R v Chao

[1999] QCA 293

COURT OF APPEAL 99.293

McMURDO P THOMAS JA CULLINANE J

CA No 94 of 1999

THE QUEEN

v

YOKKET CHAO Applicant

TOWNSVILLE

..DATE 28/07/99

JUDGMENT

CULLINANE J: In this matter the applicant seeks leave to

appeal against a sentence of four years imprisonment imposed
in the Supreme Court at Cairns on 11 March 1999 for an offence

of supply of a dangerous drug, in this case heroin. He is 38 years of age and has two previous convictions. He was at the

time of the commission of this offence on a good behaviour

bond in respect of a count of unlawful use of a motor vehicle

and possession of tainted property.

The circumstances of this offence are that on the date

concerned an undercover police officer went with another

person to the applicant's flat at Cairns, where the applicant

and another man, Vongphakdy, who also resided at the flat,
were present. There was a discussion between Vongphakdy and

the agent, in which Vongphakdy told the agent that the cost of

heroin was $700 a gram. In the course of the conversation
which took place then, about the purchase of that heroin, the
applicant took part and later was involved in the weighing of

the heroin and produced from his clothing a quantity of heroin

to make up the required amount. There was a further

conversation about the future supply of heroin, in which both

Vongphakdy and the applicant took part.

It is probably a fair summary to suggest that whilst the

applicant was an active participant in the discussions and in

the transaction, that Vongphakdy played a more leading role.

The submissions for counsel on behalf of the applicant

primarily focused upon the sentence of four years imposed on

Vongphakdy in December 1998 in respect of three offences.

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Those three offences included, of course, this offence, an

additional offence of possession of a small quantity of heroin
and a subsequent offence of possession of a substantially

greater quantity of heroin. The third of the offences was

committed shortly after he had been charged with the first two

offences.

It was submitted that in imposing a sentence of the same

duration as that imposed on the co-offender His Honour did not

make any allowance, as he ought to have, for what is said to

be the difference between the circumstances of the two and, in

particular, the commission of the further offence by

Vongphakdy after he had been charged with the earlier two.

This is undoubtedly a point of distinction between the two

men.

Both of them are Laotian by origin and they had been

associated for a considerable time. The applicant resided in
the premises where the offence, the subject of this
application, was committed and had, it would seem, permitted

his co-offender to live there with him. It was suggested that

he was frightened of his co-offender and influenced by him,

something which His Honour thought was offset by the evidence
of his active participation in the commission of this offence,

his long association with his co-offender and the fact that he

had invited him to live at the premises where the offence was

committed.

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Whilst, as I have said, Vongphakdy's conviction of the third

of the offences for which he was dealt with in November is a

point of distinction, on the other hand, the applicant is a

much older man than his co-offender, he was on a good

behaviour bond at the time this offence was committed and his

premises were used in the commission of this offence.

I think when all of these considerations are taken into

account it is not possible to reach the conclusion that the
sentence imposed was manifestly excessive. In my view it was
within the range of a sound sentencing discretion and I would

refuse the application.

THE PRESIDENT: I agree with what has been said by Justice

Cullinane. I would only add that the fact that Vongphakdy

committed another offence whilst on bail is offset to a
reasonable degree by the fact that this applicant committed

these offences whilst on a good behaviour bond for offences of

tainted property. Although he was slightly less involved in

this offence than Vongphakdy, his premises were used at the

time, and he was much older than Vongphakdy.

When all these circumstances are considered together it cannot

be said that there is a justifiable sense of grievance,

because each of them were sentenced to four years

imprisonment. In the circumstances, where neither were

addicts but were involved in these offences for commercial

gain, it cannot be said that the sentence of four years

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imprisonment is in any way manifestly excessive.

I would refuse the application for leave to appeal against

sentence.

THOMAS JA: I agree. On my interpretation of the

circumstances of supply to the undercover agent, both men
seemed equally enthusiastic and equally involved overall. The

two other offences of which Vongphakdy was convicted were not

likely, in my view, to have significantly aggravated the

overall sentence of four years imposed upon him.

As the other members of the Court have mentioned, there were

certain countervailing circumstances which enabled comparisons
and offsetting to be made between the two men. In my view the
circumstances are not sufficient to enable any justifiable
sense of grievance to be entertained. I agree with the orders

proposed.

THE PRESIDENT: The order is the application for leave to

appeal against sentence is refused.

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