R v Hirst

[2003] QCA 23

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hirst [2003] QCA 23

PARTIES:

R
v
HIRST, Charles Anthony
(appellant)

FILE NO/S:

CA No 328 of 2002
SC No 414 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

6 February 2003

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2003

JUDGES:

McMurdo P, McPherson JA and Mullins J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND
INQUIRY AFTER CONVICTION – APPEAL AND NEW
TRIAL - APPEAL AGAINST SENTENCE – where appellant convicted of trafficking, supply and possession of cannabis – where appellant entered late plea of guilty -whether the learned trial judge placed inadequate weight upon the guilty plea

R v Bellino (1999) 105 CrimAppR 137, applied

COUNSEL:

P  E Wolan for the appellant
L  J Clare for the respondent

SOLICITORS:

Harris Sushames for the appellant

Director of Public Prosecutions (Qld) for the respondent

THE PRESIDENT:  The applicant pleaded guilty on the 18th September 2002 to trafficking in methylamphetamine and cannabis sativa, supplying methylamphetamine and possession of cannabis sativa.  He was sentenced to an effective term of imprisonment of six years.  He contends that the learned sentencing Judge did not give sufficient weight to the applicant's plea of guilty in imposing that sentence.

The applicant initially pleaded not guilty to the indictment on the 18th September and a jury was empanelled.  The trial was then adjourned for counsel to confer.  In the afternoon the applicant pleaded guilty to the counts listed above and three remaining counts of possession of things for use in connection with the commission of the crime of supplying a dangerous drug were not proceeded with.  The applicant's
matter was twice before listed for sentence but was delisted when the applicant indicated he intended to plead not guilty.
The trial was expected to last three weeks and involved the calling of some 30 witnesses by the prosecution. 

The facts relating to the offending are briefly as follows. 
The applicant was in the business of obtaining amphetamine from a supplier in Gympie and cannabis from a supplier in
South Australia over a 12 months period.  The prosecution evidence turned largely on six weeks of tape recorded intercepted telephone calls from 17 customers over five separate telephone accounts.  This involved as many as 12 calls a day.  Conversations in those intercepted telephone calls refer to the supply of 300 grams of methylamphetamine involving $111,000.

A financial analysis prepared by the prosecution identified $235,000 of unexplained income and expenditure.  Whilst her Honour accepted that some of that income may have been explained by the applicant in his evidence as having been obtained in other ways, much of it remained unexplained.  $10,000 cash was found in the applicant's hotel room by police. 

Recorded telephone calls from the applicant directed that $24,500 held by another party be paid to the applicant's amphetamine supplier.  The applicant attempted delivery to his cannabis supplier of more than 50 grams of methylamphetamine together with $4,200.  An additional 50 grams of cannabis was found in his room.

When apprehended by police he did not cooperate with the authorities.  As has been noted, although he pleaded guilty, this was a late plea.  The contested plea before her Honour was heard over three days.

Her Honour noted the mitigating factors in favour of the applicant including his stable family life, his volunteer work at his children's school and the kind things said of him in tendered references.

She found that the applicant was seriously involved in the business of drug dealing, although it was impossible to calculate how much he received or for how long.  Her Honour indicated that she would take into account the plea of guilty but only regarded a modest discount in the head sentence was warranted because of the small benefit to the community as a  consequence of this plea of guilty.
Mr Nolan, who appears for the applicant, contends that her Honour's stated discount of six months' imprisonment was insufficient to recognise the benefit that flowed from the applicant's plea of guilty.  As can be seen from the facts I have stated, although the applicant's plea of guilty saved the greater part of a three week trial, on the other hand it was a late plea and the prosecution had to brief counsel and prepare for a three week trial including the organisation of some 30 witnesses.  The matter had been twice before listed for sentence.

In those circumstances, her Honour was right to note that only a modest discount in the head sentence was warranted because of the plea of guilty.  It should also be observed that the applicant has a significant criminal history for drug offences, primarily, it seems, for cannabis.  Although these convictions were summary convictions he has been previously sentenced to terms of imprisonment for his involvement with drugs.

The applicant was seriously involved in the trafficking of methylamphetamine and cannabis and was plainly making a substantial profit from it.  Co-offenders also apprehended in this time include Christensen who was a customer of the applicant and acted as his wholesaler.  Although Christensen's trafficking was more extensive and prolonged, over four years for $500,000 profit, he was sentenced to 10 years' imprisonment for his role in the commission of these and other offences.
Co-offender Higgins acted as a go between on two interstate supplies involving this applicant.  He was sentenced to a 12 month intensive correction order.  He had been recruited by the applicant to repay a drug debt and provided evidence against him.  His co-offender Entwistle was charged with one count of supply of cannabis and was given a 12 month suspended sentence.

On the facts I have stated and accepted by the learned primary Judge, which are not now contested, the sentence of six years' imprisonment was well within the appropriate range for offending of this type and adequately reflects the late plea of guilty given by the applicant.  See R v. Bellino (1999)
105 CrimAppR 137.

It follows that I would refuse the application for leave to appeal against sentence.

McPHERSON JA:  Yes, I agree with the reasons and with the order proposed.

MULLINS J:  I also agree.

THE PRESIDENT:  That is the order of the Court.

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