SUPREME COURT OF QUEENSLAND

[1]  JERRARD JA:  On 22 March 2006 Mr Dracos pleaded guilty to a charge of carrying on the business of unlawfully trafficking in the dangerous drug heroin between 1 June 2004 and 10 June 2005, and to a second count of unlawfully supplying that drug to another person on 1 February 2005.  He was sentenced to seven years imprisonment, and recommended for consideration for post-prison community-based release after he had served two and a half years of that sentence. The learned sentencing judge further ordered pursuant to s 147 of the Penalties and Sentences Act 1992 (Qld) that Mr Dracos serve the whole of a six month period of imprisonment, previously wholly suspended when imposed by the Supreme Court on 9 August 2004, and that the whole of that previously suspended six months be served cumulatively with the seven year sentence imposed on 22 March 2006.  Mr Dracos has applied for leave to appeal against the severity of his sentence; his application, strictly speaking, seeks leave only to appeal the seven year sentence for trafficking, but I consider it should be understood as also complaining about that sentence being cumulative with the activated six month sentence.

[2] The manner in which the learned judge expressed the sentences, namely making the six months cumulative with the seven years, did take note of the command in s 148(1) of the Penalties and Sentences Act, namely that unless otherwise ordered an activated term must be served immediately.  But it did not follow the recommendation in R v Chard; ex parte A-G (Qld) [2004] QCA 372.[1]  That was that where an activated suspended sentence is ordered to be served cumulatively with another term or terms of imprisonment, the order should require the offender to serve the whole or the activated part of the suspended sentence first, to be then followed by service of the sentence imposed for the offence or offences which constitute the breach of a suspended sentence.  One of the reasons for so constructing sentences is the inability of sentencing courts to make recommendations regarding post-prison community-based release for activated portions of previously suspended sentences (see R v Waters [1998] 2 Qd R 442 and R v Skinner; ex parte A-G [2001] 1 Qd R 322[2]).  If the seven year term is cumulative on the six months, Mr Dracos will be eligible for parole after he has served three years.  If the sentence takes effect as the sentencing remarks suggested, namely that the six months is cumulative on the seven years, then Mr Dracos will start serving that six month term only when otherwise due for release under the seven year term, which may be much longer than two and a half years.  It seems clear that the learned judge intended a fixed period before parole eligibility; the uncertainty from the order made means an error has crept into the sentencing process, and this Court can re-exercise the sentencing discretion in regard to that activated six month period.

The offences

[3] The circumstances of Mr Dracos’ offending were as follows.  Count 2, the count of supplying, came to light when Mr Dracos was stopped in his car on 1 February 2005 at about 11.45 am.  The police, who had information that he was selling heroin, inquired whether he had drugs in the vehicle.  Eventually he produced nine small bags of white powder, two mobile phones, and $435.  While later being transported to the police station he admitted that the bags contained heroin, and he also received a number of text messages on his mobile phone during the course of the trip.  Two of those implied that he was supplying others with heroin.  Mr Dracos admitted to the police that he was intending to drop off the nine bags of powder to other people, for $100 each.

[4] Those nine bags were shown on subsequent analysis to contain a total of 1.113 grams of powder, with a calculated weight of 0.203 grams of pure heroin.  As the learned sentencing judge stated on 22 March 2006, in sentencing remarks that showed sympathy to Mr Dracos, Mr Dracos was trafficking at the street level in relatively small quantities of the drug. 

[5] The next police action against Mr Dracos was on 9 June 2005, when police attended a residence at Cannon Hill, and saw him in the street in company with a Mr Paul Irvine.  Both men were detained for the purposes of a search.  Mr Dracos had $730 in cash and a mobile phone on him, and Mr Irvine had a plastic bag in his underwear, which he said had heroin in it and which he said Mr Dracos had given to him.  Both men were searched at a nearby service station, and Mr Dracos was found in possession of eight bags of white powder, subsequently analysed and shown to contain a total of 1.184 grams, of which 0.275 grams was pure heroin.  As Mr Dracos was being driven on that occasion to a police station, his mobile phone rang constantly; he received 44 missed calls during that trip and while later housed in a holding cell.

