R v Mustafa[2006] QCA 231

SUPREME COURT OF QUEENSLAND

KEANE JA:  On 17 March 2006, the applicant was convicted on his plea of guilty of one count of unlawfully trafficking in the dangerous drugs, heroin, cannabis and cocaine, one count of unlawfully supplying the dangerous drug cocaine to another person, one count of unlawful possession of the dangerous drug heroin, one count of unlawful possession of the dangerous drug cannabis, one count of unlawful possession of the dangerous drug methylamphetamine and one count of unlawful possession of the dangerous drug methadone. 

He was sentenced to 12 years imprisonment for the offence of trafficking and to lesser concurrent terms in respect of the other offences, including seven years imprisonment for the offence of supplying a dangerous drug to another person. 

The applicant seeks leave to appeal against the sentence of 12 years imprisonment imposed in respect of the trafficking offence on the ground that the sentence was manifestly excessive. 

As to the circumstances of the offences, the applicant's trafficking in dangerous drugs occurred between 1 October 2001 and 7 March 2003.  The supplying charge related to the period between 19 August 2002 and 25 September 2002.  The possession charges related to 22 February 2005.  Because the applicant does not seek to challenge the sentence imposed in respect of the less serious charges, it will not be necessary to discuss the circumstances of those offences.  The focus of attention must be on the circumstances of the applicant's trafficking in dangerous drugs.

The law enforcement authorities intercepted the applicant's mobile telephone calls between 20 August 2002 and 6 March 2003.  He was kept under surveillance during this period and was apprehended on 6 March 2003. 

The applicant told police that he commenced selling heroin to support his own addiction.  At its height, his addiction ran to the use of two and a half to three grams of heroin per day. He admitted that he had been trafficking for 18 months.  Over that period he sold heroin to a customer base of about 30 people.  He sourced his supplies from one Ion Ancuta who was taken into custody in New South Wales on 27 February 2003.  He also implicated Ancuta's wife in the supply of heroin to him.  It should be said here that it does not appear that Ancuta was apprehended because of information provided by the applicant.

Having started in a relatively small way of business, the applicant was eventually selling up to $4,500 worth of heroin per day with the usual daily amount being in the order of $2,500.  At the time he was apprehended in March 2003, he was making 10 to 15 sales per day.  He also sold, on a much lesser scale, cannabis.

The applicant's business was efficiently organised and well developed at the time he came to the attention of the authorities.  He acted as a middle man between his supplier of heroin and his customers.  He operated from 10 am to 8 pm seven days a week.  He received orders in code over the phone and would drive to pre-arranged meeting spots to supply heroin.

He provided assistance to the police in relation to the breaking of the code and the consequent strengthening of the case against Ancuta and his wife.  The learned sentencing judge accepted that the applicant's assistance to the police was significant.  On the other hand, her Honour described the applicant's business as "trafficking in drugs [on] a very, very grand scale".

The applicant's trafficking in cocaine commenced as a result of the arrangement of supplies of cocaine to the applicant by one of his heroin customers, who had access to a large amount of cocaine.  A small amount was supplied and on-sold by the applicant to another supplier.  The applicant arranged to take delivery of five kilograms of relatively high purity cocaine for resupply at the wholesale level, but the applicant's supplier was apprehended by the authorities before this transaction could be completed.

The applicant arranged to have someone visit his supplier in prison with a view to finding out the source of the cocaine.  Police searched the applicant's house on 6 March 2003.  On that occasion, police found the applicant in possession of a quantity of heroin, $2,800 on his person, and a set of scales with traces of heroin.  The applicant's mother's home was also searched.  Some $38,430 in cash was found there.  Apparently the applicant was helping to fund renovations which were being carried out at his mother's house.

At this time the applicant was found to have $20,462 in bank accounts.  He had purchased a motor cycle for $32,000 in May 2001 and a work van and tools for at least $10,000 in January 2003.  The applicant had no other source of funds than his drug trafficking because he had not pursued honest employment for many years.

The applicant gave interviews to the authorities in March and April 2003.  As I have said, he made extensive admissions in relation to the extent of his drug trafficking and in particular he confessed to trafficking for a period of 12 months of which the police were not aware.  He also assisted in the further investigation of the drug network in which he was involved, informing the police of the identity of his supplier of heroin and interpreting the codes used to arrange sales.

