R v Bosnjak[2007] QCA 325

SUPREME COURT OF QUEENSLAND

HOLMES JA:  The applicant for leave to appeal against sentence was convicted after a trial of one count of trafficking in a dangerous drug, one count of supplying a dangerous drug, three counts of possessing a dangerous drug and one count of possessing property obtained from supplying a dangerous drug.  He was sentenced to nine years imprisonment on the trafficking count; convicted but not punished on the supply count; sentenced to twelve months imprisonment on two of the possession counts and two years on the third; and was sentenced to five years imprisonment in respect of possessing property obtained from supplying a dangerous drug.  All sentences were ordered to be served concurrently.

The trafficking charge was unusual in that the offence (as well as the others) was said to have been committed on a single day, 7th of June 2002.  Surveillance was being conducted on one Giuseppe Raciti.  Raciti provided cash to another man, Warren, who went to the applicant's hotel room and obtained from him 6,200 tablets containing 350.187 grams of methylenedioxymethamphetamine (ecstasy) and 2.867 grams of amphetamine.  (The amphetamine seems to have been a very minor and incidental component of the tablets, and Mr Fuller for the Crown here very fairly conceded that this was really to be regarded as the trafficking and supply of a second schedule drug.)  Those drugs were passed on to Raciti.  The applicant had travelled from Sydney to Mooloolaba for the purpose of the transaction, which also constituted the supply offence.

The police went to the hotel room and found the applicant with $113,000 in cash (the subject of the possession of property obtained from supply count); ecstasy and amphetamine (which were the subject of the first possession of a dangerous drug count); methylamphetamine (the second possession count) and ketamine (the third possession count).  There were 100 ketamine tablets in what the Crown alleged was a commercial possession, because the ketamine tablets could be sold as ecstasy.  No aggravating circumstance was alleged in respect of the other counts of possession of a dangerous drug, so presumably the quantities of ecstasy, amphetamine and methylamphetamine were respectively less than 2 grams.  The Crown seems to have accepted that their possession was for personal use.

The applicant was 28 at the time of the offences and was 33 at the time he was sentenced.  He had been brought to Australia as a baby by his Croatian parents.  He had completed high school and had worked as a carpenter and gyprocker.  He had previous convictions of some seriousness.  In 1993 he was convicted of two counts of armed robbery in company, one of kidnapping and one of possessing a shortened firearm and was sentenced to fixed terms of imprisonment, the longest of which was four years, with four years supervision thereafter.  He was just 18 when those offences were committed and according to his counsel had committed them with other youths as a result of debts and peer pressure.  In 2000 he was convicted of a goods in custody charge, the equivalent of a receiving charge, and fined $350.

Two references were tendered on his behalf, one from a young woman who was a friend of the applicant and who was admitted as a solicitor.  She had known him since 2004.  In the intervening period he had been working long hours with his father in the building industry and was well respected by his fellow workers.  She said that he was honest, reliable and helpful and, she believed, of good character.  The other reference, dated 16th of August 2003, was from a co-worker who said he was punctual, honest and reliable.  According to his counsel, the applicant had been working and not committing offences since his arrest in June 2002.

The Crown submitted at first instance for a head sentence of 10 to 11 years, arguing that there were no mitigating factors.  Reliance was placed on the cases of Raciti [2004] QCA 359 and Rizk [2004] QCA 382.  The learned sentencing Judge referred to those decisions and to the cases of Donnelly and Corbic [2007] QCA 77 and Bradforth [2003] QCA 183.  She took into account that the trafficking entailed a single day's activities and that there was no evidence of the applicant having made large profits in any other transaction.  It was five years since the offences occurred, during which time the applicant had worked hard and had not been involved in further offending. Although the applicant had a serious criminal history related to offences committed when as a young person he got into trouble with the wrong crowd, she said, he had “a spotless record in the last four and a half years and [had] clearly rehabilitated [him]self.”  The cases indicated, her Honour said, that 10 to 12 years was the appropriate starting point. But in the light of those mitigating factors, she imposed the sentence of nine years imprisonment on the trafficking.