[6] Mr Irvine told the police that day that he had met Mr Dracos one year previously, in about June 2004, through a friend, and that he and that friend would meet Mr Dracos some three to four times a month to buy heroin, and did so for two months.  Then Mr Irvine stopped using heroin, but began again in September 2004, and once again would meet Mr Dracos and buy $100 worth of heroin from him three or four times a month, which he and the friend had done for the next two or three months.  In February 2005 he began buying $300 worth, three or four times a month. 

[7] Mr Dracos told the police that he had been using heroin himself a lot, and that other people came to see him to get some, and he would see a dealer and purchase heroin for them.  He said that he had been doing that for a “couple of months”, and that he had about five people to whom he would supply heroin approximately once each two days.  He said he used the money they gave him to buy heroin for himself.  He denied that he had supplied Mr Irvine with the heroin found on Mr Irvine, and that he had been supplying Mr Irvine for the last 12 months.  He also denied making any money from supplying, saying that he was using between $400 and $500 worth of heroin himself every day, and that he paid for that by “helping people out”. 

[8] The fact that Mr Dracos pleaded guilty to trafficking for the 12 month period from 1 June 2004 to 10 June 2005 implies that that plea acknowledged he had been supplying others with heroin during those 12 months, and the Crown was entitled to rely, as it expressly did in its submissions to the learned sentencing judge, on what Mr Irvine had said to the police.  The learned sentencing judge imposed sentence on the basis that the judge accepted that Mr Dracos was not engaging in trafficking to make money, and that his principal reason was to “feed” Mr Dracos’ own heroin addiction; the learned judge also stated that the judge accepted the substance of what Mr Dracos told the police.  In the circumstances, that should be understood as being that Mr Dracos had about five regular customers, whom he supplied each other day.  That was a finding favourable to Mr Dracos, and while the sentencing remarks did not expressly reject or accept the statements by Mr Irvine upon which the prosecution relied, the plea did, so Mr Irvine was undoubtedly regarded by the sentencing judge as one of those regular customers.

Personal matters

[9] The information put before the learned judge revealed that Mr Dracos had experienced a good deal of misfortune in his personal life.  He lost his father when he was a baby, and his mother died of cancer when he was 11 years old.  He saw his only brother struck by a car when he was 12 years old.  He lived in his teenage years with his aunt, uncle, and cousins, and continues to have a very supportive relationship with them.  He was apprenticed as a jockey at 16, but broke his neck and leg in two separate training accidents in 2002, and experienced considerable pain when recovering from those.  He began to use heroin for pain relief, and was very short of money, which all led to his ultimately paying for the drugs he used himself by selling some to others.  He had attempted rehabilitation on a methadone program, unsuccessfully, and had continued dealing.

[10]  That account was consistent with his criminal history, which records that he was first convicted in January 2004, for breach of a bail undertaking; and then in February 2004 for failing properly to dispose of a needle and syringe in April 2003.  Then followed a conviction in March 2004 for possession of property suspected of being stolen or unlawfully obtained, that offence committed earlier in March 2004; and then convictions in late April 2004 for possession of other tainted property in March 2004; possessing dangerous drugs in December 2003; another offence of failing to take reasonable care in the use of the syringe or needle – committed in January 2004 – and two offences of possessing property suspected of being used or obtained from the commission of drug offences, committed in December 2003 and January 2004.  For all of those offences he was placed on community service and eight months probation. 

[11]  He was back in the Magistrates Court in August in 2004 when he was dealt with for offences committed in October 2003, and thus before being placed on probation.  He was likewise dealt with on 19 August 2004 in the Supreme Court, for an offence of supplying heroin, committed in September 2003, and therefore also before being placed on probation.  For that offence of supplying he was sentenced to six months imprisonment, wholly suspended for 18 months.  The sentencing remarks on that occasion included reference to his having some convictions for dishonesty in New South Wales in 1998 before he became apprenticed as a jockey, and to the fact that he seemed to have managed well as an apprentice until the bad fall in 2002.  Those sentencing remarks record that that offence of supplying heroin was committed when he was found in possession of two foils of it, when he was seen by police to meet two women.  The sentencing judge remarked in 2004 that the women had money on them, and that it seemed likely they would have paid Mr Dracos for the heroin, but that there was nothing to indicate whether there was any profit in it for him at all.  That judge told him it was up to him to see if he could continue with the program he was then undergoing at the Alcohol and Drug Service. 

