R v O'Grady

[1996] QCA 552

[1996] QCA 552

COURT OF APPEAL
WILLIAMS J
AMBROSE J

BYRNE J

CA No 185 of 1996
THE QUEEN
v.

KEVIN O'GRADY

BRISBANE
..DATE 11/07/96
110796 D.1 T22-23/JJD/1 M/T COA156/96
BYRNE J: The applicant was almost 40 years old when, in June
1994, he was awarded 12 months probation for the possession of
amphetamines. During the probation period, from November 1994
until 17 March 1995, he carried on a business of unlawfully
trafficking in heroin.

He pleaded guilty to that offence and to eight related charges of possession of heroin. He was sentenced to 10 years imprisonment on the major charge and to three years imprisonment on each of the possession offences. The applicant contends that the sentence in respect of the trafficking charge was manifestly excessive.

In late February 1995, police commenced intensive surveillance of a post box at Yeppoon where the applicant often received parcels containing stuffed toy animals, like kangaroos and koalas.

Eight such parcels were received between 1 and 17 March. They contained heroin. The total quantity of powder was 4.896 grams.

The weight of pure heroin was 1.033 grams. This meant that the heroin had an average purity of about 21 per cent. The applicant's receipt of the parcels accounts for the possession charges.

Over about a four month period ending in mid-March 1995, the applicant deposited more than $100,000 into bank and TAB accounts maintained in the name of a man called "King".

110796 D.1 T22-23/JJD/1 M/T COA156/96
The applicant was not working in this period. He was then the
recipient of Social Security benefits. The money paid into
King's accounts was derived from the sale of a significant part
of the heroin that he had received, as the sentencing Judge
summarised the position.

It was not disputed that, assuming an average purity of about 21 per cent, either by ingestion or sale the applicant disposed of about between 55 and 75 grams of pure heroin in his illicit business.

The applicant was injured in a motor vehicle accident in August 1993. He was released from hospital in January 1994 after treatment for serious injuries.

The Judge was informed that the applicant continued to experience pain after discharge from hospital and was treated by general practitioners for symptoms. It was contended on his behalf that he resorted to heroin for pain relief. It was said that he distributed heroin to get heroin for personal consumption for pain relief.

Although his use of heroin may have been a response to pain, it was plainly the exercise of a deliberate choice, not the conduct of an addict.

These were not the applicant's first drug offences. Apart from the possession of amphetamines which led to the award of the year's probation, he had been dealt with for drug offences on six occasions.

110796 D.1 T22-23/JJD/1 M/T COA156/96
He had last been dealt with for drug offences in Tasmania in
1992, when he was sentenced to six months' imprisonment for
using a narcotic substance.

In view of the substantial quantity of heroin distributed, that the business operated over about four months, the prior convictions for serious drug offences, and that all the offences occurred during the subsistence of a probation order, plainly a substantial sentence was called for.

On 29 February, he was arraigned on the charges and pleaded not guilty. The case was then adjourned to 22 April for trial. His guilty pleas were notified on the morning of the trial. These pleas, though tardy, justified some recognition in a reduced head sentence, and it would seem from the sentence imposed that this was extended.

The question is whether in all the circumstances the sentences are manifestly excessive. In my opinion, consideration of cases such as the Queen v. Abdo, Court of Appeal Number 186 of 1991 and the Queen v. Hapeta, Court of Appeal Number 285 of 1990, indicates that they were not. I would refuse the application.

WILLIAMS J: I agree.

AMBROSE J: I agree. The only matter argued really, as I understood it, was that there ought to have been a recommendation for parole earlier than halfway through the sentence imposed. In my view, no basis existed or exists for making such a recommendation and I agree that the application 110796 D.1 T22-23/JJD/1 M/T COA156/96

would be refused.

WILLIAMS J: So leave is refused and the application is dismissed.

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