SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  I have read the reasons for judgment prepared by Holmes JA.  I agree with her Honour’s reasons and with the order proposed by her Honour.

[2]  HOLMES JA:  The applicant was convicted on pleas of guilty of one count of unlawfully trafficking in the dangerous drugs heroin, cocaine and methylamphetamine, between 12 December 2003 and 29 September 2004, and one count of attempting to pervert the course of justice.  On the first of those counts, he was sentenced to imprisonment for 11 years and six months, with a serious violent offence declaration, while on the second he was sentenced to two years imprisonment, to be served cumulatively upon the first sentence.  At the same time, he was dealt with for breaches of suspended sentences of, respectively, five months and nine months imprisonment imposed on 20 August 2004 in respect of one offence of possessing and one offence of supplying heroin.  The suspended sentences were ordered to be served concurrently with the sentence imposed on the trafficking count.

[3] The applicant seeks leave to appeal against the sentences imposed for trafficking and attempting to pervert the course of justice.  The sole ground of the proposed appeal is that the sentences were manifestly excessive. 

The agreed facts of the trafficking

[4] According to the schedule of facts tendered by the Crown, the applicant acted as a distributor of heroin, cocaine and methylamphetamine, his primary source being one Chen, who was later convicted of similar charges.  Throughout the trafficking period, the applicant owed Chen money in sums up to $23,000.  The applicant had two “runners” working for him, one of whom was a man named Apostol.  The schedule is largely based on intercepted conversations, most between Chen and the applicant; but it includes other conversations between the applicant and Apostol and between the applicant and a supplier named Omer-Noori.  Since the applicant now takes issue with the significance of those conversations, it is necessary to provide some further detail of them.

[5] In the first block of intercepted conversations, between 13 December 2003 and 14 February 2004, there were conversations between the applicant and Omer-Noori.  In the first, the applicant asked whether Omer-Noori could provide “ice” (methylamphetamine).  He could not, but he had seven ounces of cocaine available at $4,700 an ounce; he provided the applicant with a sample, but it seems that no transaction resulted.  In a later conversation, the two discussed the price of an ounce of heroin to be supplied by the applicant and whether the applicant could obtain ecstasy at a suitable price.  On 6 January 2004, the applicant contacted Omer-Noori seeking cocaine; as a result of that conversation an arrangement was made for the applicant to buy one gram.  A week later, the applicant contacted Omer-Noori again asking for a sample for one buyer and an ounce of cocaine for another, the price of which was $5,700.  He said that he had three prospective buyers for Omer-Noori’s product.

[6] Meanwhile, the applicant and Chen were discussing supplies of heroin in amounts ranging from 3.5 to 350 grams.  In a conversation between the applicant and Chen on 25 December 2003, the applicant asked for five ounces of heroin, since he had an order for six ounces and was short of the amount needed.  Chen was to advise him when it was available, and he would collect it.  On 5 January 2004, Chen said he had available $120,000 worth of uncut heroin; the applicant called him back to say he had a buyer.  The two also discussed possible customers for large amounts of crystal methylamphetamine, because a Melbourne syndicate had 200 kg to sell.  The following day, Chen advised the applicant he could provide 350 grams of heroin for $70,000.  A week later there was some discussion of the strength of heroin supplied by Chen; the applicant indicated that he had a regular customer for it.  Later that month, Chen provided a sample of cocaine to the applicant, as a result of which the applicant later said that he had a buyer who would be interested in purchasing a kilogram.

[7] On 17 February 2004, the applicant’s vehicle was subjected to a police search, in which two clip seal bags, each containing 3.5 grams of heroin, was located.  The applicant said he was delivering it on behalf of another person.  He was charged with possession and supply, resulting in the suspended sentences imposed on 20 August 2004.  On the day after his arrest, the applicant advised Chen that he would be “off the job” for a couple of weeks, but did not think that the police had anything on his “boys”, who could continue to sell “one” (presumably an ounce) per day.  Despite the expressed intention to take a break from his activities, a week later the applicant told Chen that if he made his heroin stronger, he (the applicant) had a buyer who would take 12.5 ounces of heroin per fortnight; and a fortnight after that, the applicant sold some ounces of cocaine.  He complained then that heroin was “slow”.  There appears then to have been a hiatus in his dealing between mid-March and mid-April, during which Chen was pursuing him for moneys owed. 

[8] On 19 April 2004, the applicant told Chen that he would sell again for him.  According to his conversations with Chen, he was obtaining amounts from Chen of around 2 to 4 ounces of heroin per week for on-sale.  Among his customers were two regulars buying 3.5 grams of heroin per day.  There was also discussion between Chen and the applicant of how much methylamphetamine the applicant could sell: he estimated 10 or 15 ounces per week.

