R v Bivolaru[2008] QCA 212

SUPREME COURT OF QUEENSLAND

MACKENZIE AJA:  On the 28th of April 2008, the applicant was sentenced to four years imprisonment with parole eligibility after nine months for two offences of supplying heroin.

The charges are very old, having been committed in the second half of 1999 and February 2000 respectively.  No fault is attributed to the applicant for the delay in having the matters finally disposed of.  He applies for leave to appeal against sentence.

The basic facts are that in the first period referred to, the applicant was introduced to a drug user and street dealer in heroin.  He asked her whether she was interested in selling heroin for him.  She initially declined but at a subsequent meeting, took some heroin from him on a credit basis.  She said that the quantity was about two grams.  Of course, because of the circumstances of the matter, the purity of the heroin is unknown.  She sold this heroin and accounted to the applicant for the proceeds.

Several weeks after the first sale, the applicant contacted her and arranged to meet her at a coffee shop on the Cairns Esplanade.  He was in the company of two other men and the proposition was put to her that she might sell more heroin.  She sold more heroin for one of the men, but in February 2000 when he was not accessible, she made contact with the applicant again.  He supplied her with four weights of heroin on that occasion.

In February 2001, police executed a search warrant on the applicant's home in Brisbane.  A number of items of interest, including paper with the drug user's telephone number written on it, were found. 

Further evidence of a connection between the applicant and her was found in the form of a cheque butt in her possession and a corresponding deposit of $200 in his bank account.  It was apparently common ground that that particular sum of money related to a gambling debt but was nevertheless evidence of a connection.

The applicant initially denied ever having been in Cairns but later agreed that he had been there but denied any knowledge of the drug user herself.  He gave an implausible explanation that he had removed a piece of paper with the phone number on it intending to bring it to the attention of police, as he suspected that the man from whose premises he had taken it was engaged in heroin dealing.

Financial analysis showed assets of more than $8,000 in excess of known income in the period under review.  Other evidence of the applicant being in Cairns was obtained during the investigation.

Originally he had been tried for trafficking in heroin but that conviction was set aside.  He pleaded guilty subsequently to the present charges.  By the time of his release, after the trafficking conviction was set aside, he had spent 250 days in custody.

The Crown Prosecutor below submitted that a head sentence of the order of four years imprisonment would be appropriate.  He accepted that the pleas of guilty had to be allowed for, as well as the time already served under the trafficking sentence.  He submitted that to take those factors into account, there might be either a suspension or immediate parole.

The learned sentencing Judge took issue with that suggestion, on the basis that there was a significant difference between cases where a heroin user supplied other users to support their habit and the applicant's position, which was of a person who was not a user supplying heroin to a user in the knowledge that the person would sell at least part of it to others.

The applicant's counsel submitted that the dealing was at the lower end of the scale and that the amounts of money involved were of a very small nature.  He urged that the learned sentencing Judge adopt the approach suggested by the Crown Prosecutor.

In sentencing the applicant, the learned sentencing Judge said that the case was one of a deliberate attempt to engage someone who was vulnerable because of addiction to work on his behalf to sell the drug.  He was not addicted to the drug himself and not a user of the drug. 

His motive was simply financial greed, in pursuit of which he was prepared to take advantage of the person who was vulnerable.  He accepted that the amount of drugs in respect of the two transactions were small and that the financial gain was uncertain.

However, on the basis of his very substantial experience of dealing with drug matters, he inferred that it was probably a sum in the vicinity of a few thousand dollars.  He distinguished R v Thoa Ngoc Tran [1994] QCA 573; R v Ross [1995] QCA 134; and R v Hai Thanh Duong [1997] QCA 395, on the basis that in each of those cases the accused person was a user, if not addicted to the drug, and was engaged in on-selling the drug to satisfy their own addiction.

He said that there was a very significant difference between those cases and the present case.  The case of Cocouz [2000] QCA 370, which was referred to in submissions before us, I might add, is a rather different sort of case and provides no particular assistance to the resolution of this matter.  There was a higher level of cooperation and the applicant there did not know that the supply was to an addict.

The applicant's counsel submitted that the learned sentencing Judge was in error in finding that the applicant probably obtained a few thousand dollars for these supplies.  The Crown had not suggested that and the material put before the sentencing Judge, it was submitted, did not indicate that he had obtained such a sum.

It was also submitted that the material put before the Court suggested a contrary conclusion.  The matter arose in this way. His Honour asked, "On the material before me now, do I have any information as to how much money was exchanged for the heroin supplied by your client?" 

Counsel replied, "Only this, your Honour, that - that on one - one of the occasions, I think, money - it was to be paid, it seems that it was, I think from memory, the envisage (the transcript records) of $200 was to be paid in respect of the two grams.  I'm not sure what the four weights, I think they're called, what the arrangement there - it may have been as much as 300, but I'm not sure about that."

Mr Fraser supplemented that in his submissions here by saying that his suggestion to the learned sentencing Judge that only that sort of money had changed hands was, to his recollection, based on something said by the woman during the committal or elsewhere, although reading the record does not reveal that particularly clearly.

In my view, because of the rather vague state of the response in answer to the learned sentencing Judge’s inquiry and in the absence of any reason to suppose that the ordinary course of events in drug transactions did not occur, it was not wholly inappropriate for the learned sentencing Judge to express a tentative impression, informed by his long experience, of the likely level of return to the applicant.

However, in any event, I am not persuaded that the applicant has made out a case that the sentence imposed is manifestly excessive.  The learned sentencing Judge was not in error in concluding that the applicant's case was of a more serious character than the kinds of cases upon which the applicant's submissions have been based.  The applicant was at the next level in the ladder of supply to those whose cases were relied on as comparable. 

With regard to the parole eligibility date, fixing a sentence of nine months from the date of sentence and making virtually full allowance for the 250 days served in respect of the other sentences imposed, which could not be allowed for as time already served, gave a reduction from the half-way point of the sentence by way of allowance for matters of mitigation that was clearly within the proper range.

I would therefore refuse the application for leave to appeal against sentence.

FRASER JA:  Mr Fraser has said all that properly could be said in favour of his client's application, but for the reasons given by Justice Mackenzie, I am not persuaded that the sentence was manifestly excessive.  I would refuse the application.

DUTNEY J:  I agree.

FRASER JA:  The order of the Court is that the application is refused.  The Court expresses its appreciation to you, Mr Fraser, and to your instructing solicitor for appearing pro bono and for providing very useful assistance to the Court.  Thank you.