R v Popovici[1999] QCA 72

COURT OF APPEAL

McMURDO P

WHITE J

MUIR J

BRISBANE

DATE 19/03/99

JUDGMENT

WHITE J:  The applicant pleaded guilty to one count of trafficking in heroin, five counts of supply and one count of possession of a car used in connection with a crime on 28 September 1998.  The trafficking occurred between 7 August and 29 November 1997, a period of almost three months.  This attracted a head sentence of nine years. The supplies were to an undercover policeman and involved 14.808 grams of pure heroin for which $15,700 changed hands. The powder had a very low grade of purity averaging some 15 per cent.

In addition to these supplies the business of trafficking was evidenced by observation of the applicant burying or removing heroin from garden beds associated with shopping centres or car parks on 14 different occasions in various locations between Brisbane and the Gold Coast.  The reasonable inference drawn by the learned sentencing Judge was that the commercial activity was much more extensive than the five supplies to the undercover policeman.

The applicant was aged 40 years at the time of the offences with only a minor irrelevant previous conviction.  He had an excellent work history as a chef and a good work record in prison where he had been on remand for some 10 months prior to sentence.  It was an appropriately early plea.  The learned sentencing Judge said that he took all these matters into account when he set the head sentence at nine years.

The Crown had submitted for a range of nine to 11 years and experienced defence counsel for eight to nine years after taking the plea of guilty into account.  His Honour was provided with and taken through many of the cases comprising a schedule of heroin trafficking sentences.  Trafficking in a dangerous drug is a schedule offence for the purpose of the serious violent offence provisions of the Penalties and Sentences Act and the prosecutor below formally sought a declaration pursuant to section 161 of the Act which His Honour declined to make.

On this application Mr Glynn for the applicant submitted that His Honour's starting point of about 11 years was too high for an offence of this kind and that an appropriate starting point was somewhat lower.  He particularly referred us to the cases of Onea and O'Grady, both cases which were on the schedule which was handed up to His Honour. 

Onea, in my view, was a worse case than this.  There, the applicant was given 11 years as a head sentence for trafficking heroin after a trial.  He had no previous convictions but there were adverse findings by the trial Judge.  It appears that Onea gave evidence on his trial that he had rarely been in gainful employment since he had come to Australia.  There were about 57 grams of pure heroin involved in the various transactions that were observed with a street value of something in the vicinity of $120,000.  Onea was neither an addict nor a user as is the case here.

The other case of O'Grady was one where the applicant pleaded guilty on the morning of the trial.  He had extensive previous convictions for drugs.  He was on parole at the time.  He employed a process of receiving heroin from his supplier in parcels containing stuffed animals.  It was calculated that he had disposed of a great quantity of heroin something in the vicinity of 55 to 75 grams over the period.

The other case to which Mr Glynn has given some attention is the case of Evans.  That was a decision of the trial division which has not been the subject of an appeal.  That was infected by the need for His Honour to give parity with a co-accused who had already been sentenced.  It was a late plea.  The prisoner had a previous conviction for heroin dealing.  Nine grams of pure heroin were involved with a purity of 50 per cent and $10,900 was paid.  His Honour said that had he not been constrained by the parity principle he would have given the prisoner a sentence in the range of six and a half to eight years.

The matter of Le Gradi seems to me to be a matter more closely in point to the facts of this case.  There, the applicant pleaded guilty to one count of trafficking and 12 counts of supply of heroin.  He had no previous convictions.  It was for a commercial purpose and the amount involved was six grams.  He was given a sentence of nine years with a recommendation after three years which was not disturbed on appeal.

The then President said at page 4 of the reasons that he did not regard the head sentence as high but within range.  In that case the Court was also referred to the co-accused's sentence of Runkin and Mr Glynn has taken us to that sentence where a sentence of 12 years for trafficking in respect of 12 counts of supply of heroin was reduced to 10 years on appeal with a recommendation after three and a half years.

Although His Honour stated that he took account of the mitigating circumstances in the head sentence in my view having started at what might be regarded as a fairly high point that reduction did not reflect adequately the applicant's excellent work history, that he had no previous convictions and that he had entered an early plea.  In those circumstances, I would be prepared to alter the sentence only to the extent of making a recommendation for eligibility for parole after three years. 

Accordingly, the orders which I would make would be to grant the application and allow the appeal to the extent that I have mentioned.

THE PRESIDENT:  I agree.

MUIR J:  I agree.

THE PRESIDENT:  The orders are the application for leave to appeal against sentence is granted and the appeal is allowed.  A recommendation is made that the appellant be eligible for release on parole after serving three years.  Otherwise the sentence below is confirmed.