R v D & Attorney-General of Queensland

[1995] QCA 332

IN THE COURT OF APPEAL [1995] QCA 332

SUPREME COURT OF QUEENSLAND

C.A. No. 13 of 1995

Brisbane

[R. v. D]

THE QUEEN

v.

D

(Respondent)

ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

Macrossan CJ
Byrne J

White J

Judgment delivered 04/08/1995
Judgment of the Court

APPEAL ALLOWED. SET ASIDE THE RECOMMENDATION FOR IMMEDIATE PAROLE AND IN LIEU THEREOF SUBSTITUTE A RECOMMENDATION THAT THE RESPONDENT BE ELIGIBLE FOR PAROLE AFTER SERVING 15 MONTHS OF THE SENTENCE.

CATCHWORDS: CRIMINAL LAW - sentence - informer's

discount.

Counsel:  Mr P Rutledge for the appellant
Mr A Rafter for the respondent

Solicitors: Director of Public Prosecutions for the

appellant

Legal Aid Office for the respondent

Hearing Date:  14 March 1995

REASONS FOR JUDGMENT OF THE COURT

Judgment delivered 04/08/1995
In December last year, D was convicted on his pleas of guilty of carrying on a business of unlawfully trafficking in heroin, of having unlawfully supplied heroin, and of the possession of a mobile phone and a motor vehicle used in connection with his heroin dealings. He was sentenced to eight years imprisonment for the most serious offence and to imprisonment for lesser terms on the supply and possession charges. He was recommended for immediate parole. The Attorney-General appeals against the sentence. D was 22 when the offences were committed between early April and late May 1994 and at his sentencing. From the age of 18, he occasionally used heroin, and he had been treated for his susceptibility to the drug since late 1992. His treatment included a methadone regime. But he was not an addict, and he did not engage in the heroin trade to satisfy an addiction. Profit was his motive.
During the less than two months in which D carried on his illicit business, he supplied an undercover agent with heroin on eight occasions. In all, D gave the agent 11.763 gm of powder containing 8.589 gm of heroin varying in purity between 62.4% and 75.1%. D received $11,380 in exchange. Yet his reward was small. Most of the $11,380 was paid to his supplier. Typically, D earned between $30 and $50 on a sale. In aggregate, he earned about $250 from sales to the agent. The agent, however, was not D’s only customer, and D had broached with the agent the prospect of more substantial deals.

When apprehended, D admitted most of the details of his transactions with the agent. He declined to comment on the extent of his other sales. He did indicate an intention to plead guilty at his committal proceedings and saved the expense and inconvenience of a trial.

D had previously been convicted. In April 1990 he was awarded two years probation and ordered to perform community service for multiple acts of dishonesty. Less than a month later, he was fined for another false pretence and for receiving - offences committed shortly before April 1990. In May 1991 he was fined for a stealing committed less than a year into the probation period; and, for that breach of probation, in December 1992 a further year's probation was awarded. About six months later, D was fined for permitting his premises to be used for a drug offence. His second period of probation expired in December 1993. Within four months he began trafficking in heroin.

Sentences in broadly comparable cases (for example, R v. Scaunasu, CA No 5/93, 26 February 1993 and R v. Sebez, CA 100/94, 17 May 1994) show that the head sentences were within the range of a sound sentencing discretion, and the contrary was not suggested. The challenge is confined to the recommendation for eligibility for immediate parole, which is said to accord insufficient recognition to deterrence.

Several considerations favoured leniency. D is young. The woman with whom he had maintained a defacto relationship was eight months pregnant when he was sentenced. By participation in a reducing methadone regime to overcome a susceptibility to opioids, D had made some efforts towards rehabilitation. And the timely pleas of guilty had resulted in resource savings. Those factors, however, could not sustain a recommendation for immediate parole in view of the seriousness of the offences and the profit motive which accounts for them.

As the sentencing judge's remarks make plain, the parole
recommendation resulted from D’s cooperation with the police,
which extended to giving information about other drug offenders.
D’s information assisted in the apprehension of a supplier of
heroin who operated above street-level and his cooperation was
expected to lead to the identification and prosecution of other

drug offenders. Such cooperation justified a substantial

reduction in the sentences.
In Malvaso v. The Queen (1989) 168 CLR 227, Deane and McHugh JJ said (at 239):

"It would be to close one's eyes to reality to fail to recognize that in areas of organized crime in this country, particularly in relation to drug offences, the difficulties of obtaining admissible evidence are such that it is imperative, in the public interest, that there be a general perception that the courts will extend a degree of leniency, which would otherwise be quite unjustified, to those who assist in the exposure and prosecution of corrupt officials and hidden organizers and financiers by the provision of significant and reliable evidence ... Any person who provides genuine information to the authorities about the workings of organized crime exposes himself to the danger of retributive violence. That danger can be aggravated within a prison environment."