He was released on bail for the trafficking and supplying offences.  It appeared that he was recovering from his own heroin addiction when he resumed the use of heroin.  He missed a court appearance which led to police searching his house on 22 February 2005.  On that occasion the police found the drugs the subject of the possession charges.  These drugs were for personal use.  The applicant was remanded in custody for 20 days and then released on bail.

As to the applicant's personal circumstances, he was born in Cyprus on 8 July 1968.  He was thus between 33 and 36 years of age when the offences occurred.  He was 37 years old when he was sentenced. 

The applicant's family migrated to Australia when he was a young boy.  His father was violently abusive towards the applicant, his siblings and his mother, according to the account given by the applicant to Miss Jacqui Yoxall, a consultant psychologist.

The applicant is a heroin addict.  His criminal history began with an offence of possession of a dangerous drug in 1990.  He was fined for receiving and false pretences in 1994.  In 1996 he was placed on two years probation and ordered to perform 100 hours of community service in relation to six counts of unlawful exposure and one count of possessing a dangerous drug. 

Later in 1996 he was sentenced to three years probation for 15 counts of false pretences and sentenced to two years imprisonment, wholly suspended for three years, for two counts of false pretences and three counts of stealing.  He breached these orders by soliciting for the purposes of prostitution.

His dependence on heroin was well-established by 2001.  It was Ms Yoxall's opinion and not disputed by the Crown before the sentencing judge, that the applicant's descent into heroin addiction was related to his unfortunate childhood.  According to Ms Yoxall, the applicant suffers from a major depressive disorder.  Ms Yoxall is of the opinion that the applicant's "primary failing is his inability to overcome addiction". 

As to the sentence which was imposed, the learned sentencing judge noted that the applicant conducted an efficient and business-like operation, and that the profits from his sales were not used merely to feed his addiction. 

Her Honour took into account in the applicant's favour, his plea of guilty, his disclosure of the extent of his trafficking and his sad personal circumstances, including the disturbing effect of his father's violence on his emotional development.

Before the learned sentencing judge, the Crown Prosecutor submitted that on the authorities a notional head sentence of 16 years or more was appropriate, and that taking into account the plea of guilty and working back from a sentence of 16 years, a sentence of 12 to 14 imprisonment was warranted.  Counsel for the applicant submitted that the appropriate sentence could be as low as nine years.  In the alternative, counsel for the applicant accepted that a sentence of the order of 10 to 12 years was appropriate once the circumstances of mitigation had been considered.

The learned sentencing judge adopted a notional head sentence of 16 years which she then moderated by 25 per cent to recognise the applicant's plea of guilty and the other circumstances of mitigation to which I've referred, to arrive at a sentence of 12 years.

On this application the applicant accepts that it was open to the sentencing judge to reflect the entire criminality of the applicant's conduct in the head sentence imposed in respect of the trafficking count. 

The applicant asserts that her Honour erred in imposing a sentence in respect of the supply charge because it formed part of the trafficking count (see R v Robinson and Stokes; ex parte A-G [2000] 2 Qd R 413) but the applicant accepts however that even if this assertion be accepted it is of no present consequence.

It must be said immediately that the notional head sentence of 16 years fixed upon by the learned sentencing Judge was well within the range appropriate to the serious offending in which the applicant had been engaged.  The applicant was a mature adult.  There was an element of commercial motivation as well as the need to feed his own dependence in his offending.

The offence of trafficking in dangerous drugs inevitably attracts condign punishment informed by the need for strong, personal and general deterrence as well as retribution for the harm caused to individuals and the community as a whole by the trade in which the applicant was engaged.  (See R v Truong and Nguyen [2001] QCA 98, R v Bradforth [2003] QCA 183 especially at [29], and R v Raciti [2004] QCA 359 at pages 4 to 5).

In R v George [2001] QCA 135 a sentence of 14 years imprisonment for trafficking in heroin and cocaine imposed after taking into account an early plea of guilty was upheld.  There the offender's trafficking had been on a considerably smaller scale than that engaged in by the applicant.

