R v George[2001] QCA 135

COURT OF APPEAL

McPHERSON JA

WHITE J

DUTNEY J

BRISBANE

DATE 06/04/2001

JUDGMENT

WHITE J:  The applicant for leave to appeal against sentence pleaded guilty on 22 November 2000 to one count of trafficking in dangerous drugs, six counts of supply of dangerous drugs, one count of possession of dangerous drugs, two counts of possession of dangerous drugs each with a circumstance of aggravation, and one count of possession of a mobile phone used in connection with the crime of drug trafficking. 

The applicant was sentenced to 14 years imprisonment in respect of the drug trafficking charge. Although convictions were recorded no further penalty was imposed with respect to the other charges.

The offences were committed between 31 March 1998 and 17 December 1998.  The applicant was aged 51 at sentence and 49 during the year of the offences.  He had previous convictions for drug offences for which he had served short terms of imprisonment in New South Wales or had received a fine. The convictions related to heroin, cocaine and cannabis. 

The applicant supplied both heroin and cocaine to an undercover police officer who had taped their conversations.  The applicant sold over four transactions which were set out in the indictment, 251.36 grams of powder containing 178.511 grams of pure heroin and 131.196 grams of powder containing 84.530 grams of cocaine. 

$23,500 was paid to the undercover police officer together with $40,000 which was paid on 16 December 1998 which was the last sale so that the $40,000 was recovered.

A bag owned by the applicant had been intercepted at the airport search and a small trace removed of white powder on 19 June 1998 which was shown to be cocaine. 

A complicating factor was that the applicant was being dealt with or had been dealt with in New South Wales for drugs.  He was the subject of a National Crime Authority investigation.  Unfortunately, the reference to the New South Wales proceedings was rather vague in the prosecutor's statement to the Court.  I will quote briefly from what the prosecutor had to say appearing at pages 6 and 7 of the record:

"At one point the prisoner tells the undercover agent that he was making about $100,000 a year from the sale of these drugs.  Now, it may be said that that was perhaps a little bit of bravado on his part that he was saying these things but there was an order in the New South Wales Supreme Court where the New South Wales Crime Commission obtained an order for $300,000 being the amount of moneys derived by this prisoner for the six years before 24 December 1998."

The prosecutor went on to say that the Crown was going to rely on that order to the extent that while the prisoner was to some extent a resident of New South Wales he had a house here in Toowong and that he had paid cash in the sum of $220,000 for that house. 

The prosecutor went on to say that there had been an assessment of the applicant's financial records which would indicate his business was a front for the drug proceedings and indeed the prosecutor indicated that it may have been necessary to adjourn the sentence if there were to be problems with those matters.

It would appear from what Mr Hampson has been able to tell us today that the applicant has not been dealt with with respect to trafficking in drugs in New South Wales at the present time but that there has been the order in the nature of a pecuniary penalty order of $300,000 made either by or at the behest of the National Crime Authority which order was, at the time of sentence, the Court was informed, and still is, under appeal.

In my view, this was certainly a case where an agreed statement of facts on sentence was called for, as so often happens in drug cases where there is to be a plea of guilty.

When sentencing the applicant, his Honour erroneously, as is admitted by Mr Byrne for the respondent, stated that the amount of powder was the amount of pure drug.  This was a significant difference to set out the gross amount of powder as representing the net amount of dangerous drug if his Honour thought that those were, indeed, the amounts upon which he was to sentence this applicant.

However, his Honour's comments throughout the submissions did not suggest to me that he had anything other than the correct amount in mind and mentioning the gross amount was merely a slip, and this is borne out when one has regard to the approach that his Honour took to sentence.

The major issue on sentence was how much money the applicant made from his trafficking in dangerous drugs.  The prosecutor made reference to the financial analysis of the applicant's affairs by the National Crime Authority.  No evidence was offered apart from the statements.  His Honour was told that the applicant had paid cash in the sum of $220,000 for a house in Brisbane which I have already mentioned, $19,000 cash for a swimming pool to be installed, cash payments of school fees and other payments in cash.  His Honour referred to these figures after he had mentioned that the amount of $100,000 per annum profit was disputed saying, "In any event, it is plain that you made a handsome living", record 31.

The applicant contends that his Honour erred in relying on those factors since they were readily referrable to the applicant's New South Wales drug business.  He has not yet, as I have mentioned, been dealt with for trafficking in New South Wales. 

It is quite clear that an extraterritorial factor in cases of this kind is no impediment to jurisdiction.  This Court dealt with that matter in Goulden (1991) 53 Australian Criminal Reports 404.  Justice Thomas referred to the pitfalls involved in separate proceedings where the business of drug trafficking spans two or more States, at 407, but he particularly was referring to the need for care on sentence.  His Honour said:

"The need for accurate designation of the basis of the case against the appellant is quite acute.  The basis of the present conviction will need to be clearly understood so that it can be ensured that he is not subjected to further penalty for the same acts and omissions when he is dealt with by a Court in New South Wales:  cf section 16 of the Code which provides that he is not to be twice punished for the same acts or omissions and Connelly v. Maher, ex parte Maher, 1962 CLR 682 and 684."

Since, as far as this Court can be assured, the applicant has not been sentenced in New South Wales, there is, in my view, no reason why his Honour could not regard generally the activity in New South Wales as part of the Queensland business of trafficking in dangerous drugs.  It will be a matter for this basis of the sentence to be drawn to the attention of any sentencing Court in New South Wales should it be called upon to sentence this applicant for similar offences in that jurisdiction.

