R v Hyde[2002] QCA 72

COURT OF APPEAL

DAVIES JA

MUIR J

PHILIPPIDES J

CA No 319 of 2001

THE QUEEN

v.

MATTHEW ROBERT ARTHUR HYDEApplicant

BRISBANE

DATE 13/03/2002

JUDGMENT

PHILIPPIDES J:  This is an application for leave to appeal against a sentence imposed on the applicant upon his plea of guilty to a number of drug offences.  The sentence imposed was one of nine years' imprisonment and in addition an order was made that a suspended sentence of three years be activated to run concurrently with the sentence.

The offences in question involved one count of trafficking in heroin during the period 30 September 2000 to 31 January 2001. In addition the following summary offences were also dealt with:  one count of possession of heroin and cannabis sativa, one count of possession of property used in connection with the commission of an offence, one count of possession of a thing used in connection with a dangerous drug, namely a water pipe, and one count of possession of tainted property.

It appears that the circumstances of the offence of trafficking and heroin were that the applicant had been under surveillance which indicated that he was involved in selling various amounts of heroin.  During September 2000 and January 2001 the applicant sold varying amounts of heroin to an undercover police officer on seven occasions for a total sum of $14,350.  The undercover police officer represented herself as a dealer.  The amount sold to her was reflective of that.  A total of 59.612 grams of powder containing 29.96 grams of heroin at an average percentage of 50.26 per cent was involved. 

Whilst under surveillance the applicant was seen driving around and meeting a number of other people for short periods of time on several different occasions.  Indeed it was conceded that the sales to the undercover police officer were not the only sales made by the applicant.  He also told the undercover officer that he had purchased a car from the proceeds of the drug sales and that he normally picked up a quarter ounce of heroin a day.

The applicant had a prior criminal history.  Of particular relevance was the applicant's conviction on 11 February 1988 of dangerous driving causing death and grievous bodily harm.  The applicant was sentenced to three years' imprisonment suspended after six months for an operational period of three years.  The current offences were committed towards the end of the operational period of the suspended sentence.

In imposing the sentence, the learned sentencing Judge took into account the applicant's early plea of guilty, the fact that the applicant was remorseful, the fact that the applicant had taken steps to cure himself of his addiction and the fact that the applicant had a supportive family.  His Honour took into account psychological and other reports which indicated that the applicant was to some extent vulnerable. 

His Honour accepted that the applicant was supporting his own addiction, in addition to selling heroin with a commercial element, and that the applicant was making more money out of the enterprise than was required to support his addiction.  His Honour found that the trafficking which the applicant was involved in was not at the highest end of the scale but rather in the middle range. 

On the other hand his Honour noted that the amount of heroin involved in the sales to the undercover police officer was significant and that she was not the only person to whom the applicant was supplying.  His Honour took into account the seriousness of the offence of drug trafficking.  His Honour also took into account the fact that the current offences were committed during the last months of the operational period of the suspended sentence for dangerous driving causing death and grievous bodily harm. 

Counsel for the applicant submitted that the learned sentencing Judge wrongly took into account the discovery of items of property at the applicant's apartment.  It appears that various items of property seized from the applicant's unit were the subject of a further charge to which the applicant had pleaded not guilty and which was to be dealt with at some future stage in the Magistrates Court.  It was submitted that the learned sentencing Judge erred in making reference to the fact that certain of those items must have been purchased with money from the sales of heroin.  It is said that all that could be done with respect to the information as to the presence of those items was to consider that the applicant was not poverty stricken and was not selling drugs solely to support a drug habit.

I note it was conceded by the defence that the applicant was making money out of his drug dealing beyond what was required to support his habit.  It is apparent from the sentencing remarks that his Honour specifically did not find any property was purchased from the proceeds of the sale of heroin.  In particular I note that his Honour in sentencing stated:

"It seems also that you and your girlfriend were able to spend money on fairly frequent trips to the snow and that you had very expensive snow gear in the flat.  That must have been bought with some money from somewhere.  I do not find that you bought it from the sales of heroin but it is something I must take into account that it may well be the prospect that some of those items were purchased with that money.  All I need to say is that you obviously made more money out of the enterprise than you needed for your habit."

I do not consider that it has been shown that his Honour erred in this regard. 

It was submitted by counsel for the applicant that, by inference from the fact that the sentence of nine years' imprisonment with no parole recommendation was imposed, his Honour selected as a starting point for sentence a period of imprisonment in excess of what was appropriate for the instant case.  It was also submitted that the learned sentencing Judge failed to properly recognise the mitigating factors in the applicant's favour, these being an early plea of guilty, expressed remorse, attempted rehabilitation and there being no material to indicate the applicant had continued with his drug trafficking in the period from 29 November 2000 to 30 January 2001 and in addition the matters outlined in the reports of Mr Ryan and S Frye.

Counsel for the applicant referred to a number of cases said to be comparative and submitted that the range within which sentence should have been imposed was six to seven years with a recommendation for parole after serving two years.  One of the cases relied upon at sentence and on appeal is the decision in R v. Le [2000] QCA 392.  In that case a sentence of seven years' imprisonment with a recommendation for parole after two and a half years was not disturbed on appeal.  However, that case cannot be said to be comparable because of an important distinguishing feature which was described in that case as rare and exceptional.  That feature was that the respondent voluntarily desisted from any further trafficking notwithstanding pressure from the undercover police officer for further sales.

Counsel for the respondent submitted that it was significant that in committing the offences in question the applicant breached a suspended sentence and that his Honour could have been justified in imposing a cumulative term so that his Honour's decision to order that the terms run concurrently represented a significant discount to the applicant. This is particularly so given that the trafficking offence which activated the suspended sentence involved a number of deliberate acts. 

It was also submitted on behalf of the respondent that his Honour would have been within range in setting a head sentence of 10 to 12 years' imprisonment.  In that case a declaration that the applicant was convicted of a serious violent offence would have resulted.  It was submitted that a discounting of the sentence to nine years' imprisonment without the declaration represents an appropriate recognition of the applicant's plea of guilty and other mitigating circumstances. 

Decisions such as R v. Lam, CA No 166 of 1999, R v. Le, CA No 41 of 2001 and R v. Bujora, CA No 78 of 2001 indicate that a head sentence in the region of 10 years would have been within range.  In R v. Le, Thomas JA and Pincus JA indicated that a starting point for the trafficking offence in that case, absent mitigating circumstances, was between 10 to 12 years and that the factors of youth, a plea of guilty and the voluntary desistence would justify the sentence of seven years.  Their Honours refused to interfere with the recommendation of parole after two and a half years as being too minor an adjustment with the alternative of an automatic consideration of parole after three and a half years. 

In my view, if one looks at the sentence imposed taking into account the breach of the suspended sentence, it cannot be said that the sentence imposed was manifestly excessive.  Accordingly, I would refuse the application for leave to appeal.

DAVIES JA:  I agree.

MUIR J:  I agree.

DAVIES JA:  The application for leave to appeal is dismissed.