R v Oliver[2007] QCA 361

SUPREME COURT OF QUEENSLAND

[1]  JERRARD JA: On 28 February 2007 Mr Oliver pleaded guilty to an offence of having unlawfully possessed the dangerous drug cocaine, in a quantity exceeding 200 grams, on or about 24 September 2002 at Brisbane.  On 15 June 2007 Mr Oliver was sentenced to 11 and a half year’s imprisonment, with a parole eligibility date fixed as at 15 September 2011, namely four years and three months from the date of sentence.  On 5 July 2007 Mr Oliver filed an application for leave to appeal against that sentence, contending that it was manifestly excessive.

[2] Mr Oliver had prior convictions in May 1989 and May 1990, in Victoria, for offences of possession of a drug of dependence, for which he was respectively fined $100 on the first occasion, and $200 on the second.  The circumstances of his possession of cocaine in 2002, described by the prosecutor to the sentencing judge, were that in 2002 relevant authorities were investigating some substantial offences involving drugs, in which Mr Oliver was not a particular target of the investigations, but in which investigation interception of various telephone calls established that he had arranged and agreed to receive two kilograms of a quantity of cocaine that had been found on the Queensland Coast near Cooktown.  In August and September 2002 a man named Mr Porter had been active in endeavouring to obtain exclusive possession of seven kilos of that cocaine, and had succeeded in that goal.  Analysis of the seven kilos when it was later seized showed it to be 66% pure, and if further diluted to an ordinary level of street purity, would have a value on the “street” in excess of $1million.  Mr Oliver was to get two kilos of that cocaine, but was not arrested until 2 March 2005, because of the length of time taken to analyse all of the intercepted telephone calls and other material.  There was accordingly a substantial delay between the date of his offence in September 2002, and the date of his plea in February 2007, and his sentence in June 2007.  He never actually physically possessed the cocaine, but it was accepted he was constructively in possession of it, for a commercial purpose.  He faced a maximum sentence of 25 years, the same maximum sentence as for trafficking in cocaine, as Mr M Copley submitted for the respondent.

[3] On this application, his counsel referred to the sentence of eight and a half years imprisonment, with parole eligibility recommended after three and a half years imprisonment, imposed on an offender in R v Cooney [2004] QCA 244, who had pleaded guilty to one count of possession of cocaine exceeding 200 grams.  That offender had been found in actual possession of 900 grams of cocaine of a purity of 71.2%, valued at about $100,000 if sold in bulk and up to $900,000 if diluted to about 35% strength.  That offender had a conviction in 1993 for supplying cannabis, and had been sentenced to 12 months imprisonment.  He was addicted to cocaine and had previously been sent to prison.  This Court held the sentence of eight and a half years, with parole recommended after three and a half, was not manifestly excessive.  That offender actually had possession of the drug, although slightly less than half the quantity Mr Oliver intended to acquire possession of, and had a prior prison term.  I agree with the submission by Mr Oliver’s counsel, Mr M Johnson of counsel, that Mr Oliver’s sentence appears severe compared to that upheld in the matter of Cooney. 

[4] In a matter of R v Trinh, that offender had pleaded guilty on 1 April 2003 to an offence of possession of heroin, and was sentenced to eight years imprisonment with a recommendation that Mr Trinh be considered for parole after serving three years of that sentence.  Mr Trinh was intercepted driving a car from Queensland to Sydney, which contained 347 grams of white powder concealed in balloons in the door panels, which white powder consisted of 131 grams of pure heroin.  It had a street value, if “cut” as much as possible, of about $700,000.  Speaking of the sentence imposed on Mr Trinh, in an appeal entitled R v Van Huynh [2003] QCA 371, I remarked that the eight year head sentence appeared very much within the appropriate range when regard was had to a sentence upheld by this Court in a matter of R v Truong [1997] QCA 49.  In that last case, that applicant had pleaded guilty to an ex-officio indictment charging her with a count of possession of heroin, totalling 76.896 grams of pure heroin, and this Court had upheld a sentence of nine years imprisonment with a recommendation for consideration for parole after she had served three and a half.  Williams JA and Philippides J agreed, without any qualification, with my statements in R v Van Huynh, that Mr Trinh received a sentence of eight years imprisonment about which no successful complaint could be made, for acting as a courier of a significant quantity of heroin.  Mr Oliver intended to be more than a courier, and it is therefore more relevant to compare Mr Oliver’s sentence with that upheld against Mr Van Huynh, on whose behalf Mr Trinh was carrying the heroin from New South Wales to Queensland. 