[9] On 9 June 2004, police executed a search warrant at Chen’s unit where they found 630 grams of heroin, 98 grams of cocaine, 24 grams of methylamphetamine, and 3.7grams of ecstasy.  Notwithstanding that interruption, over the ensuing months Chen and the applicant were recorded on numerous occasions discussing sales of heroin; including, on 28 June 2004, a sale of four ounces for $47,000 and on 30 June 2004, 12.5 ounces for $71,000.  In August, Chen was complaining of being owed money by the applicant despite the latter having received 30 ounces of heroin from him over the last two months.  Over the same period, the applicant asked Chen for cocaine at $4,000 per ounce, which he in turn offered to a customer at 3.5 grams for $700.  According to what he told Chen, he could sell cocaine fairly fast because of his customer base.  The applicant was also waiting on the delivery of methylamphetamine to Chen; he advised Apostol that he had 10 ounces on order and was charging $4,400 per ounce.  Later, however, he asked Chen for considerably more, a kilogram.

[10]  On 20 August 2004, the applicant was sentenced on the possession and supply charges.  The following day he went with Apostol to meet Chen, and they discussed obtaining four ounces for their customers.  A couple of days later the applicant was heard informing an unidentified male that he could sell 10 or 12.5 ounces (presumably of heroin) per week.  The anticipated methylamphetamine eventually arrived, in early September.  The applicant set about informing his customers, advising them that he would deal only in whole ounces, at $5,500 per ounce, and would give a discount for a bulk purchase of five ounces.  On 22 September 2004, the applicant told an acquaintance, L, that he wanted to set up a meeting with him and another, because he would be getting a kilogram of methylamphetamine and wanted to organise things with them.  However, the police took steps to close the operation down.  The applicant’s residence was searched on 29 September 2004; no illegal drugs were found.

The agreed facts of the attempt to pervert justice

[11]  L, with whom the applicant was discussing methylamphetamine sales, was also concerned in the second count on the indictment.  Chen wanted someone to take responsibility for the heroin, cocaine and methylamphetamine found at his premises on 9 June 2004.  Through Apostol, the applicant approached L, offering him $100,000: $50,000 to be paid once the case was concluded, with the balance paid later to L’s girlfriend.  Chen, Kan, Apostol and L met to discuss the proposal, but when L discovered how much heroin was actually involved, he thought better of the arrangement and contacted the police.  He subsequently acted as an informant in relation to the matter, while pretending to co-operate with Chen and the applicant.

[12]  The applicant was the person who dealt with L, organising for him to move into Chen’s unit, which he was instructed to clean so as to remove any existing fingerprints, while leaving his own prints about the premises.  It appears from the intercepts that the applicant gave L some hundreds of dollars, but retained for himself $44,000 which Chen had given him to pass onto L.  The applicant lied to Chen to induce him to continue providing money for transmission to L; he told him that L had actually been sentenced to eight years imprisonment, when in fact the latter was merely on remand for an assault.

The applicant’s submissions

[13]  On this application, the applicant makes various assertions: that he obtained samples of cocaine from various people for his own use because he was addicted to it, not because he wanted to sell it.  He had omitted to tell his counsel of his addiction because he did not think it was relevant.  The most he had ever sold was two or three ounces of heroin.  His conversations with Chen in which he asked for supplies were a sham to make Chen believe that he was dealing, so that he would give him more time to pay off his debts, but he did not owe Chen as much as $23,000.  Other people had used his name to run up credit with Chen, including his two runners; and although they were referred to as “runners” they were actually just people using him, the applicant, as a means of communication with Chen.  When Chen complained that he had given him 30 ounces of heroin over the preceding two months, those were really amounts given to another person using his name to get the product on credit. 

[14]  Those assertions were made from the bar table and they were, in my view, an implausible attempt to explain away the conversations précised in the schedule of facts.  I should add that in relation to the charge of attempting to pervert the course of justice, the applicant said he had told his counsel that the figure of $44,000 he was said to have received from Chen was wrong.  But he did not say that he had informed his counsel of the correct amount involved, nor did he volunteer it here.  More importantly, the schedule and what was said about it were not the subject of any challenge at the sentence hearing.  The applicant explains the lack of challenge by saying that he was not able to communicate to his barrister his disagreement with what was being said at the sentence hearing, because his barrister had his back to him.  That explanation makes little sense, however, when one looks at the way in which the sentence proceeded.

The course of the sentence hearing

[15]  The applicant was arraigned and pleaded guilty on 16 May 2008.  On that date, the Crown prosecutor tendered the schedule of facts, explaining that it showed that the applicant had been a wholesale distributor of heroin, cocaine and methylamphetamine over a nine and a half month period, with others working for him and his main source of drugs being Chen.  The prosecutor highlighted what he described as the more significant entries in the schedule, illustrating the large amounts of heroin bought and sold and the applicant’s endeavours to expand his business into cocaine and methylamphetamine.  The prime motive for the offending, he submitted, was profit.  On the same occasion, the prosecutor tendered a second schedule of facts, setting out the details of the attempt to pervert the course of justice.

