R v Duggan

[1996] QCA 218

IN THE COURT OF APPEAL	[1996] QCA 218
SUPREME COURT OF QUEENSLAND

C.A. No. 441 of 1995 C.A. No. 465 of 1995

Brisbane

[R. v. Duggan]

THE QUEEN

v.

BRIAN JOHN DUGGAN

(Applicant) Appellant

Macrossan C.J.
Fitzgerald P.

Davies J.A.

Judgment delivered 25/06/1996

Joint reasons for judgment of Macrossan C.J. and Davies J.A.; separate concuring reasons of
Fitzgerald P.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPLY FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	CRIMINAL LAW - appeal against conviction - trafficking in methylamphetamine and cannabis sativa - supplying methylamphetamine, cannabis sativa and cocaine to a covert police operative - inducement to commit a crime - exclusion of illegally obtained evidence - Ridgeway v. R. (1995) 69 A.L.J.R. 484.
CRIMINAL LAW - application for extension of time within which to apply for leave to appeal against sentence - supplying methylamphetamine - supplying cannabis sativa - supplying cocaine - trafficking in methylamphetamine and cannabis sativa - possession of methylamphetamine and cannabis sativa - possession of equipment used in connection with the commission of a crime under the Drugs Misuse Act 1986.
Counsel:	Applicant/Appellant appeared on own behalf Mr. J. Costanzo for the respondent
Solicitors:	Applicant/Appellant appeared on own behalf Queensland Director of Prosecutions for the respondent
Hearing Date:	8 February 1996

JOINT REASONS FOR JUDGMENT - MACROSSAN C.J. AND DAVIES J.A.

Judgment delivered the 25th day of June 1996

The appellant was convicted on his own plea in the Supreme Court on 12 October 1995 on eight counts of supplying methylamphetamine, one of supplying cocaine, two of supplying cannabis sativa and one of trafficking in methylamphetamine and cannabis sativa. He was also convicted of possession of methylamphetamine and cannabis sativa and possession of equipment used in connection with the commission of a crime under the Drugs Misuse Act. The appellant pleaded guilty to all counts only after a voir dire in which he challenged the admissibility of evidence from a number of witnesses including police officers one of whom, whose assumed name was Kruger, he said procured him to commit these offences.

He appeals against those convictions on the ground that the evidence should have been excluded and that without it he could not have been convicted. It seems to have been common ground that, without the evidence to which he objected, he could not have been convicted. His appeal on this ground is complicated by his plea of guilty. However it is convenient to turn first to the question whether that evidence should have been excluded.

The appellant does not dispute that, on the occasions specified in the charges to which he pleaded guilty, he supplied amphetamine, cocaine and marijuana to Kruger. It was the combination of these acts of supply which, together with evidence that he was supplying to others, constituted the trafficking charge.

The first sale of amphetamine occurred on 2 March 1993. On that occasion Kruger purchased an ounce of powder containing amphetamine from the appellant for $1,600. The appellant, in answer to a question from Kruger, said that the percentage of amphetamine "in his gear" was usually 30-35% but that this was 10-14%. He said that the reason for this was that a piece of machinery was "fucked" and that he was waiting for a replacement part from the States. He said that he had the best "goey" on the Coast, "goey" being a slang word for amphetamine. He said that there were four chemists from the States working on it. He also volunteered that, in a couple of weeks, he would have "heaps of bud to get rid of", bud being a slang word for the head of the cannabis plant. He said that there would be about 400 lbs of it. Kruger indicated that he would be interested in taking some.

On 5 and 6 March Kruger and the appellant had two telephone conversations. In the first the appellant said, in effect, that he had more amphetamine for sale of a better quality and price; and in the second he said in effect that he had already sold it.

