R v Loubie

[2000] QCA 317

SUPREME COURT OF QUEENSLAND

CITATION:

R v Loubie [2000] QCA 317

PARTIES:

R
v
LOUBIE, Bachir
(applicant)

FILE NO:

CA No 91 of 2000
SC No 244 of 1985

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 August 2000

DELIVERED AT:

Brisbane

HEARING DATE:

3 August 2000

JUDGES:

Davies and Pincus JJA, Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED – GENERALLY - whether sentence manifestly excessive - whether insufficient weight given to cooperation with police - information provided in course of attempt to corrupt officers – whether such cooperation sufficient to warrant reduction in sentence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND TRIAL - APPEAL AGAINST SENTENCE – GROUNDS FOR INTEFERENCE – DISPARITY - CO-OFFENDERS -  whether parity of applicant’s sentence with co-offender’s sentence.

Criminal Code (Qld), s 121
Health Act 1937 – 1982 (Qld), s 130

R v Hussein, Gardiner & Murphy CA No 304 of 1983, 28 February 1984, considered

COUNSEL:

A W Moynihan for the applicant
M J Byrne QC for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Department of Public Prosecutions (Queensland) for the respondent

1. DAVIES JA:  I agree that the application should be refused generally for the reasons given by Chesterman J.

1. PINCUS JA:  I have read the reasons of Chesterman J and agree, in substance, with them.  I also agree that this application should be refused.

1. CHESTERMAN J:  On 13 March last the applicant pleaded guilty to a charge brought under the Health Act 1937 – 1982, that he had in his possession a dangerous drug, namely heroin, for the purpose of sale, and to another charge pursuant to s 121 of the Criminal Code of corruptly offering a police officer a sum of money and a quantity of jewellery in order to obtain protection from prosecution.  He was sentenced on the first count to a term of imprisonment of seven years and on the second count for a term of three years.  The sentences were concurrent and a declaration was made that 382 days of pre-sentence custody were to be taken as time served under the first sentence.

1. The offences are very old.  They were committed in March 1985.  The delay in prosecution is explained by the fact that when released on bail the applicant fled to Lebanon where he remained for 15 years.  In August 1999 he surrendered to officers of the Australian Embassy in Beirut and voluntarily returned to Australia. 

1. The circumstances of the offence were that the applicant acquired five packets of heroin weighing a total of 138.14 grams. The weight of pure drug was 31.6 grams.  The applicant was engaged in a commercial enterprise.  He  bought the heroin in Sydney on credit for $25,000.00 intending to sell it in Brisbane for a personal profit of between $5,000.00 and $7,500.00.  His supplier was to be paid from the proceeds of the sales in Queensland. 

1. The applicant bought three airline tickets, all in false names, and travelled to Brisbane with two co-offenders one of whom, a woman, actually carried the drug.

1. All three were apprehended by police after they left the airport.  The applicant’s accomplices made full admissions of their involvement in the intended sale of the heroin. The applicant denied any knowledge of the offence.  However when subsequently he was provided with the evidence from his co-offenders he admitted his complicity in the offence but offered the investigating police officer $10,000.00 in cash plus the jewellery he was wearing as an inducement to the officer to help him avoid punishment.  The jewellery was worth about $11,000.00. 

1. The applicant was 40 years of age at the time of the offence and was 55 when sentenced.  He had a criminal history for crimes of dishonesty which appear not to have been of great seriousness, but more significantly a conviction for supplying cannabis in 1979 for which he was sentenced to three years imprisonment. 

1. One co-offender, Kodat, was sentenced to 4½ years imprisonment in addition to four months he had spent in pre-trial custody.  His sentence was predicated upon his being involved in the distribution of the drug though he was not the instigator of the enterprise.  He claimed he expected to receive only $500.00 for his part though the applicant asserts that his share was to be $2,000.00.  The courier was a young woman with a troubled background who became addicted to heroin and turned to prostitution to finance her addiction.  For her role she was to receive a small amount of heroin for personal use.  She was not to be involved in the sale of the drug.  Having served seven months in pre-trial custody she was ordered to serve three years probation, apparently on the basis that her prospects of rehabilitation were substantial. 

1. The Chief Justice, when passing sentence, referred to a decision of the Court of Criminal Appeal in 1984, Hussein in which a sentence of eight years imposed on a conviction for an identical offence was not disturbed. Hussein had bought a substantial amount of heroin when travelling in Afghanistan and brought it in to Australia intending to sell it and apply the proceeds to benefit his family.  The weight of pure heroin was 55.76 grams which was thought to have a street value of about $120,000.00. 

1. In passing sentence on the applicant his Honour noted:

·    That the applicant was the prime mover in a commercial enterprise in which the applicant obtained a substantial quantity of pure heroin with a view to selling it for a profit.

·    That when apprehended the applicant sought to bribe police officers to avoid imprisonment.

·    That the applicant breached his bail obligations and fled to Lebanon thereby avoiding punishment for fifteen years. 

In imposing a sentence of seven years imprisonment the Chief Justice remarked that it made sufficient allowance for the pleas of guilty and the applicant’s voluntary surrender to authorities and cooperative return to Australia to face prosecution.  His Honour could not see “any special feature about the case which . . . warrants any more lenient treatment . . .”.  But for the circumstances just mentioned it is apparent the applicant would have been sentenced to a term of eight years.

1. In his written outline the applicant submits that the sentence gives insufficient weight to:

·    His voluntary return to Australia.

·    His plea of guilty saving a costly and difficult prosecution given the lapse of time since the commission of the offence.