[16]  The applicant’s counsel indicated on that occasion that the only factual dispute was as to the amount of money received in relation to the attempt to pervert justice charge.  However, he also alerted the Court to the fact that Chen had been sentenced and had appealed his sentence to the Court of Appeal, suggesting that it would be appropriate if the applicant’s sentence were adjourned pending the result of that appeal.  The learned judge adopted that course of action.  The hearing resumed on 26 November 2008, with the prosecutor once again making submissions about the already tendered schedule of facts.  Counsel for the applicant made his submissions; this time he did not raise any dispute as to any of the facts contained in either schedule.

[17]  Given the sequence of events, the applicant’s assertion that he was somehow prevented from disputing the Crown’s allegations is simply not tenable.  Not only was he well aware in May 2008 that the Crown relied on a schedule of facts, but through the prosecutor’s oral submissions at that time he was informed of many of its details, and certainly of its effect.  Had he wished to give further instructions, he had six months in which to do so.  It is apparent that he did not: his counsel took no issue with the schedules.  Significantly, too, counsel specifically said that the applicant did not contend that he was addicted to the drugs he was selling.  There is simply no basis for this Court to receive or act on the alternative set of facts now proposed by the applicant, including his claims about the limited extent of his dealing and his addiction to cocaine.

The sentence

[18]  By way of mitigation, counsel put in the applicant’s favour that he had had a full hand-up committal and the matter had never been listed for a contested sentence (although the credit given in respect of the latter feature now seems a little doubtful).  Counsel pointed to the delay in charging the applicant: although the operation finished in late 2004, he was not charged until 2006, and he had not since 2004 been accused of any further offences.  Since then he had been in regular, legitimate work.  He financially supported and had regular contact with two daughters, who lived with his ex-wife.

[19]  The learned judge in sentencing took into account the applicant’s legitimate employment history since he had ceased dealing in drugs, the fact that he was the father of two small daughters, and his plea of guilty.  He noted that the applicant was not “an addict in the true sense of the word”.  The applicant had dealt in cocaine, heroin and methylamphetamine in what was merely a commercial enterprise.  Some of those dealings had occurred while the applicant was on bail on drugs charges, and some while he was on a suspended sentence.  The learned judge accepted that the applicant was not himself the recipient of large sums of money; rather, he owed money to Chen.  He sentenced on the trafficking charge on the basis that the applicant was at a lower level of involvement and criminality than Chen.  In relation to the count of attempting to pervert the course of justice, the applicant had taken a leading role in dealing with L.  His Honour saw no basis for distinguishing between his conduct and that of Chen.

Comparable sentences

[20]  In contending that the sentence was within a proper range, the Crown relied on four decisions of this Court: R v Matasaru [2000] QCA 246; R v Do [2000] QCA 135; R v Le [2002] QCA 17; and R v Chen [2008] QCA 332 (concerning the applicant’s supplier).  In Matasaru, the applicant, who was 47 years old, with no relevant prior convictions, was sentenced to 12 years imprisonment for trafficking in heroin.  He had made a number of supplies to an undercover officer, the largest of which was the sale of 28 grams of powder for $9,000.  When his house was searched 241 grams (149 grams pure) of heroin were found, as well as $22,000 in cash.  It was said on his behalf that he trafficked to pay off debts to suppliers who he feared might harm him or his family.  He pleaded guilty, but the Court noted that the allowance for that factor was limited by the fact that the Crown case was very strong and the applicant had done nothing to assist the police in identifying his suppliers.  His application for leave to appeal against sentence was dismissed.

[21]  In Do, the 22 year old applicant had sold some $20,000 worth of heroin (about 25 grams pure) over a four month period, with a further supply while he was on bail after his arrest of 3.3 grams of heroin.  On his arrest he was found to be in possession of 77 grams (63 grams pure) of heroin.  He was a wholesaler, with a runner to help him make his sales.  He had pleaded guilty; he had some minor criminal history not involving drugs.  This Court upheld his sentence of 12 years imprisonment, noting that a significant feature of the case was the re-offending while on bail. 

[22]  In Le, the applicant for leave to appeal against sentence had pleaded guilty to a charge of trafficking in heroin over a four month period.  His age is not clear but he had no previous convictions.  He had acted as a distributor for his brother, distributing heroin to wholesalers and depositing $326,000 into accounts in his brother’s name.  About half a kilogram of heroin was found in his possession when he was apprehended.  A sentence of 14 years imprisonment was upheld.