In the course of several telephone conversations Kruger arranged to buy a further ounce of amphetamine from the appellant on 17 March. On that day the appellant put to Kruger a proposition that he could have an ounce for $1,500 but that if he could "get rid of a few" he could have them for $1,300. He said that he was buying a pound that night and that he had another buyer to whom he was putting the same proposition. He said that the percentage of amphetamine in the powder was 25-30%. Kruger on that occasion purchased one ounce of amphetamine for $1,500, having earlier been supplied with a small quantity to taste.

Pursuant to arrangements made on 25 and 26 March, on the latter date Kruger purchased one ounce of amphetamine from the appellant for $1,300. On that occasion also the appellant and Kruger had a further conversation about the 400 lbs of marijuana. The appellant said that it was still up north, it was not dried yet but that it would be down in the next ten days. The appellant agreed with the proposition put to him by Kruger that he would want to sell it in 100 and 50 lb lots and said that a man in Melbourne wanted 100 lbs. He said that he could not quote a price until he had seen it but that, for bulk, anywhere between two and a half and three and a half.

Again pursuant to a prior arrangement Kruger bought another ounce of amphetamine from the appellant on 2 April for $1,300. On that occasion the appellant said, in effect, that some better quality amphetamine would soon be available, that the breakdown of machinery in the cookhouse had been sorted out. Kruger asked him if he could supply a weight of cocaine to which the appellant replied that he could do it that night if Kruger wished. Kruger said that he did not know whether he could get the money that afternoon and the appellant said that he could supply it the next day. It was then arranged that Kruger would page the appellant the next day. However that night Kruger rang the appellant and asked if he could obtain two weights of cocaine that night. The appellant said that he could and, a little later, they met and the appellant handed over two weights of cocaine for which Kruger offered $400. At first the appellant said, in effect, that at that price he was making nothing out of it. However when Kruger reminded him that "you do alright out of me" the appellant agreed to that price and accepted the amount as deposit.

On 8 May, after an arrangement initiated by the appellant, the appellant and Kruger met for a drink and afterwards the appellant gave Kruger sample quantities of marijuana and of "new gear" amphetamine to try. No payment was sought or given.

On 8 June, pursuant to a prior arrangement, the appellant and Kruger met again and the appellant sold Kruger 1 oz of amphetamine for $1,000 and 1 lb of marijuana for $350.

On 14 July, as a result of a prior arrangement, the appellant and Kruger met with a view to completing the sale of 1 lb of amphetamine for $10,000. Kruger saw and weighed the amphetamine and placed it in his briefcase. He then left the meeting place ostensibly to get the money from his car. He took no further part in the operation.

The conversations referred to above, if accepted, prove not only the transactions referred to but that the appellant was in the business of dealing in drugs in a substantial way. As to the transactions, an ounce of amphetamine, according to Kruger, is a substantial amount, not the kind of amount that an ordinary user would be buying. An ordinary user would buy a gram which is about 1/27 or 1/28 of an ounce. The last transaction, was, of course, for a pound of amphetamine.

The conversations on 2 March showed that the appellant was trafficking in methylamphetamine and was trafficking or about to traffic in cannabis. Although it was put to Kruger in cross-examination that he had "coloured up" that conversation to justify the charges, it was not put to him what, if any, of the conversation did not take place. Moreover references to the machinery breakdown and the large quantity of marijuana occur in later conversations none of which were challenged and no contradictory evidence was adduced. The conversation on 6 March showed that the appellant was selling methylamphetamine to others; the proposition which he put to Kruger on 17 March showed not only that he was selling substantial portions of methylamphetamine but also that he was seeking to increase his sales; and the final transaction again showed that he had access to substantial quantities of methylamphetamine.

There were also cutting agents and measuring spoons found in the appellant's house which indicated that he was cutting amphetamine himself.

The case for the appellant, here and below is and was that he was merely a drug user, but not a dealer, when he first encountered Kruger, that he was in a vulnerable state of mind due to the collapse of his marriage and his business and his drug and alcohol dependence and that Kruger induced him to deal in drugs. That case is inconsistent with the uncontradicted and substantially unchallenged evidence of Kruger and, not surprisingly, with the judgment of the learned trial Judge who concluded that the appellant had trafficked in dangerous drugs before his first encounter with Kruger.