[12]  The convictions resulting in the sentences now under appeal show that he was unable to remain away from heroin, and that the six month suspended sentence imposed on 19 August 2004 was actually imposed two and a half months into the period of trafficking he admitted by his plea.  It follows that when he began that period of trafficking he was on probation, namely the eight months imposed on 28 April 2004 by the Brisbane Magistrates Court; then for almost all of that period of trafficking he was undergoing the operational period of the six month suspended sentence; and further, for the last four months he was on bail for the offence of supplying on 1 February 2005.  As the sentencing judge remarked in March 2006, those were all matters aggravating the otherwise appropriate sentence.

[13]  The learned sentencing judge was referred to the sentences imposed in R v Johansson & McLachlan (2001) 123 A Crim R 271[3], R v Le [1996] 2 Qd R 516, R v Pascoe [1997] QCA 284[4] and R v Watt [1997] QCA 430[5], and referred to all of those, of which the last three are analysed in the judgment of Atkinson J in R v Johansson.  I am satisfied from the sentences imposed in those cases that the learned sentencing judge was correct in the view that a head sentence of seven years imprisonment was comfortably within the appropriate range in this one. 

[14]  Atkinson J’s analysis in R v Johansson was as follows.  In R v Le that applicant was convicted of trafficking in heroin over a three month period, with sales bringing less than $3,000 gross per month and only a small amount of profit.  He had no previous convictions related to dealing in heroin, pleaded guilty, and it was clear that the main purpose of dealing was to fund his own habit.  He received an eight year sentence for 16 drug offences with no parole recommendation, and Thomas J commented that trafficking activity for sheer profit is viewed more seriously than trafficking by an addict in the grip of an addiction.  That sentence was regarded as at the high end of an appropriate range but not manifestly excessive.  In R v Pascoe that applicant was convicted of five counts of supplying heroin, one count of unlawful possession of a motorbike, one count of trafficking in heroin over a one and a half month period, one count of supplying cannabis, and one count of supplying heroin.  He was sentenced on all counts to eight years imprisonment.  This Court remarked that the sentence was not a light one, but some offences were committed while on bail for the trafficking and supply offences.  That offender was a 31 year old heroin user, who engaged in those transactions to feed his habit, but with a criminal history going back to 1981 and which included some drug and dishonesty offences.  The eight year sentence was held to be within range for the offence of trafficking, and this Court said that apart from the plea of guilty, there was no basis for considering a recommendation for parole and the plea was catered for in his sentence.

[15]  In R v Watt that applicant carried on trafficking in heroin over a six month period comprising 12 sales to an undercover police officer, and also committed associated offences of supply and offences of possession of heroin and cannabis.  His sentence was seven years imprisonment with a parole recommendation after two years and four months.  He was 40 at the time of the offences and had many past convictions for drug offences dating back to when he was 24.  In R v Johansson itself, that applicant pleaded guilty to one count of trafficking over a two month period and was sentenced to seven years with a recommendation for release on parole after serving two and a half years.  He was intercepted by police at the end of that period of trafficking and shown to be in possession of two clip seal bags containing within them smaller bags, 72 in all, with a total quantity of 3.709 grams of powder of which 2.825 grams were pure heroin.  There was a notebook with entries for amounts of money and evidence of the use of heroin.  He said he had been selling heroin for two months to various customers on the Gold Coast, and his last purchase had been 108 packets two days before the police search.  He bought them for $30 a packet and then intended to sell them for $40.  He had sold 15, 21 had been consumed by his heroin addicted girlfriend and himself, and the police had seized the rest.  He was 45 with a serious criminal record and his application for leave to appeal was refused.