[5] A jury found Mr Van Huynh guilty of possession of that heroin, and he was sentenced to 12 years imprisonment.  He had bought the car Mr Trinh was driving, and the heroin that Mr Trinh was carrying, and had arranged for its transport by Mr Trinh.  His application for leave to appeal was dismissed, and the other judges did not disagree that Mr Van Huynh’s sentence appropriately reflected his far greater degree of involvement in the acquisition and distribution of heroin (than Mr Trinh’s involvement).  Mr Johnson made the point that Mr Van Huynh was convicted after a trial, and his offence of possession of 131 grams of pure heroin involved more active participation in his trying to get possession of it, than Mr Oliver had shown.

[6] The learned judge was also referred to the sentence imposed in a matter of R v Varitimos, unreported, Lyons J, SC No 336 of 2005, 27 November 2006, in which that offender pleaded to one count of possession of cocaine in excess of 200 grams, and one count of possession of three ounces of cocaine.  The latter offence was committed on 20 August 2002, and the former when Mr Varitimos agreed to receive possession of some 3.3 kilograms of the seven kilos of cocaine seized from Mr Porter’s possession.  Like Mr Oliver, Mr Varitimos did not obtain actual possession of the 3.3 kilograms, but was deemed to have possession of it pursuant to his agreement to do so.  The sentencing judge took into account his guilty plea, that it was not a charge of trafficking, that he had no prior criminal history and strong family support, and ordered that he be imprisoned for nine years, with a parole eligibility date of 27 November 2009, i.e. in three years.

[7] The learned sentencing judge in Mr Oliver’s case was referred to the sentences imposed in Varitimos, Cooney, and Van Huynh, and of necessity to the sentence imposed in Trinh, and considered that those decisions supported a range of 11 to 12 years for the head offence.  The head sentences imposed in Cooney and in Varitimos were eight and a half years and nine years, after pleas, with a parole eligibility date of three and a half, and three years, after the sentence.  In a matter of R v Klasan [2007] QCA 268, that offender pleaded guilty to trafficking in both cocaine and ecstasy, and was sentenced to 11 years imprisonment not disturbed on appeal.  Mr Klasan was a dealer in ecstasy at a wholesale level, as well as an actual and an intending trafficker in cocaine.  His offending was more serious than Mr Oliver’s was.

[8] In R v Donnelly and Corbic [2007] QCA 77, this Court expressed the view that a lengthy period in the community prior to sentence, without any re-offending, was a matter to which weight should be given in mitigation of penalty.  In that case, it was one of a number of matters that resulted in lowering of a head sentence.  In R v Le; ex parte Attorney–General [2000] QCA 392, a majority in this Court considered that a voluntary desistance from prior offending justified a significantly lower sentence than would otherwise be appropriate.

[9] Neither Mr Oliver, Mr Cooney, or Mr Varitimos were convicted of trafficking, and I agree with Mr Johnson that this sentence seems more appropriate for an offence of trafficking in cocaine – as was committed by Mr Klasan – who received 11 years imprisonment, than for the offence of possession of it.  That possession was for a plainly commercial purpose but that does not entitle a sentence equivalent to one for trafficking.  As was remarked during the hearing, trafficking nearly always involves much more active involvement in drug dealing than was involved in a count of aggravated possession.  I regard the sentence imposed as above the level established by the other sentences described, and would set it aside, and substitute instead a sentence of nine years imprisonment, with a parole eligibility date of 15 June 2010, that is, after three years.  

[10]  KEANE JA:I agree with the reasons of Jerrard JA and the orders proposed by his Honour. 

[11]  DOUGLAS J:  I also agree with the reasons of Jerrard JA and the orders proposed by his Honour.