[23]  Chen, the applicant’s supplier, was sentenced to 14 years imprisonment for trafficking in heroin, cocaine, ecstasy and methylamphetamine over a period between 1 January 2003 and 29 September 2004, with a further, cumulative sentence of two years imprisonment imposed on the count of attempting to pervert the course of justice involving L.  As well as being higher in the distribution hierarchy than the applicant, Chen trafficked for some months longer and was shown over the trafficking period to have spent some $2 million (of which $1.85 million was deposited into his suppliers’ accounts) which could not be accounted for by any legitimate source of income.  He was the same age as the applicant (31 at sentence); he had the care, with the help of his parents, of a young daughter.  He had some minor criminal history not involving drugs and was said to be addicted to heroin.  His application for leave to appeal against his sentence as manifestly excessive was refused.

[24]  The applicant referred to two authorities.  The first was R v Hamlet [2002] QCA 71, in which the applicant was sentenced to nine years imprisonment on a charge of trafficking in heroin.  It seems she was selling direct to users.  The Court observed that an appropriate starting point for the sentence in her case was 10 to 12 years, but there were a number of mitigating factors: the applicant had been a heroin addict, but had very positive reports from a psychologist and a community corrections officer about her prospects of rehabilitation.  She had the sole care of an 11 year old son.  Those factors persuaded this Court to reduce her sentence to seven years imprisonment. 

[25]  The second case to which applicant adverted was R v Nguyen [1999] QCA 258.  It involved a wholesale supplier of high grade heroin, who was apprehended after making an arrangement with three others to sell almost 770 grams of powder, 590 grams pure heroin, to an undercover operative.  The total amount involved in his trafficking was 957 grams, containing 700 grams of pure heroin.  Nguyen would have made a profit of $99,000 if the sale had proceeded.  This Court regarded the starting point for sentence in that case as 16 years imprisonment.  Sixteen months was deducted to allow for pre-sentence custody, and the sentence was reduced by a further two years for the applicant’s youth (he was only 22) and his guilty plea.  He was sentenced to 12 years and eight months imprisonment.

Parity with Chen

[26]  The applicant did not make the significant amounts that Chen did from his dealing, and was properly dealt with as below Chen in the distribution chain.  But he was shown to have engaged in trafficking in a variety of drugs over at least the period between mid-December 2003 and late September 2004; and, unlike Chen, for some seven months of the trafficking period, he was offending while on bail on the possession and supply charges.  In the last few weeks of the trafficking period, he was serving a suspended sentence; indeed, it is noteworthy that he was making arrangements with Chen the day after the imposition of the suspended sentence.  That is a particularly reprehensible feature of the case. 

[27]  The sentence of 11 years and six months imprisonment on the trafficking properly reflected the differences, favourable and unfavourable, between the applicant’s case and Chen.  The cumulative sentence of two years imposed in respect of the attempt to pervert the course of justice was, in my view, appropriately made the same as for Chen.  The applicant was the prime mover in the approach to L and in giving him directions as to what he was to do; and he obtained a substantial financial benefit from the arrangement.  And, comparing the sentences in their totality, it is of some importance to note that the applicant, unlike Chen, faced a possible cumulative sentence when the suspended sentences were activated; but had the benefit of those sentences being imposed concurrently. 

Comparability with other sentences

[28]  The reality is that it is possible to find cases in which traffickers at similar levels to the applicant received lesser sentences; but there are also many in which more severe sentences were upheld on appeal.  The range is a wide one, variable according to many factors, including age; criminal history; remorse and rehabilitation; co-operation with the administration of justice; the amount and variety of drug trafficked; the length of the trafficking period; the profits made; the level at which the offender operates in the distribution hierarchy; whether the offender is trafficking to feed an addiction; whether he or she desists of his or her own accord or is apprehended; and whether the offence is committed while on bail or a suspended sentence. 

[29]  In my judgment on Chen’s application, I reviewed three comparable cases, R v Truong and Nguyen [2001] QCA 98, R v Nabhan [2007] QCA 266 and R v Omer-Noori [2006] QCA 311.  It is not necessary to repeat that review, but those authorities support the sentence imposed here for trafficking; as do the cases cited by the Crown, Matasaru, Do and Le, and Nguyen, cited by the applicant.  The applicant sought to distinguish those cases on the basis that they involved dealing in heroin at high levels of purity.  That is true; but they did not possess certain factors I have identified here: the dealing in a range of drugs and in defiance of a suspended sentence; nor the feature of activated suspended sentences being made concurrent.  The applicant in Hamlet similarly was not offending while on bail or a suspended sentence; she operated at a different level of trafficking from the present applicant; and she was a heroin addict.

Conclusion

[30]  The sentences imposed on the applicant were not manifestly excessive.  I would dismiss the application for leave to appeal against sentence.

[31]  A LYONS J:  I agree with the reasons given by Holmes JA that the application for leave to appeal against sentence should be dismissed.