In R v Bradforth, upon which counsel for the applicant placed substantial reliance before the sentencing judge, this Court imposed a sentence of 10 years for trafficking.  There the offender had pleaded guilty.  He was in a much smaller way of business than the applicant and he, too, was motivated in part by commercial considerations and in part by the need to feed his addiction but, significantly in that case, the trafficking was for a period of little more than one year.  The offender in that case as well had no relevant previous convictions.

In R v Tran [2006] QCA 174, Philippides J, with whom McMurdo P and White J agreed, reviewed the relevant decisions of this Court relating to trafficking in dangerous drugs.  Her Honour's review confirmed that in cases of serious trafficking a sentence of 16 years, even where the offender is entitled to the benefit of a plea of guilty, is within the proper range.

The present case is, as the learned sentencing Judge observed, one of offending on a "grand scale".  The focus of the applicant's argument in this Court was upon the level of discount allowed by the sentencing judge.  The argument advanced by Mr Moynihan of Counsel on behalf of the applicant was that the applicant was entitled to a discount of greater than 25 per cent because his cooperation with the administration of justice extended beyond the plea of guilty to assisting the police with their investigations and to his confession that his trafficking had gone on for 12 months more than the police might otherwise have been able to establish.

It should be noted that the learned sentencing judge did advert to the circumstance that it was the applicant who disclosed to the police the full extent of the offending of which he was convicted.  Further, as the respondent observes, the applicant has not given evidence against his supplier and has not undertaken to do so.  There is no objective evidence that the applicant is at real risk of harm while in prison as a result of identifying Ancuta and his wife to the police.  As a result he is not entitled to the particular leniency afforded by way of an informer's discount.

In this regard Mr Moynihan referred to York v R (2005) 221 ALR 541 at 542 where Gleeson CJ confirmed the inclination of the courts to extend leniency to an offender who has assisted the authorities in the investigation of crime. But that was a case where the offender's cooperation with the authorities against other criminals was such as to expose her to the danger of reprisals.  In this case the applicant's assistance to the administration of justice did go beyond the utility of his plea of guilty but it does not appear that he has exposed himself to the special risks of retaliation which are reflected in the generous discounts allowed to informers and to which Gleeson CJ referred to in York v R.

Mr Moynihan also relied upon AB v The Queen (1999) 198 CLR 111 at 155 where Hayne J said:

"An offender who confesses to crime is generally to be treated more leniently than the offender who does not. And an offender who brings to the notice of the authorities criminal conduct that was not previously known, and confesses to that conduct, is generally to be treated more leniently than the offender who pleads guilty to offences that were known ... And the offender who confesses to what was an unknown crime may properly be said to merit special leniency."

It is argued that, because the appellant confessed to trafficking for the period of 18 months, which involved a period of 12 months that was otherwise unknown to the authorities, he is entitled to this form of special leniency.

On the other hand it is argued by the respondent that the notional head sentence of 16 years was not significantly influenced by the greater length of time during which the applicant admitted that he had been in business.  The applicant's confession established an important aspect of the Crown case; but, it is submitted, on behalf of the respondent, even if the evidence had established that the business of trafficking had gone on for only six months, a notional head sentence of 16 years would nevertheless have been justified.

The decision of this Court in R v Do [2000] QCA 135 provides some support for the submission of Mr Copley of Counsel for the respondent.  In R v Do, a 22 year old trafficked in heroin for four months and did so to support his own dependence.  He had only a minor criminal history and no prior convictions for offences involving drugs.  He was entitled to the benefit of an early plea of guilty.  That offender had readily admitted his involvement in the trafficking.  He was sentenced to 12 years' imprisonment after a notional head sentence of 14 years was adjusted for his plea of guilty.

In the light of the decision in R v Do, the decision in The R v George and the range of sentence suggested by the review of the authorities in R v Tran, it appears to me that having regard to the scale of the offending and the criminal history of the present applicant, a sentence of 12 years imprisonment for the offence of trafficking was not excessive.

In conclusion, I am not persuaded that the sentence which was imposed was manifestly excessive.  In my opinion the application should be refused.

WILLIAMS JA:  I agree.

HOLMES JA:  I agree.

WILLIAMS JA:  The order of the Court is that the application is dismissed.