R v Do[2000] QCA 135

THE CHIEF JUSTICE:   When he was 22 years old the applicant carried on a business of trafficking in heroin over a period of four months.  He was arrested in April 1998, then in June 1998, while he was on bail, he provided 3.3 grams of heroin to facilitate a supply by another to be sold at $2,600 an ounce.

He was proved to have sold about $20,000 worth of heroin, about 25 grams of pure heroin, in the earlier period, to an undercover police officer, and on arrest had possession of 77 grams of rock heroin which contained 63 grams of pure heroin.  In short, very substantial quantities of heroin were involved.

The learned sentencing Judge described it as an extensive commercial operation involving regular supply.  The applicant was a user, but as was conceded before the learned Judge, the supply went beyond what was necessary to sustain his habit, hence the Judge's conclusion that he was motivated purely by personal gain.  The Judge described him as a wholesaler.  He had a runner to help him make the sales.

A very significant feature of this case was that the applicant seriously re-offended while he was on bail.  He pleaded guilty.  He had some prior history including offences of unlawfully using motor vehicles, but probably they did not greatly matter in the sentencing process.

The sentence of 12 years imposed will necessitate automatically his serving 80 per cent of the term. The Crown had suggested, before the Judge, a range of nine to 15 years.  The applicant now suggests through his counsel a range of nine to 11 years. 

The nub of the application, as presented before us, was that sufficient allowance had not been made for the plea of guilty and the admissions of involvement.

The Judge must be taken to have moderated the sentence to take account of the plea of guilty.  It was a strong sentence, but people who carry on this trade cannot reasonably complain when they are subjected to strong sentences.

I agree with the sentence.  It involves the sort of signal this Court should be sending in an area where the need for strong deterrence is prime.  I would refuse the application.

THE PRESIDENT:  I agree.  The applicant pleaded guilty on 24 September 1991 to one count of trafficking in a dangerous drug heroin, six counts of supplying a dangerous drug heroin, one count of possessing a dangerous drug heroin, one count of possessing things used in connection with trafficking, and one count of possessing property obtained from trafficking.

The offences occurred between 1 February and 2 June 1998.  The applicant was sentenced to 12 years imprisonment with a declaration that the conviction was for a serious violent offence under part 9A Penalties and Sentences Act 1992.  The applicant claims his sentence was manifestly excessive.

The applicant supplied heroin to a covert police operative on four occasions between February and March 1998.  These transactions involved a total of 12 grams of heroin for $10,000.  Police intercepted another supply and found the applicant in possession of 77 grams of heroin in rock form, containing 65 grams of pure heroin.

Items used in his business of selling heroin were found at his home, together with $5,995 from sales.  He told the police he had purchased two ounces of heroin for $15,000 two months earlier and sold 10 packets mixed with sugar for $5,000 together with additional smaller sales.

He paid his weekly unit rental of $150 and other living expenses from the proceeds he had received from the sale of drugs during that period.  He was unemployed, but not in receipt of benefits.

On 4 April 1998 the applicant told police that another Vietnamese male, Tran, who was a courier acting on his behalf, and who was intercepted by police, was taking 12.877 grams of heroin to an unknown person in exchange for $7,000. The applicant was then charged and granted bail. 

On 1 June 1998 an undercover police operative met with the applicant and two other Vietnamese males to buy heroin. The price was agreed at $2,600 per ounce.  The applicant and another male went to a bus stop where they retrieved a pink balloon buried at the base of a tree which contained heroin weighing 3.322 grams.  The applicant said he obtained the heroin on credit for about $2,000 in order to sell it.

The total amount of pure heroin involved in the supplies was 28.131 grams and $19,600 changed hands or was to have changed hands.  The white powder involved had a purity of 44.2 per cent.  Once the possession charge is also considered, the total amount of pure heroin involved in these offences was just over 90 grams.

The applicant was 22 at the time of the offences and 23 at sentence.  He was born in Vietnam and came to Australia about 11 years ago.  He attended high school at Inala.  He was introduced to heroin in 1997 and became addicted.  His counsel at sentence submitted that he had withdrawn from heroin since his period in custody after his arrest on the last count.

He became involved in selling heroin initially to support his own habit, but then made a profit upon which he lived.  His lifestyle was not luxurious but rather that of a drug user.

He has some criminal history.  In 1993 he was placed on 18 months probation for possessing unlicensed weapons.  In 1994 he was convicted and fined for three counts of unlawful use of a motor vehicle and for breach of his probation order.  He has no prior convictions involving drugs.

He was co-operative with police and readily admitted his own involvement in the offences, although it is conceded that the evidence against him was very strong.

