R v Matasaru - [2000] QCA 246

[2000] QCA 246

COURT OF APPEAL

PINCUS JA
DAVIES JA
THOMAS JA

CA No 24 of 2000

THE QUEEN

CONSTANTINE MATASARU Applicant

BRISBANE

..DATE 19/06/2000

JUDGMENT

DAVIES JA: The applicant was convicted in the Supreme Court on his own plea of guilty on 5 January this year of the following offences; trafficking heroin, 10 counts of supply of heroin, possession of heroin with a circumstance of aggravation, possession of property in connection with the sale of heroin and fraud against the Commonwealth. The most serious of these offences was the trafficking offence and all others were related to it. The offences of supply constituted the trafficking.

On 21 January the applicant was sentenced to 12 years imprisonment on the trafficking count, six years imprisonment on the offence of possession of heroin and
12 months imprisonment for possession of property used in connection with its sale. No further penalty was imposed in respect of the other offences and all sentences were ordered to be served concurrently.

The applicant is 47 years of age having been born on
25 October 1952. He has no relevant prior convictions. The applicant became a heroin user after suffering a back injury at work in 1986 which caused him persistent and quite severe pain for which he found prescribed medication inadequate. However, he was able to overcome his heroin addiction but continued to sell heroin after that and these offences occurred after that.

His trafficking was, as the learned sentencing Judge found, for money only, although it was said on his behalf that it was to pay off debts to suppliers whom he feared might harm him or members of his family if he did not pay.

The supplies which constituted the trafficking were to an undercover police officer who told him that she was buying not for her own consumption but to sell on at a profit. Some of the sales were of substantial quantity, the largest being for 28 grams of powder containing 16 grams of heroin, that is having a purity of 58 per cent, for which he was paid $9,000. That was on 7 April 1997. In all the total weight supplied constituted over 49 grams of pure heroin for which the total payment was $28,000. It was plain that the applicant supplied to others.

When the police raided the applicant's house they found there 241 grams of powder containing 149 grams of pure heroin having an average purity of 64 and a half per cent. They also found cash of $22,000 in the house and $1,000 on the applicant's person.

It is plain from all this that the applicant was at the relevant time a substantial dealer in heroin, not wholly or even partly to sustain a heroin habit, but solely for profit. There was very little that could be said on the applicant's behalf and Mr Glynn did not attempt to say much in that respect.

The main points relied on his behalf were apparently his need to pay…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Matasaru

Details

AGLC: R v Matasaru [2000] QCA 246
Case: [2000] QCA 246
Decision Date: 19/06/2000

CaseChat Overview and Summary

In the matter of the Queen versus Constantine Matasaru, the Court of Appeal heard an application by the applicant challenging the sentence imposed on him by the Supreme Court. The applicant was convicted on his own plea of guilty of trafficking heroin, 10 counts of supply of heroin, possession of heroin with a circumstance of aggravation, possession of property in connection with the sale of heroin, and fraud against the Commonwealth. The applicant was sentenced to 12 years imprisonment on the trafficking count, six years imprisonment on the offence of possession of heroin, and 12 months imprisonment for possession of property used in connection with its sale, with all sentences ordered to be served concurrently.

The applicant argued that the sentence imposed by the Supreme Court was manifestly excessive, and he submitted that a sentence of 10 years imprisonment should have been imposed instead. The applicant relied on a number of cases to support his submission, including Nguyen, Lam, and Ianculescu. However, the Court of Appeal found that the cases relied upon by the applicant were distinguishable on their facts and did not support the applicant's submission that the sentence imposed was manifestly excessive. The Court of Appeal found that the sentence imposed was within the range of an appropriate sentencing discretion and was supported by a number of other cases, including Tran and Buciuman and Dobrovolski.

The Court of Appeal refused the application, finding that the sentence imposed by the Supreme Court was not manifestly excessive. Pincus JA and Thomas JA both agreed with the majority judgment of Davies JA. The application was dismissed, and the sentence imposed by the Supreme Court was upheld.

Orders