R v Matasaru[2000] QCA 246

DAVIES JA:  The applicant was convicted in the Supreme Court on his own plea of guilty on 5 January this year of the following offences; trafficking heroin, 10 counts of supply of heroin, possession of heroin with a circumstance of aggravation, possession of property in connection with the sale of heroin and fraud against the Commonwealth. The most serious of these offences was the trafficking offence and all others were related to it. The offences of supply constituted the trafficking.

On 21 January the applicant was sentenced to 12 years imprisonment on the trafficking count, six years imprisonment on the offence of possession of heroin and 12 months imprisonment for possession of property used in connection with its sale. No further penalty was imposed in respect of the other offences and all sentences were ordered to be served concurrently.

The applicant is 47 years of age having been born on 25 October 1952. He has no relevant prior convictions. The applicant became a heroin user after suffering a back injury at work in 1986 which caused him persistent and quite severe pain for which he found prescribed medication inadequate. However, he was able to overcome his heroin addiction but continued to sell heroin after that and these offences occurred after that.

His trafficking was, as the learned sentencing Judge found, for money only, although it was said on his behalf that it was to pay off debts to suppliers whom he feared might harm him or members of his family if he did not pay.

The supplies which constituted the trafficking were to an undercover police officer who told him that she was buying not for her own consumption but to sell on at a profit. Some of the sales were of substantial quantity, the largest being for 28 grams of powder containing 16 grams of heroin, that is having a purity of 58 per cent, for which he was paid $9,000. That was on 7 April 1997. In all the total weight supplied constituted over 49 grams of pure heroin for which the total payment was $28,000. It was plain that the applicant supplied to others.

When the police raided the applicant's house they found there 241 grams of powder containing 149 grams of pure heroin having an average purity of 64 and a half per cent. They also found cash of $22,000 in the house and $1,000 on the applicant's person.

It is plain from all this that the applicant was at the relevant time a substantial dealer in heroin, not wholly or even partly to sustain a heroin habit, but solely for profit. There was very little that could be said on the applicant's behalf and Mr Glynn did not attempt to say much in that respect.

The main points relied on his behalf were apparently his need to pay off debts for supply of heroin to avoid risk of violence to him or his family and that apart from the sales to the undercover police officer his other dealings appear to have been at street level.

Nevertheless it was submitted that the sentence of 12 years imprisonment was manifestly excessive, the range being 10 to 11 years. It was submitted on this basis by Mr Glynn that a sentence of 10 years imprisonment should have been imposed.

It is true that the applicant pleaded guilty and some allowance should be made for this, however, that should be limited because the Crown case was very strong and proof of it would not have been difficult. Moreover no attempt was made by the applicant to assist the police in identifying his suppliers.

The applicant relied primarily on a case of Nguyen CA No 151 of 1999, which was delivered on 9 July 1999. He also relies on two other cases, Lam CA No 166 of 1999, 30 July 1999 and Ianculescu CA No 194 of 1999, 22 October 1999.

Lam involved an addict who supplied solely or at least primarily to support his own addiction and is therefore plainly distinguishable from this case on that account. Circumstances not relevant here required the Court there to re-sentence the applicant and it did so by imposing a sentence of nine years imprisonment. The extent of his trafficking was comparable to that in this. But for the reason I have already mentioned, that the applicant was an addict, the case is not comparable.

Ianculescu involved trafficking to a greater total amount than in this case. A sentence of 10 years imprisonment was not reduced on appeal. That case involved the supply of heroin, cocaine and methyl amphetamine. The total amount for the supply of heroin was $52,000, for methyl amphetamine $900 and for cocaine $3,500. Like the applicant here the applicant there was not an addict.

On the other hand the amount of heroin and money found in the applicant's possession in this case makes this case at least as serious as that in Ianculescu. And one distinguishing factor, an important distinguishing factor between that case and this was that a considerable allowance must have been given by the Court for the co-operation which the applicant there gave to the authorities. It is for that reason very difficult to compare that case with this.

There is no doubt that in the case of Nguyen, to which I have referred, the heroin trafficking was to a much greater degree than this case. The initial sale was of a value of $6,000, 9.7 grams of pure heroin and there were subsequent sales indicating a capacity to supply at a similar amount.

More importantly, perhaps in that case, there was an agreement made that the applicant would supply to the undercover police officer 3 pounds of heroin for a total consideration of $285,000. This supply did not actually take place either in whole or in part because it was interrupted. But in fact the police, when they interrupted the supply of the first instalment of this deal, apprehended the applicant with a very large quantity of heroin on him.

It appears from conversations which were recorded that he expected to yield to himself about $99,000 if that supply had gone through. The total amount involved in the trafficking was in fact, I think, about 700 grams of pure heroin.

The sentence which was thought of as being the starting point for that case was 16 years reduced for a plea of guilty and for, amongst other things, the youth of the applicant, who in that case was only 22 years of age with a fairly minor criminal history.

It does not seem to me, with great respect, that that case indicates that the sentence which was imposed in this case was outside the range of an appropriate sentencing discretion. The sentence moreover is supported, in my view, by the sentences in Tran, CA No 111 of 1996, 20 May 1996 and Buciuman and Dobrovolski, CA Nos 342, 343 and 346 of 1996, 3 October 1996.

For offences of somewhat greater seriousness than this, that is, I mean, the offences of the actual supply and trafficking, Tran was sentenced to a total of 18 years imprisonment, a recommendation for parole being made after six and a half years.

This Court reduced the sentence by making sentences which cumulatively amounted to the 18 year sentence concurrent resulting in a total effective sentence of 15 years, still with a recommendation after six and a half years.

The case was probably more serious than this in that although up until the last transaction the total appeared to be much the same as this case. The last transaction involved a supply of nearly 17 grams of pure heroin for $22,000. This arguably indicated a dealer at a higher level who had a capacity to supply in substantial bulk. On the other hand in the present case, there was the very substantial amount of heroin which was found in the applicant's possession which indicated that he too had the capacity to do that. Tran was, like the applicant here, not an addict.

In Buciuman three applicants were all sentenced to 13 years imprisonment for trafficking with a recommendation after four and a half years. The total consideration in that case was about $48,000 and the pattern of supply is very similar to that here. Again none of the applicants were themselves users of heroin, and the applications for leave to appeal against that sentence were refused. The case may have been a little more serious than this, but in my opinion it supports the sentence which was imposed here.

It therefore seems to me that the cases to which I have referred indicate that the sentence imposed here was not manifestly excessive and I therefore refuse the application.

PINCUS JA:  I agree.

THOMAS JA:  I agree.

PINCUS JA:  The application is refused.