The applicant submits that the purity of the heroin involved was relatively low and that when his youth, lack of relevant prior convictions and timely plea of guilty are taken into account, the sentence becomes manifestly excessive.   The applicant particularly relies on the fact that the sentencing Judge did not indicate, in his sentencing remarks, that he was taking the guilty plea into account in reducing the sentence he would have imposed had the offender not pleaded guilty.  The applicant submits the appropriate sentence should have fallen within the range of nine to 11 years.

The learned and experienced sentencing Judge referred to the applicant's plea of guilty on a number of occasions during his sentencing remarks.  It is not plausible that he failed to take into account the plea of guilty in imposing the sentence.  The real question can only be whether the sentence in fact imposed was, in all the circumstances, manifestly excessive.

The applicant's counsel particularly relied on the case of R v Van Cam Lam [1999] QCA 299, CA No 166 of 1999, delivered in the Court of Appeal at Townsville on 30 July 1999.  In that case Lam, who was a 35 year old Vietnamese man, trafficked in about 25 grams of pure heroin that was sold for $33,750.  Like this applicant he continued his activities after his arrest and whilst on bail.  He used the heroin to support his habit and also to live off his dealings. 

The purity of heroin in Lam's case ranged from 33 per cent to 74.3 per cent.  The trafficking involved 12 or 13 separate supplies to a covert police operative and one supply to an unknown male person commencing in a relatively small way for sums of $400 and gradually increasing to a transaction involving $5,000.

The applicant received $100 for each gram of heroin he sold and sometimes additionally took part of the heroin for his own use and he acted on commission.

At the original sentence discussion took place between the Judge and counsel as to a consideration for early release on parole, it not having been appreciated that the provisions of 9A Penalties and Sentences Act 1992 would have application to a sentence of imprisonment of 10 years or more.

The learned sentencing Judge sentenced the applicant to 10 years imprisonment.  It was conceded that sentence proceeded on a wrong factual basis.  The Court of Appeal sentenced afresh and imposed a sentence of nine years imprisonment. That case is distinguishable from this case in that the application of section 9A Penalties and Sentences Act 1992 was known to the sentencing Judge and featured in the discussion between the Judge and counsel at sentence.

Both the counsel for the applicant and counsel for the respondent have relied on R v Tam Minh Nguyen [1999] QCA, CA No 151 of 1999, 9 July 1999.  Nguyen was sentenced to 13 years imprisonment for trafficking in heroin.  He was a wholesale supplier for personal gain of substantial quantities of high grade heroin which had been supplied to him from a person in Sydney, and Nguyen's activities were revealed as a result of an NCA operation using a covert police operative posing as a buyer.

Nguyen was involved in a number of sales of heroin although these were conducted by a person lower down the chain until the covert police operative dealt directly with Nguyen, purchasing 27.5 grams of white powder containing 18.8 grams of pure heroin with a 69.7 per cent purity of $8,500.

Nguyen discussed the supply of three pounds of heroin for $285,000 and the applicant finally offered to supply one pound of heroin before Christmas 1998 guaranteeing the other two pounds shortly afterwards.

On the day the transaction was to occur 767.82 grams of white powder containing 591.68 grams of pure heroin, with a percentage purity at 67.5 per cent, were located in brief cases carried by Nguyen co-accused.

The total amount of white powder involved in the trafficking was 957.8 grams of which 700.264 grams was pure.  Nguyen was a user of marijuana and heroin, but did not claim to be addicted.  He was 24 at sentence and 22 at the time of these offences.  He had prior criminal convictions for possession of marijuana and possession of a nunchaku and cross box.  He pleaded guilty at an early stage. Again, it seems, as in this case, neither his counsel nor the sentencing Judge were aware that part 9A Penalties and Sentences Act 1992 would apply to a sentence of trafficking in heroin if the penalty was 10 years imprisonment or more.

A sentence of 13 years imprisonment was reduced on appeal to 12 years and 8 months imprisonment, only because of a mathematical mis-calculation on the part of the sentencing Judge.  Because of pre-sentence custody served, but not able to be the subject of a declaration, the effective sentence imposed on Nguyen was 14 years imprisonment.

Nguyen's offences were considerably more serious than these offences, but did not involve the aggravating factor here that the applicant continued to traffic in heroin whilst on bail.

Those comparable sentences do not support the submission made by the applicant that the sentence was manifestly excessive.  The sentence was at the higher end of the range and certainly was not a lenient one, but I am not persuaded that it is manifestly excessive.  I agree the application should be refused.

HELMAN J:  I agree that the application should be refused and I agree with the reasons of the Chief Justice and the President.

THE CHIEF JUSTICE:  The application is refused.

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