made no mention of any payment. As the Crown did not dispute those facts and claim that a heavier penalty should be imposed because of the more serious allegations, the judge was required to sentence on the more favourable version of the facts to the applicant.

A psychological report from Dr Peter Perros was tendered on behalf of the applicant at his 1996 sentence and again on this sentence, and described the applicant as an intelligent 22-year old bisexual, effeminate and sensitive man who has a substantial history of drug abuse and dependence.

A more up to date report of 10 March 1999 was tendered from Dr Rosevear of the Stonewall Medical Centre. That report stated that the applicant had been addicted to heroin since the age of 14 and had tried the methadone program as well as Logan House rehabilitation. He has difficulty accepting and integrating his sexuality and has had past difficulties in prison where he has been stood over for sexual favours. He has a history of suicidal behaviour and is at a risk of sexual assault or suicide. Unless his addiction is resolved he is unlikely to change his established pattern of behaviour.

A letter tendered from Logan House Drug Rehabilitation facility showed that the applicant was self-referred there and was admitted on 19 February 1998 but self-discharged on 17 May 1998. He was subsequently re-admitted on 25 June 1998 and progressed to the final in-house phase of the program but self-discharged on 28 October 1998, prior to completing the program.

On these facts the respondent very fairly concedes that a concurrent sentence was appropriate.

The sentence was, on the facts placed before the learned sentencing judge and apparently accepted by the Crown, manifestly excessive. I would propose the following orders.

I would grant the application for leave to appeal against sentence, allow the appeal, vary the sentence below by removing the requirement that the sentence be served cumulatively, together with the recommendation for parole eligibility, otherwise I would confirm the sentence below

I would also suggest to the Community Correctional authorities that when the applicant is to be released on parole consideration be given to admitting him to a drug rehabilitation centre.

PINCUS JA: I agree.

THOMAS JA: I agree. I merely wish to emphasise that the basis upon which he fell to be sentenced was a gratuitous supply by him in response to persistent demands from Copeland who seemed to be in a position of some domination of him. On that basis it was incorrect to impose a cumulative sentence. I agree with the remarks of the President and with the orders which she proposes.

THE PRESIDENT: The orders are as I have proposed.