This was, as his Honour said, a case of an "unwary criminal": Ridgeway v. R. (1995) 69 A.L.J.R. 484 at 500-501. Once the unchallenged and uncontradicted evidence of Kruger is accepted it is difficult to see what relevance the appellant's asserted vulnerable state of mind would have had. He was a willing seller, apparently able to acquire substantial quantities of methylamphetamine and cannabis sativa and willing to offer discounts to Kruger and at least one other buyer as incentives to them to purchase in larger quantities. Moreover Kruger, on this evidence, did no more than gain the appellant's confidence and then offer to buy drugs from him. It is true that almost all contact between the appellant and Kruger was initiated by Kruger but there is no evidence that, upon making contact, he did anything more than offer to buy drugs which the appellant was willing to sell.

It is unnecessary in this case, in our view, to engage in a close analysis of the reasons for judgment of the High Court in Ridgeway. No illegal or improper conduct by Kruger induced the commission by the appellant of any of his offences. The only illegal conduct by Kruger was the purchase by him of the drugs which the appellant sold. It could not be said that those purchases induced the sales. In one sense, of course, Kruger's offers to buy induced the sales. But the making of the offers was not illegal and, having regard to the evidence of the nature and extent of the appellant's criminal business and the absence of any harassment or manipulation in making the offers we do not think that they were improper: Ridgeway at 493.

But even assuming, contrary to the view expressed above, that the making of offers by Kruger to purchase the drugs constituted illegal or improper conduct inducing the sales by the appellant, this was nevertheless plainly a case falling within the first category referred to in the joint judgment in Ridgeway in which the public interest in the conviction and punishment of the appellant prevails over other considerations such as the undesirable effect of curial approval, or even encouragement, being given to illegal or improper conduct by police: see especially at 494.

In our opinion the learned trial Judge's ruling on the voir dire was correct. It is therefore unnecessary to consider whether, if it had not been, the appellant's plea of guilty would have been an impediment to his prospects of success on appeal. The appeal against conviction must be dismissed.

The appellant also sought an extension of time within which to apply for leave to appeal against sentence. The application for such extension was, in effect, reserved, and the appellant was allowed to present his substantive argument on the sentence application.

The sentences effectively totalled four years imprisonment, that being the sentence imposed for trafficking. His other sentences, which were concurrent, were two years for the supply on 14 July and one year on each of the other offences.

The circumstances of the offences have already been described. There is no doubt of the seriousness of those offences, especially the supply on 14 July and the trafficking. The appellant was a drug dealer in several drugs and in particular in amphetamine in a substantial way.

The learned sentencing Judge took into account, as factors which played a part in the commission of his offences, his marriage and business failures. Other factors which he correctly took into account in the appellant's favour in sentencing him were the absence of any previous convictions of any kind, his apparently good work record until his last business failure and his pleas of guilty albeit only at trial after the objections to evidence had failed. The appellant also relied on his apology and his acknowledgement that his conduct was improper both made after his pleas of guilty. However it may be doubted whether these were indicative of remorse when one has regard to the way in which the trial and appeal were conducted.

The respondent referred us to two decisions of the Court of Criminal Appeal, Dorey, C.A. No. 274 of 1987, 2 February 1988 unreported and Cuddy (1988) 37 A.Crim.R. 226.

The applicant in the first of these cases was a 40 year old man with only minor and unrelated prior convictions and a reasonable employment history. He was convicted after a trial of possession of 16 gms of amphetamine and was sentenced at first instance, in effect, to seven years and ten months imprisonment. Notwithstanding that the Court on appeal thought that it was fair to regard him as having played a substantial role in the distribution of very significant quantities of amphetamine his sentence was reduced by the court to four and a half years imprisonment.

Cuddy was a 36 year old man convicted of three offences of trafficking in methylamphetamine. He appealed against the sentence of four and a half years imprisonment. It was reduced by the Court of Criminal Appeal to three years. Although the decision on appeal was given on 24 October 1988 the Court does not appear to have been referred to Dorey.

