R v Bodnar[2001] QCA 127

COURT OF APPEAL

McMURDO P

WHITE J

DUTNEY J

CA No 27 of 2001

THE QUEEN

v.

TRAIAN BODNAR Applicant

BRISBANE

DATE 04/04/2001

JUDGMENT

THE PRESIDENT: Justice White will deliver her reasons first.

WHITE J: The applicant, who appears on his own behalf, seeks an extension of time within which to appeal against his conviction and for leave to appeal against sentence.

On 9 May 1994, he was convicted after a trial of one count of trafficking in heroin and seven counts of supply of heroin.  He was sentenced on 13 May 1994 to a term of imprisonment of eight years with a recommendation that he be eligible for parole after serving three and a half years of that sentence, with a declaration of time spent in custody of 13 days.

The applicant was released to home detention on 8 September 1997 and to parole on 12 December 1997. He pleaded guilty on 24 November 2000 to a charge of unlawful production of cannabis, which the sentencing Court, constituted by Mr Justice Chesterman, accepted was for his own use.

The applicant was recommitted to custody on 17 February 2000, his parole having been suspended because of the drug production charges. His Honour imposed no further penalty having taken the view following a decision of mine in Smith v. The Queensland Community Corrections Board, Number 886 of 2000, of 3 November 2000, that the applicant's sentence had come to an end at the latest on 17 April 1999, taking into account remissions earned by him on that sentence.

The approach in Smith was reversed on appeal. In the meantime, amendments to the Corrective Services Act which commenced on 24 November 2000 extinguished a prisoner's entitlement to remission on his sentence if, inter alia, he had been granted leave of absence to home detention or released on parole.

These amendments would appear to apply to this applicant. He continues to be held in custody and his further application for parole is suspended pending these matters presently before the Court.

The applicant's notice of appeal was received by the Registrar of Appeals on 14 February 2001. That was well over six years from the time when the Rules and the Code provide for the filing of an appeal. His explanation for the delay is set out in his application, which he has also added to by oral submissions today and by fresh written submissions.

In his written notice he has given as his explanation for delay that he is an inmate at a correctional centre and his lack of legal knowledge has disadvantaged him in that he did not previously know his rights and did not understand the legal implications of the errors detected in relation to his sentence.

Today before the Court he has said that his solicitor and counsel told him that there were no appellable grounds after he had been sentenced. 

In 1996 he appeared before the learned trial Judge with respect to a pecuniary penalty order. He raised with his Honour the concerns that he had with respect to his trial, but his Honour said that he was not there to give him legal advice - quite properly, if I might say so, with respect - but that there were ways and means of correcting such errors. He further added that he had no money to instruct a solicitor to investigate these matters.

The approach of this Court to applications for extensions of time has been expressed recently in Tait [1999] 2 QR 667 and Armstrong [1996] 1 QR 319. The Court to which an application is made will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension sought. That course may involve some assessment of whether the appeal has any prospects of success.

In Tait, the Court observed at page 668 that a factor to consider is the length of the delay, it being much easier to excuse a short rather than a long delay. 

The applicant's explanation for the delay is not compelling. He was no stranger to the legal system when convicted and sentenced for these offences in 1994, having a prior criminal history including having served a term of imprisonment for possession of what was found to be a commercial quantity of heroin. He had been out in the community for approximately 18 months, it would appear, on the calendar before the Court, before being arrested for the cannabis production charges, and certainly could have sought some advice then, even though it was of course at that stage very much out of time.

Further, the applicant was represented at his eight day trial by a very experienced criminal counsel, Mr Donaldson, who was instructed by solicitors well versed in the criminal law. The applicant maintains that he followed the instruction of his counsel and solicitors that in effect he should not really contest much of what was brought against him by way of the supply charges. But the trial extended over eight days and was described by the learned trial Judge as bitterly contested when he came to sentence the applicant.

Further, the solicitors have responded to the applicant's recent inquiries about finding the tapes which were played in the course of the trial and which had been recorded by the undercover police officer when he was engaged in supply deals with the applicant. There is no reason to suppose that he would not have had his case reviewed for the purposes of an appeal had he sought that course at the appropriate time.

Neither in my view does the justice of the case suggest that an extension of time ought to be granted. Although the applicant has said that, and I quote from his letter to the Court, at this stage "he has been left with no alternative than to abandon his appeal against conviction" because he has been unable to obtain the tapes recording those conversations which I have mentioned between himself and the undercover policeman to whom he supplied the heroin, he says before this Court that that really only applies to his ground of appeal which relates to those tapes.

It is not inappropriate to make some comment upon all of the grounds of the appeal against conviction which have been advanced by the applicant. The main grounds are that the trial Judge did not draw a distinction when summing up to the jury between the roles of principal and secondary offenders, and permitted the jury to use the transcripts of the tapes when listening to the tapes.

The Crown case was that the applicant was the principal, but if the jury thought that another man had played the dominant role in the enterprise, nonetheless the applicant was caught by the other provisions of Section 7 of the Code. The applicant, in effect, admitted supplying the undercover police officer, but, as he persists today before the Court, he played but a minor role in carrying out the instructions of others.

