R v Patena

[1996] QCA 152

IN THE COURT OF APPEAL	[1996] QCA 152
SUPREME COURT OF QUEENSLAND

C.A. No. 107 of 1996.

Brisbane

[R v. Patena]

T H E Q U E E N

v.

TIAHUIA ANGELENE PATENA

(Applicant)

___________________________________________________________________

Pincus J.A. Davies J.A. McPherson J.A.

___________________________________________________________________

Judgment delivered 28/05/1996

Joint Reasons for Judgment of Pincus J.A. and Davies J.A., separate concurring
Reasons for Judgment of McPherson J.A.

___________________________________________________________________

APPLICATION REFUSED.

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CATCHWORDS:	Unlawfully supplying dangerous drug - undercover police officer - benefit to self - duress - trafficking - supply - carrying on business.
Quaile [1988] 2 Qd.R. 103 Elhusseini [1988] 2 Qd.R. 442 Woods (C.A. No. 381 of 1994, 2 December 1994) Tho Le & Anor. (C.A. No. 291, 292 of 1995, 27 October 1995) Kleinschmidt (C.A. No. 363 of 1995, 5 October 1995) Trotter (C.A. No. 339 of 1993, 3 November 1993) Williams (C.A. No. 156 of 1994, 16 August 1994) Bo Vang Nguyen (C.A. No. 501 of 1995, 22 February 1996)
Counsel:	Mrs D J Richards for the applicant. Mr D Bullock for the respondent.
Solicitors:	Legal Aid Office for the applicant. Queensland Director of Public Prosecutions for the respondent.
Hearing date:	20 May 1996

JOINT REASONS FOR JUDGMENT OF PINCUS J.A. AND DAVIES J.A.

Judgment delivered 28/05/1996

This is an application for leave to appeal against sentence. The applicant was convicted, on pleas of guilty, of 8 counts of unlawfully supplying a dangerous drug, namely heroin. The first offence was committed on 27 January 1995 and the last on 5 April 1995. The judge sentenced the applicant to 5 years imprisonment with a recommendation for parole after 15 months. She is 29 years of age and has no previous convictions.

The total amount of heroin involved in the eight offences was just over 8 grams and the amount of money paid was a little over $10,000. The circumstances constituting each offence varied considerably, but the precise details do not matter much. It is enough to note that throughout the period of the offences the applicant appears to have had access to supplies of heroin; that on each occasion charged the heroin was obtained by an undercover police officer; that on some of these occasions the heroin was handed to the officer by the applicant and on other occasions handed to the officer by another person brought into contact with the officer by the applicant; and that the circumstances were such that the applicant did not appear to have obtained for herself part of the heroin purchased.

A question arises as to the benefit the applicant got from these transactions. There was evidence that in relation to one of the offences, that charged in count 5, the officer gave the applicant $50 for her trouble, but no other direct evidence from the prosecution to enable the Court to find what benefit the applicant obtained. That question is particularly relevant to certain of the offences in which the money the officer paid for heroin was paid not to the applicant, but to another person introduced to the officer by the applicant.

The applicant gave evidence before the primary judge to the effect that she committed all these offences without receiving any benefit herself. She said that the purpose of engaging in the transactions was to enable a man called Laine, with whom she had a relationship, to obtain heroin either for nothing or at a discount. She also said that Laine beat her severely on a number of occasions and that she was frightened of him.

It appears that the account which the applicant gave in evidence did not in all respects accord with that which her counsel had foreshadowed. Further, there was a report from a hospital in evidence, the content of which is hard to reconcile with the evidence she gave. But if, as she said, she committed these offences under physical duress that would necessarily be a mitigating factor.

The judge did not accept the reason the applicant gave for having committed the offences, that is, to avoid trouble with Laine.

The judge said he was satisfied that the applicant’s statements that she received no reward were not correct and that he was satisfied that the applicant was a heroin user. His Honour referred to the hospital report which we have mentioned. It asserted that the applicant had on several occasions, from April 1994 to July 1995, been seen in the emergency department because she had collapsed after intravenous heroin use, and that she had been followed up in outpatients in April 1994, November 1994 and March 1995, following these episodes. The judge mentioned that the accuracy of the report was challenged by the applicant in her evidence, and concluded his discussion of this aspect by saying, "I am satisfied that after the end of February 1995 you got no benefit in the sense that you benefited from helping your drug habit".

It appears that the judge left open the question whether after the end of February 1995 the applicant received any other benefit from the transactions. The third offence was committed on 25 February 1995. After discussing the reasons for his not accepting the story about Laine, his Honour remarked:

"I have come to the conclusion that I simply could not accept the truth of your evidence that you got no benefit out of these supplies. I am prepared to accept that for the first one or two you did get some benefit in the sense that you got some heroin for your use".

