R v Mackiewicz[2000] QCA 171

COURT OF APPEAL

McMURDO P

MACKENZIE J

DOUGLAS J

CA No 437 of 1999

THE QUEEN

v.

ANNALEISE MACKIEWICZApplicant

BRISBANE

DATE 10/05/2000

JUDGMENT

THE PRESIDENT:   On 16 August 1999 the applicant pleaded guilty in the Cairns Supreme Court to trafficking in a dangerous drug, namely, heroin between 19 February 1995 and 31 July 1995.

She was sentenced to nine years' imprisonment with a recommendation for parole after two years.  A period of 48 days was declared to be served as a period of imprisonment.  In the grounds of appeal she claims the sentence imposed was manifestly excessive and also that she had no legal representation.

The applicant who was self represented at sentence and on this appeal in her written outline withdraws that latter ground.  Whilst that is sufficient to dispose of it, it should be noted the applicant had many legal representatives at various times including three different lawyers in the week leading up to her sentence.  She had ample opportunity to organise her legal representation.  The matter was a very old one.  She represented herself at sentence creditably mentioning many mitigating factors and tendering references and reports favourable to her.  There is nothing in this ground.

The applicant initially requested that this appeal be determined on the papers but the Registry organised a telephone hearing.  The applicant has filed a well reasoned and detailed outline of argument which she says was prepared for her by a lawyer friend.  She complains that at sentence the prosecutor overstated the proceeds of the sale of drugs received by parties to the trafficking and particularly as to the portion of the proceeds of sale received by her.

In the circumstances, she says, the sentence was manifestly excessive especially in not reflecting this matter, her lack of prior criminal history and in maintaining parity with co-offender Billy Ogden.

The applicant is a woman of mature years; 38 years old on the Crown material but she says she is now 42.  She suffers from hepatitis B and C and was being treated at sentence by the Cairns District Health Service Liver Out-Patient Clinic.  She had been undertaking a counselling and drug rehabilitation program with Addiction Help Agency Cairns Inc prior to sentence.  A favourable report from a senior counsellor at Logan House Drug Rehabilitation was tendered noting that she was "very serious and committed to her recovery" and had only interrupted that course to attend Court in Cairns.

A further medical report from a GP noted that she has suffered from a major depressive episode for three years and has been prescribed antidepressants and also suffers from irritable bowel syndrome.  She has prior convictions in 1993 for failing to dispose of a needle.

As this matter occurred in 1995 the remainder of her criminal history does not constitute prior convictions but has some relevance to her rehabilitation.  In 1996 she was convicted of possession of a dangerous drug and possession of property suspected of being tainted.

In 1997 she was convicted of breach of bail and on 12 June 1999 she was convicted of possession of dangerous drugs.  For all these offences non-custodial sentences were imposed.  The facts are as follows; during late 1994 there was a meeting between a heroin supplier Ms Kapper, the applicant's de facto Glen Evans and the applicant at Palm Cove in Cairns during which it was agreed that Evans would supply Kapper with heroin.

Evans supplied Kapper with four grams of heroin for $800 per gram on a daily basis, sometimes twice daily.  This arrangement continued until Evans became ill and was hospitalised for a heart condition in February 1995.  From that date and for the following four months Kapper's supply of heroin was met by the applicant.  During part of this period between March and May 1995 police installed a listening and a surveillance device in Kapper's home.

The applicant was recorded visiting Kapper on 10 days from 1 to 21 May and calls were received from her from 12 to 15 May.  Kapper's boyfriend William Ogden was also involved in purchasing heroin from the applicant.  The prosecutor submitted at sentence that the amount of money involved in the transactions during the relevant period was $360,000.00.

The evidence indicates that this applicant was a wholesaler who supplied heroin to Kapper, a street dealer. 

The applicant whose first language was not English represented herself nevertheless clearly and articulately at sentence.  She said she did not make money out of the drugs.  She became addicted to heroin at 23 whilst living in Sri Lanka. Recently, she has undertaken rehabilitation in Brisbane and she has continued that rehabilitation in Cairns.  She argued that her case was closer to Ogden's than Evans. 

This Court and the sentencing Court below were not provided with detailed information in respect of Ogden but he was sentenced to nine years with a recommendation for release on parole after either three years or perhaps two years.  Other details were not placed before this Court.

Evans was sentenced to 12 years' imprisonment with a recommendation for parole after serving four years.  Evans appealed against his conviction and sentence.  See R v Evans 487 of 1997 delivered 20 April 1998.  The Court noted that Evans' trafficking business was substantial, involving sales to Kapper of at least $3,000 per day or $89,000 a month over a period of five months or a little more.  In total $400,000 changed hands during that period.

Evans had been convicted after a trial and was a heroin addict.  He was 36 years old with only minor drug related convictions.  The majority was satisfied the sentence was not manifestly excessive noting that Kapper, who pleaded guilty, was sentenced to 12 years' imprisonment with a recommendation for parole after three years, although she cooperated extensively with police and gave evidence against Evans.  The Court noted that Kapper's sentence appeared to be high but not manifestly excessive.  The Court described Evans as a wholesale trafficker and Kapper as a retail dealer who purchased all of her supplies from him.  Evans' sentence was held not to be manifestly excessive.

A review of the comparable sentences does not suggest that this applicant's sentence was manifestly excessive.  In R v Eid, CA number 222 of 1990 delivered 21 November 1990 a much less serious trafficking occurred than in this case and resulted in a sentence of 10 years' imprisonment which the Court considered high but not manifestly excessive. 

In R v. Sebez 100 of 1994 delivered 17 May 1994, Sebez was sentenced to nine years' imprisonment with a recommendation for parole after three years in respect of trafficking in heroin and other drug offences.  The quantity involved was less than five grams pure heroin which was supplied to an undercover police officer for $10,300.00.  Sebez was 31 years of age and pleaded guilty.  The Court of Appeal reviewed a number of cases including R v. McGrady, 469 of 1993, 4 March 1994 and R v Voros, numbers 4 and 5 of 1993, 26 February 1993 and concluded that the sentence, though not light, was within range.

The prosecutor's statements as to the facts at sentence were not disputed by the applicant who, as has been noted, was able to speak persuasively on her own behalf. The figures referred to by the learned Judge in his sentencing remarks were plainly open to him and coincide with the version of facts adopted by this Court in Evans.  It is beyond doubt that this trafficking in any case involved the exchange of a considerable amount of heroin and a large amount of money over a four month period.

The Judge made no error in his approach to the fact finding in this case.  In those circumstances and after reviewing the comparable sentences mentioned earlier the sentence imposed on this applicant cannot be said to be manifestly excessive.

I would refuse the application for leave to appeal against sentence.

MACKENZIE J:  I agree.

DOUGLAS J:  I agree.

THE PRESIDENT:  The order is the application for leave to appeal against sentence is refused.