R v Dickinson

[1997] QCA 390

[1997] QCA 390

COURT OF APPEAL
PINCUS JA
LEE J

CULLINANE J

CA No 318 of 1997
THE QUEEN
v.

MARK RICHARD DICKINSON

BRISBANE
..DATE 08/10/97
081097 D.1 T10/LE9 M/T COA226/97
CULLINANE J: The applicant seeks leave to appeal against a
sentence of two years and six months imposed in respect of each
of two counts of supplying heroin. He was found guilty after a
trial.

The evidence at trial was that an undercover police officer was introduced to the applicant at a hotel at Fortitude Valley by another man on 10 June 1996. When the police officer indicated that he wanted to buy some heroin the applicant told him that he had a quantity for sale for $200. The undercover police officer handed the applicant $200 and in exchange received 142 grams of white powder which was analysed to contain some 28.9 per cent heroin.

The applicant told the police officer that he could supply him with what he wanted if he dropped into the hotel at any time and he took the police officer's telephone number. The second supply occurred on 30 June 1996. On the previous day the applicant was unable to supply the quantity requested but told the police officer to come back on the following day and when he did so he took the police officer to a residence at Bowen Hills and on this occasion a quantity of .154 grams of white powder was handed over which was analysed to have some 38.8 per cent heroin.

The applicant has a criminal history which includes a number of drug offences but does not include any supply convictions. There was a conviction in 1979 in Perth of possession of morphine with intention to sell or supply. The applicant had been a user but was not at the time of the offence.

081097 D.1 T10/LE9 M/T COA226/97
He had prior to the trial as His Honour the learned trial Judge
was informed engaged in a course at an organisation which is
involved in a needle exchange program.

In the course of submissions his counsel was asked whether he agreed that the range which had been suggested by the prosecutor of 18 months to three years was an appropriate range and he agreed. Indeed His Honour had placed before him two sentences by counsel who appeared for the applicant each of which involved supply of heroin of a relatively low level and in each of which the sentence imposed was two years and six months.

The applicant takes issue with His Honour's reference to a lack of remorse and his reference to the applicant's defence being in effect a silly one. The nature of the defence was to simply challenge the evidence of the police officer that supplies had occurred. I think when one has regard to the facts of the matter and the sentences imposed in the cases to which His Honour was referred which in my view are directly comparable it is not possible to conclude that the sentence imposed of two years and six months is manifestly excessive and I would refuse leave to appeal against the sentences.

PINCUS JA: I agree. One can only admire the applicant for taking steps to conquer his problem and I express the hope that he will eventually overcome it. Nevertheless, the fact that he is taking those steps does not mean that he is not required to be punished. The punishment imposed seems heavy, I am sure, to the applicant. That is not a view with which I agree; it seems to me to be consistent with the general range of punishment 081097 D.1 T10/LE9 M/T COA226/97

which is imposed in these cases and, while I feel some sympathy for the applicant's application, it is impossible to conclude that the sentence is manifestly excessive, which is the test. I therefore agree with Justice Cullinane; the application must be refused.

LEE J: I agree with the reasons of the presiding Judge and Justice Cullinane. I would however add that because of the abandonment of the appeal against conviction there should be an order formally dismissing the appeal also.

PINCUS JA: The orders of the Court will be: the appeal against conviction is dismissed; the application for leave to appeal against sentence is refused.

-----