R v Lazarevic

[1997] QCA 78

[1997] QCA 078

COURT OF APPEAL

MACROSSAN CJ FITZGERALD P BYRNE J

CA No 5 of 1997
THE QUEEN
v.

ELIZABETH ANNE LAZAREVIC

BRISBANE
..DATE 24/02/97
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THE CHIEF JUSTICE: Time has already been extended in this
matter due to a technical failure to lodge within time and the
question now is what should be done with the merits of the
application.
The applicant was dealt with on 5 December 1996 for two matters.
One was breach of a suspended sentence and the other was supply
of a dangerous drug namely heroin. The original offences had
occurred in January of 1994 when the applicant had been dealt
with for four cases of supply. She was then sentenced to
imprisonment for 18 months but wholly suspended for a period.

It is indicated in the material that four days had already been

served.

Then the further matters that were dealt with in December last year were an additional matter of supply in respect of which the sentencing Judge ordered that she be sentenced to a term of 18 months imprisonment and added a recommendation that the applicant should be eligible for release on parole after serving six months. The suspended sentence on being activated was ordered to be wholly served.

The Judge, in sentencing, offered the view that since the subsequent instance of supply that he was concerned with had been dealt with by him by the imposition of a cumulative sentence the total effect would be that the applicant was being sentenced to a term of three years and that she was eligible for parole after she had served a term of 18 months in effect of the combined sentences.

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It is agreed before us that the effect of the Judge's order was
that she would be eligible for parole after she had served 15
months of her sentence.

The circumstances of the original supply for which the suspended sentence was imposed need not be considered at any particular length. There were two cases where the applicant was principal in the matter of supply and two more where she had been present as a party. The total amount supplied was point 284 grams which was sold for $1,200. On the second occasion the offences committed in May of 1996 for which she was dealt with in December last year were cases where the applicant had been present.

She was involved in reasonably protracted arrangements for supply. It was a police agent in fact posing as a heroin buyer who entered into negotiations with the applicant and eventually the arrangement was put into execution with the applicant taking the police agent - although she was unaware of that fact, of course - to the actual supplier who then handed over in exchange for $800 a total amount of heroin judged in pure form of point 446 grams. The suggestion was that the applicant for this activity and involvement received only a small amount of heroin to feed her addiction. She admitted her involvement when later interviewed by the police.

The difficulty in the way of the application is that the applicant when she was guilty to this conduct had been sentenced to a term of imprisonment for 18 months which was wholly suspended. Notwithstanding that earlier order she was guilty of 240297 T12/SJ3 M/T COA24/97

this behaviour.

Her personal circumstances are such as to attract some sympathy.
She is HIV positive. She received only a modest reward for her

part in the activity. She did not receive money but received a

small amount of heroin and she was in fact an addict.

The application is put to us on the basis that the total effect of the first term and the cumulative terms, namely three years, was excessive judged from the point of view of the totality principle. On behalf of the applicant it is urged that the total should have been no more than two years and that there should be parole eligibility after 12 months rather than the 15 months which it is agreed will apply under the orders with which we are concerned.

In my opinion, looking at the repeated criminal conduct that is involved in the second sentence it is not possible to come to the conclusion that the sentences imposed by the Judge below were manifestly excessive and it can be added that this view is open having regard to penalties imposed in other matters to which our attention was drawn. In my opinion the application should be refused.

THE PRESIDENT: I agree.

BYRNE J: I agree.

THE CHIEF JUSTICE: The application is refused.
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