·    That he has not re-offended since 1985 thereby demonstrating a degree of rehabilitation and a reduction in the need for personal deterrence.

·    That the offence was an isolated act with the applicant intending to profit to the extent only of $5,000.00 from one transaction.

·    That the applicant cooperated with authorities by supplying the names of his supplier and the intended purchasers in Brisbane.

1. The applicant’s submission is that “the head sentence of seven years is at the top end of the range for an isolated act of possession for supply . . . and that the matters in mitigation . . . should have been reflected with a recommendation for parole after 2 or 2½ years.”

1. Acceptance of the submission would deprive the applicant’s sentence of any parity with that imposed on Kodat. The sentence coupled with the recommendation contended for would make the applicant’s sentence comparable with one of about five years imprisonment, the same as that imposed on Kodat whose involvement in, and responsibility for, the offence was much less than the applicant’s.  The need to maintain parity with that sentence was, rightly with respect, an important factor in the exercise of the sentencing discretion.

1. More generally the application can succeed only if it is demonstrated that the sentence is manifestly excessive, that is that it is wholly disproportionate to the criminality of the offence and the circumstances of the offender.  It is not enough to demonstrate that a sentence is at “the top end of the range”.  What must be demonstrated is that the sentence complained about is discernibly beyond the acceptable range.  In conceding, in my view quite properly, that the sentence of seven years is within the range it becomes difficult for a submission that the sentence is manifestly excessive to succeed.  The submission can only be accepted if the discretion whether or not to make a recommendation for early parole has miscarried.  But that direction is a broad one and therefore not readily susceptible to appellate review though some circumstances may make such interference appropriate.  The sentence did take into account the circumstances of mitigation relied upon by the applicant, or at least those which are relevant, by  reducing the sentence from eight years to seven.

1. In oral argument a different aspect was urged on behalf of the applicant.  It was submitted that (a) he had provided helpful information to the police about the source from which he obtained the heroin;  (b) the provision of such information is extremely rare amongst those charged with supplying dangerous drugs;  (c) the applicant’s cooperation should have been rewarded by a substantial reduction in sentence. 

1. It is no doubt right that substantial cooperation with investigative and law enforcement authorities by prisoners will normally work in their favour by a discernible discount in sentence.  Because the point had not been addressed in the written submissions and because it was not clear from the record what cooperation the applicant had actually afforded, the application was adjourned to allow counsel to provide further information. 

The court has now received an additional outline of argument from the Crown to which are annexed statements taken by the investigating police officers from the applicant and his co-offender, Kodat.  The statements, and the additional outline, have been perused by counsel for the applicant who accepts the correctness of the outline and addresses no further submissions to the court. 

1. From the statements it appears that Kodat was a menial employee in a gambling club owned and run by the applicant at Punchbowl in Sydney.  He accompanied the applicant principally, it seemed, to deflect attention away from the applicant on the journey to Brisbane.  As I have mentioned the female accomplice, whose personal position was desperate, was procured to be the actual carrier of the drugs.  Kodat had an acquaintance in Brisbane who knew the whereabouts of a heroin dealer with whom the applicant had transacted business in Sydney.  Kodat was to bring the applicant into contact with his acquaintance but take no further part in the distribution of the drug.

1. As I mentioned earlier the applicant when interviewed persistently denied that the heroin was his or that he was to be involved in its intended sale.  A typed record had been made of the interview between police and the female accomplice who had signed the document as correct.  The applicant was given this to read and an account of the interview between Kodat and police was read to him.  Upon absorbing this information the applicant said to the investigating officers:

“Look what can I do.  The drug is mine.  I got five kids.  Can we do something.  I can get money.  I ring my nephew in Sydney.  He will get $10,000.00 on his house.  I give it to you.  Maybe I can get some of the drug back, soon as I sell it I give you the money.  Please can I go.  What about my 5 kids.”

1. He admitted buying the heroin on credit and that he had agreed to pay $5,000.00 for each of the five parcels.  When asked how he got the heroin he gave the name of the man who had supplied it.  The applicant said the man could be found at his club in Punchbowl.   He told police that there was an ounce of heroin in each packet and that he intended to sell each packet for $6,500.00.  He continued

“If I can get the drug  back, or a little bit of it, three or four ounces, I get the money and bring it straight back to you.  We have to have trust.  You trust me I get the money straight to you.  My nephew he can get $10,000.00.  I don’t want to go to jail.”

When the police officers informed the applicant that they could not help him and that he would be charged the applicant replied

“I not saying anything.  What you think.  What can I do.  No not talking any more.  Not saying any more.  How much you want.  Please I don’t want to go to jail.”

1. There is no material which indicates whether the applicant incurred any risk to life or property by revealing the name of his supplier, nor is there now any way of knowing whether that information was useful to the police.  It is not known if the person named by the applicant actually existed, or if he was apprehended. It is apparent from the passages I have quoted, and the others I have summarised, that the applicant gave the information in the course of a conversation the purpose of which was to corrupt police officers in order to avoid punishment. 

This is not the sort of conduct which courts will encourage, or reward, by a reduction in sentence. 

1. It should be noted that the submission, made at the time of sentence by the applicant’s counsel and repeated in the outline, that he ‘disclosed the identity of the persons to whom he believed the heroin was to be sold in Brisbane’ does not find any support in the statements.

1. In my opinion it cannot be said that the Chief Justice erred in not reducing the sentence to take account of the applicant’s cooperation.  The information he provided has not been shown to be of sufficient worth or to have been given in such circumstances as would justify any reduction. 

1. I would refuse the application.