Cuddy had a criminal record including five separate offences of stealing, breaking and entering or attempted breaking and entering. More importantly in May 1986 he was convicted of selling methylamphetamine for which he was sentenced to six months imprisonment and committed the subject offence within nine months of his release.

The main features of Cuddy were said to be the nature of the drug, the fact that the applicant was in the business of selling it in moderate quantities, the fact that he was not involved in its manufacture or packaging and was at the lower end of an extended chain of supply and the aggravating circumstance that he was reoffending within nine months of release after conviction for selling the same drug. The appellant was himself addicted to that drug.

The trafficking offence in the present case was a much more serious one than that in Cuddy. The quantities were much greater and the appellant's ready access to large quantities together with the statements which he made indicated that he was by no means at the lower end of the supply chain. By contrast Cuddy was a very small dealer substantially to feed his own habit. Moreover the offences relating to cannabis and cocaine in the present case indicate that the appellant had ready access to those other drugs, in the former case on his own admission in substantial quantities.

Those cases, together with recent decisions of this Court, show that the sentence imposed here was not outside the appropriate range. White, C.A. No. 56 of 1992, judgment delivered 11 June 1992 was convicted on his own plea of unlawfully trafficking in amphetamine, methylamphetamine, THC and cannabis sativa. He was sentenced to three years imprisonment. As in this case, the transactions occurred between the applicant and an undercover police officer. The applicant's case was that the police officer pestered him to sell drugs, making up a story that he was desperately in need of funds in order to induce the applicant to obtain drugs and sell them to him. The quantities and amounts involved appear to have been substantially less than in this case. The applicant was sentenced on the basis that he was procured to sell by an undercover police officer who became a close friend, that these transactions produced him little material gain except the amount of methylamphetamine which he took on each occasion to feed his own habit. Moreover he moved his place of residence for the purpose of ceasing to be involved in the drug scene but was pursued by the police officer who again attempted to obtain amphetamines from him, this time without success. White co-operated with the police supplying names and addresses of his suppliers. The sentence was not interfered with but, having regard to the personal factors mentioned above, a recommendation was made for eligibility for parole after nine months.

Chan C.A. No. 334 of 1992, judgment delivered 23 February 1993, was an Attorney's appeal against a sentence of, in effect, four and a half years for trafficking in lysergide, amphetamine and some of its derivatives. This case also involved sales to an undercover policemen over a period of about 13 days. The profits expected from the transactions were thought to be about $10,000 for the sales of amphetamine and $3,000 for the sales of LSD. The respondent, like the appellant here, was sentenced on the basis that he had been carrying on the unlawful business of trafficking in drugs before he met the undercover policeman. The learned sentencing Judge was satisfied that the respondent was a significant link in the chain of drug distribution. The respondent was not a drug user. The appeal was allowed and the sentence increased to one of seven years. Although the offences in that case were more serious than those in this, the sentence imposed by the Court in that case justifies that imposed in this one.

We would therefore refuse the application for an extension of time within which to apply for leave to appeal against sentence.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 25/06/1996

The circumstances giving rise to this appeal and the application for an extension of time within which to apply for leave to appeal against sentence are set out in the reasons for judgment of the other members of the Court.

The appellant did not first commence to supply or traffic in drugs at the instigation of a law enforcement officer, but was already engaged in such activities when first approached by the covert police officer as a “customer”. His later sales to that police officer occurred in the continuing course of his activities, according to his own statements at that time. In my opinion, in such circumstances the trial Judge was entitled to rule the evidence admissible at the end of the voir dire: see Gudgeon C.A. No. 377 of 1994, unreported judgment delivered 17 November 1995.

I agree that the appeal against conviction should be dismissed. I also agree with the other members of the Court that the application for an extension of time within which to apply for leave to appeal against sentence should be refused, and have nothing to add to their reasons.