Another error is said to be the use which his Honour made of the reference by the prosecutor to the $100,000 per annum as representing the applicant's income from drug dealing.  The prosecutor said that the applicant had made this boast to the police agent.  Mr Farr, counsel below, said that his client had no recollection of saying this and it did not show up on any of the tapes.  Of this, his Honour said,

"It is said that you admitted making $100,000 from your trade.  That is now disputed but I note that you do not put forward any figure which you are prepared to admit as being the income which you made from trafficking in drugs."

- record pages 30 to 31.  There was certainly no evidence to support $100,000 being made from trafficking in drugs for which the applicant was charged in this jurisdiction.  There was no particular obligation on the applicant to proffer any figure in mitigation and, again, this demonstrates the problems which can arise when a sentence is approached without written agreement as to the facts or failure to tender actual evidence.  But, in my view, his Honour made proper reference to the state of this evidence in the extract from his Honour's reasons which I have just referred to.

The applicant further contends that the sentencing Judge erred in making reference to the higher estimated profit from the sale of these drugs rather than the amount which was admitted through the applicant's counsel.  One, Barry Adams, an intelligence analyst with the National Crime Authority gave evidence in the form of a statement tendered to the Court that the applicant's profits on the charged transactions could have ranged from a minimum of $6,000 to a maximum of $32,000 for both the cocaine and the heroin.

Mr Farr put his client's instructions of a profit of $9,500.  The only proper evidence was Mr Adams' evidence but neither did the prosecutor indicate that the applicant's figures were not accepted.  Again, the problem of no proper evidentiary basis for an assertion of fact arise.  His Honour was entitled to express the range of profit in the way in which he did.  In my view, there was no error in so adoing.

A further complaint of the applicant is that, in sentencing him, the learned sentencing Judge took insufficient account of the two year period between the conclusion of the trafficking offence in December 1998 and the sentence which was imposed.  During that time, it was said that the applicant had attempted to rehabilitate himself in a legitimate, profitable business. 

Mr Hampson drew the attention of the Court to the case of Brockfield, CA No 229 of 1993, but, in my view, that case has features which make it quite distinguishable from the present. 

It is, of course, always desirable that there should be a close correlation between the charging of an offence and the matter coming on for trial or for sentence but there is no delay that can be pointed to the prosecution in this case neither would it appear to be any particular delay which can be pointed to the applicant.  It simply seems to have revolved around the investigations of the National Crime Authority in New South Wales and the time that it took those matters to be completed.  His Honour, in my view, was not required to give any particular weight to this factor. 

His Honour took account of the plea of guilty which he recognised was a significant saving to the community.  He reduced the sentence which he would have imposed of 16 years to one of 14 to take account of this fact.

The applicant further contends that the cases that had been advanced before his Honour contained flaws inasmuch as they were decided prior to the introduction of the serious violent offender legislation.  That, in my view, is a wrong approach.  This Court observed in Booth, CA 33 of 1998 and in other cases that that is not a factor once the sentence is over 10 years that should infect or affect the sentencing discretion of a Court.  To do otherwise would be to attempt to circumvent the clear intention of the legislature. 

There are a number of cases which have been referred to and I particularly mention Tran, CA No 11 of 1996, Nguyen, CA No 151 of 1999 and Matasaru, CA 24 of 2000, and the most recent case of Truong and Nguyen, CA Nos 278 and 308 of 2000, dealing with heroin traffickers.

The recent decision of Truong and Nguyen makes clear that a starting point of 16 years, which was mentioned in Nguyen did not establish the appropriate starting level of head sentence in cases of drug trafficking.  The primary Judge in that case took a notional starting point of 20 years and made a reduction of two years for the plea of guilty.  The Court of Appeal allowed the appeal to the extent only of making an allowance of four years for the plea of guilty.

It is true that, in that case, there were significantly more quantities of heroin involved but it is significant that the matter of principal to which I have referred which appears at pages 6 and 7 of the President's reasons and at page 9 where Justice McPherson similarly said that there is no particular starting point of 16 years established.

In Tran, there were 44.485 grams of heroin sold for an amount of $48,730.  Penalty of 15 years imprisonment was not interfered with.  The only interference which the Court of Appeal made was to make the sentence concurrent with an existing sentence of three years.  It had been made a cumulative.  That case had the additional factor that the appellant was on bail for drug offences.

In Nguyen, the case to which Mr Hampson has had most regard, the amount of heroin was 591.86 grams for an amount, it would appear, of about $99,000.  There the applicant was only 22 years of age.  Sixteen years, as I have mentioned, was said to be the starting point and a penalty of 13 years was said to be appropriate.

In Matasuru, the amount of heroin was 49 grams for which $28,000 was paid and a penalty of 12 years was imposed.  When one takes into account the quite significant previous criminal history for drugs as well as other matters in this applicant's criminal history, in my view, it cannot be said that the sentence which was imposed by his Honour was manifestly excessive and I would refuse the applicant.

McPHERSON JA:  Yes, I agree with those reasons and I, too, would dismiss the application for leave to appeal.

DUTNEY J:  I agree as well.

McPHERSON JA:  The application for leave to appeal against sentence is dismissed.