Counsel for the applicant submitted that the sentence was excessive, having regard to the fact that the trafficking, as charged, was limited to one day; that what was trafficked was, in essence, the Schedule 2 drug ecstasy; that the applicant had not re-offended since his apprehension and was rehabilitated; and that his previous convictions were of a different nature, committed when he was much younger.

Of the cases referred to by the learned sentencing Judge, Raciti and Rizk were of particular interest as having involved the recipient of the drug supplied here and one of his henchmen.  Raciti pleaded guilty to trafficking in ecstasy, methylamphetamine and cocaine over a four month period, as well as some possession charges.  He had been detected in the purchase of ecstasy tablets from the applicant here.  While on bail after being charged with that offence he was engaged in a further transaction involving 5,000 tablets and $50,000.  There seems, from the judgments in both Raciti and Rizk, to have been telephone surveillance evidence of sustained buying and selling of ecstasy over the intervening period.  Raciti also pleaded guilty to a count of possessing $9,750 obtained by trafficking.  He was 39 to 40 years old at the time of offending.  He had two previous convictions, one in 1983, the other in 2000 when he was placed on probation.  He was still subject to that order when the trafficking was committed.

The Court of Appeal was required to re-sentence Raciti because the Judge at first instance had omitted to sentence him on the possession charges.  The Court observed that Raciti's apparent rehabilitation in the two years since he had been charged (he was a model participant at a drug treatment centre), while in his favour, lost a deal of its impact given the circumstances of his earlier having re-offended on bail and lack of co-operation with police; it did not require any significant reduction in penalty.  He was sentenced to 11 years imprisonment on the trafficking charge.  Unlike this applicant's sentence, of course, that sentence attracted automatic serious violent offence status so that Raciti had to serve 8.8 years before being eligible for parole. 

Rizk worked for Raciti and was convicted of one count of trafficking in ecstasy over a two and a half to three month period.  He had purchased ecstasy from numerous suppliers on Raciti's behalf, on one occasion buying 5,000 ecstasy tablets.  He was 25 years old without previous convictions.  In light of his good record, his plea of guilty, and his otherwise good work history and youth, the Court of Appeal set aside a sentence of 8 years imprisonment with a recommendation for parole after 3 years and substituted one of 6 years imprisonment with a recommendation for parole after 2 years.

Some of the cases cited for the applicant here are of limited assistance because they involve offenders dealing at street level, as opposed to wholesale level, or offenders who had pleaded guilty and had no relevant convictions; for example, R v P [2004] QCA 365, R v Macey [2002] QCA 271.  But there is, I think, some difficulty in fitting the applicant's case into the 10 to 11 year range contended for by the Crown at first instance, given its unusual feature: that it rested on a single transaction involving, in essence, the supply of ecstasy, a second schedule drug.  On the other hand, the applicant was not an intermediary like Rizk.  He claimed ownership of the $113,000 found with him and there was nothing to suggest he was acting other than a principal in the transaction.

Taking into account those circumstances of the offending, together with the applicant's age and criminal history, albeit distant, of serious offences, a sentence of nine years imprisonment was appropriate.  The applicant was not, of course, entitled to the consideration which a guilty plea attracts.  However, the further feature that he had been on bail for some four and a half years since the offending, with no evidence of any further transgression and some evidence that he had been leading a useful life, was a significant mitigating factor not adequately recognised in any amelioration of the head sentence.  Rehabilitation indicated by a lengthy period on bail without re-offending is a factor which may weigh significantly in an applicant's favour: see R v Donnelly and Corbic [2007] QCA 77 at paragraph [42], R v O'Brien [2006] QCA 482.

In my view, some further credit should be given to the applicant for rehabilitation.  The application for leave to appeal should be allowed and the sentence varied to the extent of adding a date for eligibility for parole after three and a half years: taking into account the 72 days pre-sentence custody, on 10th of July 2010.

KEANE JA:  I agree.

JONES J:  I agree.

KEANE JA:  The order of the Court is leave to appeal against sentence granted.  The appeal is allowed but only to the extent of adding that the date for eligibility for parole be fixed at 10 July 2010.