[16]  Mr Dracos has pleaded guilty to trafficking for a considerably longer period than the offenders in R v Johansson, R v Le, R v Pascoe, and R v Watt.  Like them, he was a street dealer, and while he had no lengthy unrelated criminal history, the circumstances of aggravation identified by the sentencing judge justify the seven year head sentence.

Re-exercising the discretion

[17]  I am also satisfied that the learned judge was correct in regarding the matters in mitigation, some already described and others including Mr Dracos’ early plea and general co-operation, as justifying the recommendation that Mr Dracos be considered for early release after serving two and a half years.  It seems tolerably clear that the judge had sympathy with Mr Dracos as a street level trafficker suffering the ravages of addiction himself, whose entire criminal history was explained by that addiction.  Since Mr Dracos was sentenced on the basis that the judge accepted what Mr Dracos told the police, which included that he had a small number of regular customers, his overall level of criminality is adequately reflected in a head sentence of no more than seven years imprisonment.  For that reason I would grant leave to appeal, allow the appeal, and vary the sentence imposed by ordering that the activated period of six months imprisonment be served concurrently with the sentence of seven years imprisonment on the trafficking charge.  I note that the learned judge imposed no further penalty in respect of the count of supply in February 2005, and the order still stands that 286 days in pre-sentence custody from 10 June 2005 to 22 March 2006 is time served under the seven year sentence.

[18]  HOLMES JA:  I have read the reasons for judgment of Jerrard JA and gratefully adopt his setting out of the applicant’s background and the trafficking offence.

[19]  Section 148 of the Penalties and Sentences Act 1992 (Qld) provides that where a prisoner is ordered to serve a term of suspended imprisonment, that imprisonment is to be served immediately unless the court otherwise orders.  In the present case, as it seems to me, the court did otherwise order: the order made was that the applicant serve the period of suspended imprisonment cumulatively on the seven year sentence.  That did not, of itself, necessarily indicate error; but it does seem clear that the learned sentencing judge intended that the applicant have the benefit of the recommendation for parole, and the effectiveness of that recommendation would be dubious in the light of the further sentence to be served.  The apparent conflict of the learned judge’s sentencing intention with the result leads me to agree with Jerrard JA that there has been an error in the sentencing process which requires the intervention of this Court.

[20] In all the circumstances, and particularly given the fact that the offence which gave rise to the suspended sentence was itself part of the continuum of offending which comprised the trafficking, I agree with Jerrard JA that the applicant’s overall level of criminality is appropriately reflected in a sentence of seven years imprisonment. That can, as his Honour has proposed, be achieved by ordering the period of suspended imprisonment to be served concurrently with the sentence of seven years on the trafficking charge.

[21]  MULLINS J:  I am also grateful to Jerrard JA for setting out the circumstances of the applicant’s offending, his personal details and the analysis of the comparable sentences on which the learned sentencing judge relied.

[22]  The primary task of the sentencing judge was to sentence the applicant for the offences of trafficking in heroin and supplying heroin to which he pleaded guilty.  As these offences were committed during the operational period of the suspended term of imprisonment of six months that had been imposed on the applicant on      19 August 2004, the additional task of the sentencing judge was, after the conviction of the applicant for the trafficking and supply offences, to consider which of the sanctions provided for in s 147 of the Penalties and Sentences Act 1992 (Qld) (“the Act”) should be imposed. 

[23]  Section 148 of the Act was applicable as a result of the decision of the sentencing judge to activate the whole of the suspended term of imprisonment.  It states:

“If, under section 147(1), the court orders the offender to serve imprisonment, then, unless the court otherwise orders, the imprisonment must be served—

(a)   immediately; and

(b) subject to the Bail Act 1980, section 33, concurrently with any other imprisonment previously imposed on the offender by that or another court.”

[24]  The effect of s 148 of the Act is that it prescribes two conditions that affect how the activated suspended term of imprisonment is to be served by the offender, unless the court otherwise orders.  Section 148 therefore provides for default orders that apply to the activated suspended term of imprisonment, in the absence of orders made to displace those default orders.

