The Queen v Runcan[1999] QCA 498

COURT OF APPEAL

de JERSEY CJ

McMURDO P

THOMAS JA

CA No 287 of 1999

THE QUEEN

v.

IOAN RUNCAN Applicant

BRISBANE

DATE 01/12/99

JUDGMENT

THE PRESIDENT:  The applicant pleaded guilty on 2 August 1999 to one count of trafficking in heroin and methylamphetamines between 6 August 1996 and 6 November 1996; four counts of supplying heroin on the 7th, 16th,

28 August and 9 October 1996 and two counts of supplying methylamphetamine on 2 October and 5 November 1996.  He was sentenced to 12 years imprisonment in respect of the trafficking, seven years imprisonment in respect of the supplies of heroin and five years imprisonment in respect of the supplies of methylamphetamines.

The sentences are concurrent with each other but cumulative upon another sentence being served by the applicant.  The applicant was convicted on 6 August 1993 of trafficking in a dangerous drug, heroin, between 18 February and 29 April 1992 and with other less serious drug offences.  He was sentenced to 12 years imprisonment with a recommendation for parole after five years.  On appeal, his sentence was reduced to 10 years imprisonment with a recommendation for parole after three and a half years.  The judge recommended he be eligible for parole after serving 4½ years of the second (12 year) sentence.

The offences the subject of this appeal were committed whilst he was on parole, having been released on 4 November 1995. 

The charges were based on six drug transactions between the applicant and a covert police agent over a three month period.  Count 1 involved a sale of 13.666 grams of heroin, 56.6 per cent pure, with a pure weight of 7.735 grams for $6,000.

Count 2 involved the sale of 14.369 grams of heroin,

23.6 per cent to 25.5 per cent pure, with a pure weight of 9.182 grams for $5,500.  Count 3 involved the sale of 14.035 grams of heroin, 60.3 per cent pure, with a pure weight of 8.463 grams for $5,500.  Count 4 involved the sale of 13.982 grams of methylamphetamine, 6.1 per cent pure, with a pure weight of .852 grams for $500.  Count 5 was the sale of 13.209 grams of heroin, 85.5 per cent pure, with a pure weight of 11.293 grams for $5,500 and count 6 involved the sale of 27.791 grams of methylamphetamine, 3.7 per cent pure with a pure weight of 1.028 grams for $500.  The total amount of pure drugs involved was 1.88 grams of methylamphetamine and 36.673 grams of heroin.  A total of $23,500 changed hands.

Although the applicant pleaded guilty, it was not an early

plea.  The plea was notified on 30 April 1999 and the sentence, as I have noted, took place on 2 August 1999. 

The applicant, having breached his parole, was returned to custody to serve his earlier sentence.  The learned sentencing Judge was told the applicant would finish serving his original sentence with remissions in February 2002. 

The applicant is 48 years old and the learned sentencing Judge accepted he was a middle man in this drug dealing.  He was born in Romania but became an Australian citizen and, at the time of sentence, was receiving a pension from the Australian Department of Social Security.  He has two children aged 18 and 9 to different mothers and does not support them.  He came to Australia on 28 October 1990, having been an accountant in Romania but without recognised qualifications in Australia. 

Other offenders who have been dealt with for trafficking arising out of this same operation include Trottea, who was sentenced to eight years imprisonment with a recommendation for parole after two years and Capatina, who was sentenced to six years imprisonment.  They are not true co-offenders and details as to amounts of drugs, money involved and their prior histories are not before the Court so that questions of parity do not arise.

The learned sentencing Judge noted the principle stated in Cutajar, CA No 338 of 1995, 19 December 1995 that, "as well as the deterrent effect the object of punishment and protecting society the total sentence ought not to have a crushing effect".

The sentencing Judge indicated a desire not to reduce the head sentence for the plea of guilty but rather to make the recommendation for early parole because supervision was extremely important in this case. 

The applicant submits the overall cumulative effect of the sentences imposed is unduly onerous and overwhelming and submits that the proper approach is to ask:  had all these matters been dealt with together, what would have been the effective head sentence.  See Mill (1988) 36 A.Crim.R. 468 at 473.

Counsel for the respondent concedes the totality principle should have effect in this case.  The practical effect of the sentences imposed is a head sentence of 22 years with eligibility for parole only after serving 12 years and four months. 

Undoubtedly, the applicant does deserve a heavier sentence because he committed these serious offences whilst on parole for similar offences.  Nevertheless, the fact that he is required to serve out the earlier sentence is a matter that must be considered by this Court.  Comparable sentences include Tran (CA No 111 of 1996, 20 May 1996) involving a larger quantity of heroin than in this case, attracted a sentence of 15 years imprisonment, cumulative on an earlier three year sentence of trafficking, with a recommendation for parole after six and a half years of the total term; that sentence was reduced on appeal to an effective sentence of 15 years concurrent, with a recommendation after six and a half years.

In Abdo (CA No 186 of 1991, 5 December 1991), Abdo pleaded guilty to trafficking in 50 grams of heroin (a larger quantity than in this case) and was sentenced to 15 years imprisonment with a six and a half year recommendation which was not disturbed on appeal.  In Jacob (CA Nos 523 and 444 of 1996, 9 May 1997) Jacob attracted a 14-year sentence with no recommendation.  These comparable sentences suggest that the effective sentence imposed in this case was indeed manifestly excessive.

Tempering the serious aspects of this crime and the fact that it was committed whilst on parole for a similar offence with the totality principle, in my view an appropriate sentence was a cumulative sentence of eight years imprisonment, with a recommendation for parole after three years.  That is, a recommendation that the applicant be eligible for parole on 27 February 2005 or three years after he commences this eight-year sentence, whichever is the earlier.

THE CHIEF JUSTICE:  I agree.

THOMAS JA:  I agree.

THE CHIEF JUSTICE:  Well, I should perhaps formally indicate the orders.  The application and appeal are allowed.  The term of imprisonment imposed by the learned sentencing Judge of 12 years is varied to substitute therefor a term of eight years imprisonment, with parole recommended after three years. 

The term of eight years to commence upon the completion of the term of imprisonment being served by the appellant as at the time he was sentenced by the learned Judge with parole eligibility being recommended on 27 February 2005 or the date three years after the commencement of the serving of the eight-year term, whichever is the earlier.