In R v. Thompson (1994) 76 A Crim R 75 this Court considered the significance of information provided by an offender which had helped to solve many other crimes. The Court recognised that substantial discounts from the sentence which would otherwise be appropriate may be justified where an offender implicates others. The Court said (at pp. 78-79):

"Another indication that in appropriate circumstances heavy discounts may be granted for co-operation of the kind being considered is to be found in the Western Australian case of Hayes (1981) 3 A.Crim.R. 286. There the applicant had been sentenced to 7 years imprisonment, principally for a number of offences of breaking and entering with intent. There had been co-operation to enable the police to identify and prosecute other persons. Burt CJ remarked:

'It is well recognised and has always been that informers can be of enormous value in the detection of crime and in the bringing of offenders to justice. Some would say that for that purpose their use is essential...Hence the dilemma. If, when an informer comes to be punished for his own criminal acts, no reward at all is given to him for the information given by him leading to the apprehension and punishment of other criminals, that information will not be forthcoming...If, on the other hand, the reward for an informer so placed is too large, it could lead to the giving of false evidence and to many other abuses'. (287)

His Honour also said:

'But should it appear that the information given has been of substantial assistance in the detection of crime and in the conviction of offenders and that the disclosures made have been full and frank, then when he comes to be sentenced some allowance should be made on that account. In a number of reported cases it appears that the allowance has been substantial and it has resulted in a reduction in the sentence of 50% or even more. But each case must of necessity rest upon its own facts'.

The sentences were reduced from 7 years to 4 years."

See also s.9(2)(i) of the Penalties and Sentences Act

1992; R v. Many (1990) 51 A Crim R 54, 69; and R v. Mundy (1994)
76 A Crim R 92.

The judge appreciated that the revealing of suppliers of heroin is important to the suppression of the trade and should therefore be reflected in a significant way in sentencing. And, as his Honour said, another, related consideration favoured leniency. The giving of information which is believed to identify heroin dealers, especially those higher in the chain of distribution, carries such a risk of retribution that an imprisoned informant can expect to be held under especially burdensome conditions. (Parole has not been extended pending the determination of the appeal. In the meantime, D is confined with sex offenders in protective custody.) Moreover, in general, the risk of reprisal might not cease with incarceration.

It was acknowledged for the Attorney-General that a substantial discount is required to compensate for difficulties during detention and to induce others to inform. It is said, however, that the recommendation for eligibility for immediate parole has overlooked the need for the imposition of a punishment sufficient to promote personal and, perhaps more importantly in this case, general deterrence.

Excessive leniency in circumstances like those presented here carries risks. First, the effective sentence may be so disproportionate to the gravity of the offence and the personal circumstances of the offender as to affront community standards:
cf. R v. Gallagher (1991) 23 NSWLR 220, 232. Secondly, too great an allowance for an informant's cooperation "could", as Burt CJ said in Hayes, "lead to the giving of false evidence and to many other abuses". The discount for implicating other heroin dealers must be substantial to induce the cooperation of informants. It ought not, however, to be so great as to overreach the need for sufficient punishment or to encourage false allegations.

The judge attached considerable significance to the prospect of retribution. However, in emphasizing the risks to personal safety which D assumed by his cooperation, his Honour appears to have attached little or no weight to those considerations which pointed towards detention. The factors favouring leniency did justify a recommendation for eligibility for much earlier than usual parole. But immediate parole was too lenient.

There should still remain to be served a custodial term of some significant dimension. D has already served about eight months since his sentence commenced, but if that were to be the total it would be inadequate to meet the purposes to be considered. It should be added to. While the demands of the situation do not point precisely to any particular term, a period of 15 months before parole eligibility will concede a substantial reduction from the automatic eligibility point but will stop short of excessive consideration for his position.

The appeal should be allowed and the recommendation for eligibility for immediate parole set aside. Instead, in recognition of all the circumstances of mitigation mentioned, including the cooperation, it should be recommended that D be eligible for parole after serving 15 months of the sentences.