R v Trzcinski[2000] QCA 403

COURT OF APPEAL

McPHERSON JA

THOMAS JA

WHITE J

CA No 191 of 2000

THE QUEEN

v.

IAN JAMES TRZCINSKI Applicant

BRISBANE

..DATE 29/09/2000

JUDGMENT

THOMAS JA:  This is an application for leave to appeal against a sentence imposed for possession of cannabis in excess of 500 grams.  The sentence was two and a half years imprisonment with a recommendation for parole after serving 12 months.  257 days of pre-sentence custody were taken into account.

The applicant was 43 years of age at the time of sentence.  He has an extensive criminal history spanning some 27 years in two States.  The offences are mainly drug-related and include a number of breaking and entering offences and a number of less serious offences.  He has been sentenced to terms of imprisonment on about 10 occasions, the longest period being two and a half years cumulative on an activated suspended sentence.

The applicant in this matter acted as a courier for a cannabis trafficking enterprise.  On 9 October he flew to Adelaide.  Various bags also went in the luggage compartment on that trip under his ticket which was in the false name of Utteradge.  The applicant, however, was not aware of their contents.  One of them contained $89,000 in cash.

While in Adelaide he met the Brisbane principal of the enterprise, one Ellis.  The next day the applicant flew back to Brisbane with two bags containing about almost 15 kilograms of cannabis.  Again he was not aware of their contents but admits that he knew something "suss" was going on and subsequently an admission of his awareness that cannabis was involved was made to the police.

On arrival in Brisbane he was met by the co-accused Dyer.  They collected and carried the bags to a vehicle.  The applicant was driven home and Dyer remained in possession of the bags.  They were later seized by police.

When first interviewed the applicant denied involvement.  He later admitted he was involved in the transportation of cannabis and that he had realised during his stay in Adelaide that he was assisting in a criminal activity.  He believed he was transporting items associated with unlawful drug activity.  It was also said that he did not know exactly what drug or what quantities were involved.

At the hearing his counsel mentioned on his behalf that he suspected that luggage containing some amphetamine glassware would be coming back with him from Adelaide.  As the learned trial Judge observed that excuse cuts both ways.

The appellant was not paid in cash but all his expenses including air travel, alcohol and food were paid for him.  The offence is aggravated by the fact that he had been released only three weeks before from prison which related to the production of amphetamines.  It was essential that a sentence of imprisonment be imposed and defence counsel did not submit otherwise.

The applicant presented the equivalent of an outline of argument as his grounds of appeal and he orally developed some of these.  They include some assertions of fact which vary from those which were presented upon sentence.  One of these was his statement that he surrendered himself to the NCA authorities.  In the light of later statements that seems to be based on the fact that he did not run away between the time of their first visit and the time when they began serious questioning of him.

With respect to the reference to transporting the glassware he commented in his submissions, "I figured that glassware is legal until it is used".  It is not a persuasive submission.  He correctly points out, "My criminal history may be extensive but it is not major" and that of course is noted.

His present allegation that he went to Adelaide in the hope of being offered work as a bricklayer and that it was "a free trip to see the boss" is not promising.  Nor is it in accordance with the material upon which the sentence was based, and upon which both the Court below and this Court should act.

Although not a principal, the appellant's role was an important one in the objective of transporting a significant quantity of cannabis into Queensland undetected.  His claimed lack of knowledge in relation to the nature of the expenses paid trip to Adelaide and of limited knowledge of what was going on was the result of his own deliberate decision not to ask questions.

His plea of guilty entitles him to some consideration, but there appears to have been a strong case available based upon extensive direct surveillance.  His significant criminal history and re-offending recently after release from prison also justifies a sentence of the kind that was imposed.

One matter deserves mention, namely the suggestion of lack of parity between the sentence imposed on him and that imposed on his co-accused Dyer.  Dyer's open sentence was two years with parole recommendation after nine months.  Although Dyer had a greater involvement in the trafficking business he was not a principal.  He was 68 years old and he appears to have given considerable cooperation and assistance to the police and also to have assisted by wearing a wire and giving a section 13A undertaking.  It is to be inferred that his cooperation has been valuable to the authorities and that he has subjected himself to some risk as a result.

Accordingly a considerably discounted sentence would be expected in his case.  Accordingly there would be nothing surprising in the sentence that has been imposed on him when a comparison is made with that imposed on the applicant.

In all the circumstances I do not think that this Court should interfere with the sentence that was imposed below and I would refuse the application.

McPHERSON JA:  I agree.

WHITE J:  I agree also.

McPHERSON JA:  The order is that the application for leave to appeal against sentence is refused.

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