The question for the jury was whether he was engaged in the business of trafficking in heroin. In a long and careful and fair summing-up to the jury, extending over two days and more than 120 pages of transcript, the trial Judge drew to the jury's attention the relevant law, much of the evidence and the approaches of the Crown and the defence.

The primary and, if the applicant wishes to use this expression, the secondary basis of liability pursuant to section 7 was carefully covered by his Honour not once but twice.  Save for one minor factual matter there was no request for redirection by the defence and none at all by the Crown and for my part I can discern no appellable error in his Honour's approach to this matter at all.

Associated with the applicant's complaint about his Honour's approach to primary and secondary offenders is a complaint that his Honour did not seek from the jury an indication as to whether they found him guilty as a principal or an accessory but that, as the applicant now understands, is impermissible.

The other ground of complaint is that the trial Judge permitted the jury to have copies of the transcript of what was said to be contained in the undercover tapes while the tapes were being played in Court. The tapes were, it seems, in places unintelligible. The applicant's counsel said that he did not object to the tapes being in evidence but did object to the jury having the transcript because the transcript might be misleading.

The applicant contends today that he was advised not to challenge his allegation that the tapes had been interfered with because that might then expose him to cross-examination about his prior criminal convictions relating to dangerous drugs.

The Court does not have available to it the whole of the transcript but from the material which the applicant has been able to provide it appears that his Honour ruled that the jury might have the transcript as an aid in the courtroom in the course of the trial but not when deliberating.

His Honour revisited that issue subsequently and again acceded to defence counsel's submission that the transcript ought not be taken into the jury room when they were deliberating. But it seems to have been agreed that if the jury wished to listen to the tapes again they would be brought into the courtroom and the tapes played and they would have access to the transcript then.

His Honour warned the jury appropriately, in my view, that the tapes constituted the evidence. He told them why it was important to listen to the tapes carefully. They were instructed clearly that where there any discrepancies discerned by them between the tapes and the transcript, the transcript had to be ignored.

There appears nothing in the grounds of appeal which would suggest, notwithstanding the long delay, that an extension of time ought to be granted with respect to the convictions. As to sentence, the applicant contends that he ought to have been sentenced as an accessory to the supply and trafficking rather than as a principal offender.

The sentencing Judge was entitled to take the view which he did of the evidence, consistent with the jury's verdict, that the applicant was the principal offender. Clearly, by its verdict, the jury did not believe the applicant who had given evidence in the witness box.

The applicant says that his sentence is manifestly excessive. The Crown sought a term of imprisonment of about 10 years.  Defence counsel submitted the range was five to ten years. The applicant had been paid $25,700 for 24.662 grams of powder which had a pure heroin content of 3.035 grams ranging from 5.9 per cent to 14.6 per cent purity. The last supply was an offer to supply as it was a fraud, being crushed Panadeine tablets, and the police were able to recover the $10,000 paid. 

In his written outline the applicant has mentioned three sentences which he submits are comparable. It might be mentioned also that a man whom he implicated as the principal offender in these transactions had a lesser sentence imposed upon him but, as the learned sentencing Judge observed, he had assisted the police in detecting numerous offenders presumably involved in drugs.

The three sentences in the written outline postdate the sentence here. They would appear to be single Judge decisions although for that reason they should not necessarily be rejected and they are only summarised by the applicant. There are no copies available to the Court.

In the course of his oral submissions the applicant has also handed up a number of decisions dealing with trafficking in heroin which he says are comparable. At the outset it might be noted that they are, to a large extent, cases following a plea of guilty in which there were significant mitigating aspects either because the person was a heroin addict or a heroin dependent person or there were other tragic circumstances in that person's history.

The matter of Bruce Giang which has been handed up was a matter where eight years' imprisonment was imposed for 11 supplies and a trafficking conviction. That was described as towards the top of the permissible range and whilst some greater leniency could have been extended the sentence was not manifestly excessive.

It was a less sum of money.  There were 6 grams of pure heroin and a higher range of purity. The person was not a drug addict and was engaged in the business for commercial gain. Here, too, although the applicant said that he used heroin for pain relief he did not suggest that he was a drug dependent or a drug addicted person.

Finally, the applicant had a prior history of possession of heroin in a commercial quantity. He had shown no remorse and the sentencing Judge mentioned the need for personal as well as general deterrence. Factors personal to the applicant, his very young family in particular, prompted the sentencing Judge to recommend parole eligibility after three and a half years, which he seems to have obtained. It was not, in my view, a penalty outside the range of a sound sentencing discretion.

There has been extreme delay in making this application. The explanation is not strong.  In fact it is to the point of being virtually no explanation at all.  In my view the justice of the case does not suggest that an extension of time ought to be granted and I would refuse the application.

THE PRESIDENT: I agree.

DUTNEY J: I also agree.

THE PRESIDENT: The order is the application is refused.

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