[25]  Although the issue of the activation of any part of the suspended term of imprisonment cannot be dealt with until after the offender has been convicted of the offences committed during the operational period, conformity with the default orders (and particularly that set out in paragraph (a) of s 148) is best achieved by the order which activates the suspended term of imprisonment being dealt with by the sentencing judge before the imposition of the sentences for the offences which result in the activation of that suspended terms of imprisonment: R v Chard; ex parte A-G (Qld) [2004] QCA 372 at [7]. 

[26]  The sentencing judge sentenced the applicant for the offence of trafficking to imprisonment for seven years with a recommendation for eligibility for parole after the applicant served two and one-half years of that sentence.  The sentencing judge noted that he had to consider together the suspended sentence and the sentence for trafficking, so that the ultimate outcome was not excessive punishment.  It was not disputed by counsel for the applicant before the sentencing judge that the whole of the suspended terms of imprisonment should be activated.  The issue was whether the activated suspended sentence of six months should be concurrent or cumulative with the term imposed for trafficking.  The sentencing judge concluded that it was appropriate for the activated suspended sentence to be served cumulatively.  After pronouncing the sentence for the trafficking offence, the sentencing judge ordered that the applicant serve the whole of the suspended term of imprisonment imposed by the court on 19 August 2004.  He stated that it was cumulative and clarified the order in the following terms:

“The order I have made under section 147 of the Penalties and Sentences Act that the prisoner serve the whole of the suspended imprisonment will be on terms that that be served cumulatively, as indicated in my reasons, with the sentences imposed for the matters which have brought him here today.”

[27]  By ordering that the activated suspended term of imprisonment be cumulative with the sentence for trafficking, the sentencing judge made an order that displaced the default order set out in s 148(b) of the Act.  The sentencing judge did not make any order that displaced the default order set out in s 148(a) of the Act.  The combined effect of s 148 of the Act and the orders made on the sentence was that the activated suspended term of imprisonment has to be served immediately and, therefore, before the sentence for trafficking with which the activated suspended term of imprisonment is cumulative. 

[28]  I respectfully consider that no error was made by the sentencing judge in pronouncing the orders relating to the activated suspended term of imprisonment and the sentence for trafficking. 

[29]  I rely on the analysis of the comparable sentences undertaken by Jerrard JA which shows the sentence imposed for trafficking was not outside the range of possible sentences for that offence.  The question on this application is whether the order that suspended term of imprisonment of six months be served cumulatively with the sentence for trafficking results in an effective sentence that was manifestly excessive. 

[30]  The suspended term of imprisonment had been imposed for the offence of supplying heroin that was committed on 19 September 2003.  The applicant had been dealt with in the Magistrates Court on 28 April 2004 for subsequent drug offending for which he was given 80 hours community service and probation of eight months.  When the applicant appeared in the Supreme Court in August 2004 to be dealt with for the offence committed on 19 September 2003, he had managed to do only 26.5 hours of the 80 hours community service and the recommendation in the report from the Department of Corrective Services was against further community based orders.  The sentencing options were therefore limited.  When the sentencing judge imposed the wholly suspended term of imprisonment of six months, the applicant was warned that if he re-offended in the next 18 months which was the operational period for the suspended sentence, there was not much likelihood that he would avoid serving the six months in prison. 

[31]  The period of the trafficking to which the applicant pleaded guilty commenced in June 2004, before he was sentenced to the suspended term of imprisonment, and the imposition of the suspended term of imprisonment was not successful as a disincentive, as the trafficking period included the period after that sentence until the applicant was arrested and charged with trafficking on 9 June 2005.

[32]  I accept that the applicant’s addiction to heroin which caused him to traffic in heroin between June 2004 and June 2005 was also a contributing factor to the offence of supplying heroin that he committed in September 2003.  That latter offence was committed, however, prior to the period during which the trafficking occurred.

[33]  There were therefore reasons that could justify ordering that the suspended term of imprisonment be served cumulatively with the sentence for trafficking. 

[34]  As the sentencing judge expressly recognised, if the suspended sentence was to be served cumulatively, the relevant consideration was the totality of the effective sentence.  I am not persuaded that the order that the suspended sentence be served cumulatively rather than concurrently has resulted in an effective sentence that was manifestly excessive in all the circumstances.  I would dismiss the application.