R v Ellis[2002] QCA 402

SUPREME COURT OF QUEENSLAND

[1]  THE COURT:  The applicant was convicted after a trial of carrying on the business of unlawful trafficking in the dangerous drugs heroin and methylamphetamine between 8 April 1997 and 28 November 1997 and of 13 counts of supplying those drugs on various dates during that period.  It is significant, in view of the nature of the application to which we shall shortly refer that seven of these counts of supply occurred after 1 July 1997.  They were one of supplying methylamphetamine on 1 August 1997, one of supplying heroin on 21 August 1997, one of supplying methylamphetamine on 22 September 1997, one of supplying heroin on 26 September 1997, one of supplying heroin on 1 October 1997, one of supplying heroin on 22 October 1997 and one of supplying heroin on 26 October 1997.  These occasions of supplying these drugs, together with the five occasions of supply before 1 July 1997, commencing on 14 April 1997, sufficiently showed that the applicant was carrying on the business of trafficking in both drugs over the whole of the period from 14 April 1997 to 26 October 1997.

[2] In fact the learned sentencing judge accepted the slightly longer period than this concluding that the only reason why the applicant desisted from his continuing in this business was that he was arrested on 28 November 1997.  The learned sentencing judge also concluded, and the evidence showed that the trafficking in fact escalated throughout this period.  It does not appear to us to be open to doubt that it continued unabated over the whole of the period which we have mentioned.

[3] A verdict of guilty on all these counts was returned on 25 March 2002.  Then on 19 April 2002 the applicant was sentenced to 13 years six months imprisonment on the trafficking count with a declaration that he had been convicted of a serious violent offence.  On each of the supply counts the learned sentencing judge recorded a conviction but imposed no further punishment.  She also declared that 30 days spent in custody between 20 March and 19 April 2002 be deemed time already spent in custody under the sentence.

[4] In his notice of appeal the applicant appealed against his conviction and sought leave to appeal against his sentence.  However before the commencement of the hearing of this appeal the Court was informed by the applicant's solicitor that he did not intend to pursue his appeal against conviction and accordingly it should be dismissed.

[5] The only basis for the application for leave to appeal against sentence is that the declaration to which we have referred should not have been made.  This was initially, put on two bases.  The first was that the act of trafficking was, it is submitted, committed before 1 July 1997.  Accordingly, it was said, s 11 of the Criminal Code (Qld) and s 20C of the Acts Interpretation Act 1954 (Qld) both have the effect that Part 9A of the Penalties and Sentences Act 1992 (Qld) has no application to it.  The second basis for the application was that the allegation that this is a serious violent offence should have been included in the indictment.

[6] However on the hearing of this appeal Mr Feeney, for the applicant, abandoned his first basis, relying only on the second.  Before turning to that we should say something further about the nature of the applicant's trafficking business.

[7] The learned sentencing judge found, and this was unchallenged in this Court, that the applicant's business was as a wholesaler in both heroin and methylamphetamine and that the applicant was easily able to obtain and supply large amounts of both.  She also found that the business of trafficking was a continuous offence which occurred before and after 1 July 1997 and adverted specifically to the application of Part 9A of the Penalties and Sentences Act.

[8] We have already mentioned that her Honour referred to this business escalating over the period to which we have referred.  That was also unchallenged in this Court and was strongly supported by the evidence.  Indeed the sales of heroin only commenced shortly before the middle of 1997 and increased in amount.  The last deal which the applicant sought to do involved nine pounds of heroin for a sale price of $940,000 from which the applicant expected to make a profit of $36,000.  It also appears from her Honour's findings on sentence that the applicant was continuously looking for ways to expand his business, raising on a number of occasions with one of his customers, who was in fact an undercover police officer, the possibility of also selling cocaine to him.  There were also specific conversations in which the applicant referred to his suppliers of heroin and amphetamines on 21 July, 20 August and 17 September and a journey undertaken to Sydney with the undercover police officer on 4 August to set up a heroin deal which fell through.

[9] The basis upon which Mr Feeney submitted that an allegation that this was a serious violent offence should have been contained in the indictment was that on the authority as he submitted of this Court of R v Mason and Saunders,[1] that fact was a circumstance of aggravation within the meaning of that term in the Criminal Code.  That term is defined in the Code to mean:

"any circumstance by reason whereof an offender is liable to a greater punishment than that to which the offender would be liable if the offence were committed without the existence of that circumstance."

It may be accepted that if that fact were a circumstance of aggravation it should have been charged in the indictment:  Criminal Code s 564(2).

[10]  The reason why Mr Feeney submitted that it followed from the decision of R v Mason and Saunders that this was a circumstance of aggravation was that, in Mason and Saunders this Court said that the effect of Part 9A was to punish the offender to a greater extent than was authorized by the former law, within the meaning of s 11(2) of the Criminal Code, and to increase the penalty of the offence within the meaning of s 20C(3) of the Acts Interpretation Act.  But it does not follow from this that it was a circumstance of aggravation.  For example an amendment to the Criminal Code increasing the penalty for an offence would come within both of those provisions but would plainly not be a circumstance of aggravation.  A circumstance of aggravation is an additional fact ("circumstance") proof of which subjects an offender to a greater punishment than that to which he or she would be liable if the offence were committed without that additional fact.  That is why it must be charged in the indictment.

[11]  Part 9A has the effect of, in some cases, automatically increasing the time which an offender will spend in prison before being eligible for release and, in other cases, permitting a judge to increase that time.  But it does this, not by stating a fact proof of which would make the offender liable to a greater punishment, but by defining the offences in respect of which that may occur.  Whether that does occur then depends relevantly, on the length of the sentence and, if it is more than five but less than 10 years imprisonment, on the discretion of the sentencing judge.  For that reason, in our opinion, it plainly does not state a circumstance of aggravation.  Nor does it, for any other reason, require any additional statement to be included in the indictment.

[12]  For those reasons, in our opinion, this application must be refused.

Orders

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.