R v Johnson

[1997] QCA 351

IN THE COURT OF APPEAL	[1997] QCA 351
SUPREME COURT OF QUEENSLAND

C.A. No. 334 of 1997.

Brisbane

[R v. Johnson]

T H E Q U E E N

v.

PAUL JOHNSON

(Applicant)

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Pincus J.A.
Lee J.

Cullinane J.

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Judgment of the Court

Judgment delivered 14 October 1997

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APPLICATION FOR EXTENSION OF TIME TO SEEK LEAVE TO APPEAL AGAINST
SENTENCE REFUSED

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CATCHWORDS CRIMINAL LAW - Sentence - application for extension of time to

seek leave to appeal against sentence - unlawfully trafficking in heroin - sentence of 13 years imprisonment - whether counsel who appeared for applicant below put forward account of applicant’s drug dealing activities as instructed.

Counsel:	The applicant appeared on his own behalf. Mr D Meredith appeared on behalf of the respondent.
Solicitors:	The applicant appeared on his own behalf. Director of Public Prosecutions (Queensland) for the respondent.
Hearing date:	8 October 1997.
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 14 October 1997

The applicant, who appeared for himself in this Court, applies for an extension of time within which to seek leave to appeal against sentence. He was sentenced in the Supreme Court on 10 March 1997 to 13 years imprisonment on a charge of unlawfully trafficking in heroin and on other, related charges. An application for leave to appeal against sentence was filed in this Court on 8 September 1997, about 5 months after the date of sentence. By way of explanation for the delay, the applicant has informed us that he signed a proper form of application at the Arthur Gorrie Correctional Centre on 27 March 1997 and gave it to a barrister ("Alan Barrett, or something"), but that this document was never filed. In the outline of argument which was prepared by or on behalf of the applicant, it is said that an "Application for an Appeal was lodged at Arthur Gorrie Correctional Centre within the time frame and apparently lost in the Jail System". This appears to be a slightly different explanation from that given before us; however, the point is of no great consequence, since as it appears to us that an extension of time should, despite the long delay, be granted if the application for leave to appeal against sentence appears to have some real prospect of success.

The applicant asserts in effect that an account of his drug dealing activities which he gave to a barrister who appeared for him below was not put before the sentencing judge. We have examined the transcript of the proceedings before the primary judge, from which it appears that Mr Glynn S.C. was counsel for the applicant there. It seems evident that Mr Glynn had detailed instructions with respect to the applicant’s background and history and the way in which he became involved in drug dealing. As to the latter point, Mr Glynn said:

"His involvement in drugs commenced in this way, Your Honour: as a result of the back injury he suffered in 1983 he has had a great deal of ongoing pain. He has had treatment with traction and physiotherapy, but none of it seems to work in terms of pain relief. He started out using prescribed drugs for pain but they didn’t seem to have a great deal of effect. He then started smoking cannabis. This worked for some time, but then seemed to be less effective than it originally was. He then started using heavier drugs mixed with the marijuana. He was smoking and not using them intravenously, and he found that that gave him the best relief.

That wasn’t the only reason that he was using the drugs at this time. He says that he was angry and depressed about the debacle with his business interests in Romania, because he considered he lost a major opportunity, and also that he felt that he was under pressure in his home life. So, it was both for that sort of relief - of pain relief that he was using this mixture. I should say, it’s not suggested he was addicted to the drugs. I don’t make that claim, and he doesn’t make it. He was using drugs, including heroin, for pain relief.

Your Honour, the basis, he instructs me, on which he was involved in this was that he wasn’t getting a great deal of money out of it but he was certainly getting heroin for his own use."

The facts as explained to us by the applicant in this Court accorded in substance with those set out in the passage we have quoted; but the applicant’s case is that, in addition, counsel should have told the judge that the applicant was "set up", by which he meant that he (being otherwise not a drug dealer) was induced to sell drugs to an undercover police operative because she was a woman to whom he was attracted; he claims to have been given the story that she had some particular need to make some money and says it was with this motive ("I wanted to help her out") that he engaged in the transactions the subject of the charges. He emphasised that he did not take part in other transactions of a similar kind to those engaged in with the undercover police officer.

In the Court below, the prosecutor gave an account of the applicant’s activities which was not there contradicted. According to the prosecutor the covert operative engaged in seven transactions in high grade heroin with the applicant, the total powder content being over 100 grams and of that total over 50 grams was heroin; the purity varied from 43% to 73%. The prosecutor said that the applicant told the police operative that he was not a heroin addict; that "it appeared from his dealings with the operative that he was close to suppliers"; it was not necessary for the operative to ring him on the day when she needed the heroin; that on the first occasion only .32 grams was supplied, with a high heroin content, as a sample; that the operative was told by the applicant that he was "in business"; that the applicant appeared very cautious about who he dealt with and followed the operative on one occasion to ensure that she was someone he could trust; that he told the operative when asked how much he made "out of it", that he "makes quite a bit".

The applicant supplied the undercover operative on three occasions with 7 grams of the power, being paid $2,500 each time, and on two further occasions with 14 grams for $5,000 each. He told the operative, in effect, that 7 grams was the minimum he would sell. On the last occasion, when he was apprehended, he had arranged to supply "2 ounces" of heroin, being 55.032 grams of powder, containing 27.308 grams of heroin. The price was to be $20,000, but he was arrested before this transaction could be completed.

As has been remarked on a number of occasions, accusations of defective work on the part of legal representatives, before the primary judge, have become relatively common in criminal cases in this Court. On the information placed before the primary judge, there would seem to be no real prospect of success in challenging the sentence imposed. The applicant is a middle-aged man and although he has a relatively minor criminal history, the Court was entitled to treat the facts before it as indicative of wholesale commercial dealing in a substantial way; that remark particularly applies to the last, incomplete transaction. The applicant’s counsel below suggested that the sentencing range was 10 to 12 years. The recent authorities supported the sentence the judge imposed. In our opinion it is by no means in every case that an application based, substantially, on an assertion that the proper facts were not put before the sentencing judge by counsel, will be treated by this Court as raising an issue which it must investigate; the present does not appear to us to be a case in which the matters placed before us by the applicant warrant the grant of the relief which he seeks.

We would refuse the application.