R v Le[2001] QCA 290

COURT OF APPEAL

DAVIES JA

THOMAS JA

PHILIPPIDES J

BRISBANE

DATE 24/07/2001

JUDGMENT

DAVIES JA:  The applicant was convicted on his own plea of guilty in the Supreme Court on 31 January last on a number of counts involving the sale and possession of heroin, the most serious of which was trafficking.

He was also convicted on 10 counts of supply, one of possession, one of possession of a thing used in connection with supplying heroin and one of possessing property obtained in supply.  He is 23 years of age and, like many offenders of this kind, he has no other serious criminal convictions except for one of possession of a drug and utensil during the period of commission of some of these offences.

He was sentenced to nine years imprisonment.  He seeks leave to appeal against that sentence on the ground that it was manifestly excessive. 

The applicant was caught in the course of a large undercover police operation jointly conducted by the Queensland Police and the National Crime Authority.  A number of other offenders were also caught in that operation. 

The applicant pleaded guilty, not because of any apparent remorse, but because of, it seems plainly enough, recognition of the strength of the evidence against him.  The applicant twice supplied heroin to an undercover police officer in September 1999 and then trafficked in the drug for a period of three months from March until June 2000.  A total weight of over 10 grams of pure heroin was involved at a percentage of 41.53 per cent in white powder.  He was able to obtain and supply heroin at short notice and he spoke of his selling to others than the undercover police operator. 

The most substantial of the transactions was a proposed transaction which did not proceed pursuant to which the applicant had agreed to supply 336 grams of heroin initially for the sum of $60,000.  It seems that the only reason why it was not supplied was that before delivery was to take place the applicant increased the price to $70,000 and the undercover police operator then refused to proceed. 

As Mr Byrne QC has pointed out the applicant has demonstrated that he is a persistent offender not only by his sales, of which he spoke to others as well as the undercover police operator, but also because he continued to traffic notwithstanding an appearance in Court in April 2000 and the service of a notice to appear in relation to drug charges on 15 June. 

The sentence of nine years imprisonment imposed by the learned sentencing Judge was imposed by reducing what would otherwise have been a sentence of 10 years to one of nine years to allow for the plea of guilty.  No declaration was made, notwithstanding a request on behalf of the prosecution, that the offence was a serious violent offence.

The applicant is himself a drug addict, but it is plain from the extent of the trafficking to which I have just referred that profit-making must have been an important motive in his activities.  A short survey of the comparable sentences shows in my opinion that the sentence imposed here was not manifestly excessive.  In Sebez CA No 100 of 1994, 17 May 1994, an applicant who pleaded guilty to one count of trafficking and 10 of supplying heroin was sentenced to nine years imprisonment with a recommendation for parole after three.  He was 32 years of age with no criminal history of great significance.  The quantities and amounts involved in that case appear to have been less than those in this case, certainly in the case of the last proposed sale.  This Court, after analysis of the comparable cases, refused leave to appeal.

In Le Gradi CA No 469 of 1993, 4 March 1994, the applicant was also sentenced to nine years imprisonment with a recommendation for parole after three years for one count of trafficking and 12 of supplying heroin.  Mention was made in the judgment of this Court of substantial quantities although the actual quantities were not mentioned.  The case was described as one of a moderate level of trafficking in which the applicant did not make a great deal of profit.  He was 45 years of age.  The submissions made on his behalf on appeal were not that the sentence imposed was too high but that the recommendation did not make sufficient allowance for personal factors to which reference was there made.  No such question is involved here.

In Giang CA No 313 of 1997, 24 September 1997, a 22 year old who pleaded guilty to trafficking over a period of three months, including 11 counts of supplying heroin, was sentenced to eight years imprisonment, which but for the plea of guilty it was said would have been a higher sentence.  The total amount involved there was about $8,000.  It appears he was not an addict and was in the business to make money.  The application for leave to appeal was refused.

The only factor which can be said is in the applicant's favour here is his youth, only 23 years of age.  I have already mentioned that he has had dealings, not only with the undercover police officer but with other people and mentioned how busy he was.  In my opinion the sentence imposed was not manifestly excessive and accordingly I refuse the application.

THOMAS JA:  I agree.

PHILIPPIDES J:  I agree.

DAVIES JA:  The application is refused.