It is not quite clear whether the judge intended, by these remarks, to indicate that he was sentencing on the basis that the applicant obtained no benefit from the transactions except for the first one or two. It appears to us that the proper view is that the primary judge was unable to determine what it was that motivated the transactions other than the first one or two. As we have explained, his Honour would not accept that the offences were committed for Laine’s benefit and in fear of Laine. We should in our view take it that the applicant did not commit these offences out of the goodness of her heart, but for some practical benefit.

We have been referred to a number of decisions in which the facts are said to be comparable. Reference to those and other cases shows that even where the transactions proved are of about the same magnitude, offenders who plead guilty to trafficking usually receive significantly longer sentences than those who are charged with and plead guilty to supply. One would perhaps expect that commonly to be so, since the trafficking penalty for heroin is 25 years and that for supply ordinarily 20 years; we say "ordinarily" because for "aggravated supply" the penalty is 25 years.

It should be noted, however, that the offence commonly referred to as trafficking is in truth one of carrying on the business of trafficking; see s. 5 of the Drugs Misuse Act 1986 ("the Act"). The reference to carrying on business in the section was discussed in Quaile [1988] 2 Qd.R. 103. There, Macrossan J., as his Honour then was, pointed out that a single action, not repeated, can constitute a trafficking and a business can be said to be carried on from the point when the first transaction performed in the conduct of that business has occurred. That conclusion can only be drawn, his Honour said, if the transaction is intended to be repeated (114). In Elhusseini [1988] 2 Qd.R. 442, it was said that carrying on a business for the purposes of s. 5 of the Act implies a degree of continuity (445), that carrying on a business usually involves a series of activities (451) and that evidence of intention with respect to future transactions is particularly relevant where a single sale is relied on by the prosecution (454).

These cases, and indeed the simple proposition that even the largest business must have a beginning, show that the offence of trafficking may be proved even though there has been only a small number of dealings - even one dealing can be enough if it is intended to be the first transaction in what is expected to be a continuing activity. It should therefore not, in our view, be assumed that a collection of offences of unlawful supply under s. 6 will necessarily attract a penalty well below any trafficking offence.

Examples of consideration by this Court of sentences for the supply of heroin, in circumstances truly comparable with the present, are not easy to find. The applicant relied on Woods (C.A. No. 381 of 1994, 2 December 1994) (a trafficking case) where the sentence was 4 years with a recommendation for parole after 1 year; but as Thomas J. correctly pointed out in Tho Le & Anor. (C.A. No. 291, 292 of 1995, 27 October 1995), that must be seen as a special case. We were also referred to Kleinschmidt (C.A. No. 363 of 1995, 5 October 1995) where there were 10 counts of supplying heroin. The applicant had a criminal history and the sentence imposed, 4½ years, covered a number of offences other than those of supply. The application for leave to appeal was rejected; to our minds the sentence there imposed seems a light one. Trotter (C.A. No. 339 of 1993, 3 November 1993), a supply case where the sentence was 3 years and the Court of Appeal recommended consideration for parole after 1 year, appears to have turned on a question of disparity between sentences and on the fact that the applicant, who had been induced to renew a prior acquaintance with heroin by an offer from an undercover agent, had managed to rehabilitate himself by the time he was arrested. Williams (C.A. No. 156 of 1994, 16 August 1994) who had been sentenced to 4 years imprisonment for supplying heroin and some other offences, was given a recommendation for parole after 15 months, on appeal, on the basis of his being an addict who had offended only to feed his own habit and that of a co-accused, as well as because of a recent and apparently successful attempt to rehabilitate himself.

Recent trafficking sentences which we have noted, where the dealings involved were of comparable magnitude with the present, are Tho Le (C.A. No. 291 of 1995, 27 October 1995) referred to above, where there was an 8 year sentence with no parole recommendation, and the offender’s main purpose was to feed his own drug habit, as well as Ba Vang Nguyen (C.A. No. 501 of 1995, 22 February 1996), who received a 6 year sentence. The limited value of these cases derives from the fact that in each the offence admitted was carrying on a business of trafficking, leaving room for the inference that there were transactions other than those specifically proved: see in particular the reasons of the President in the latter case (p. 1). Nevertheless, they are of some assistance.

It is our opinion, formed in the light of the authorities, that the sentence of 5 years imprisonment is in the circumstances a substantial one, but not such as to be properly characterised as manifestly excessive; we would not, even disregarding the parole recommendation, be prepared to hold that the head sentence is beyond the scope of the proper exercise of sentencing discretion. The practical effect of the head sentence is likely to be substantially alleviated by the recommendation of consideration for parole after 15 months. We would dismiss the application.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 28th day of May 1996

My initial impression was that the head sentence of 5 years imposed in this instance might be too high even when coupled with a recommendation for parole after 15 months. Heroin addicts supplying to undercover police agents have in the past seldom attracted penalties of much more than three years imprisonment, particularly when the acts of supplying appeared to have been carried out essentially for the purpose of satisfying a person's own addiction and with little or no expectation of independent monetary gain. In cases of that kind, the number of offences commonly depends on accidents of timing and duration of the police operation, and so is determined by the moment at which the operation is brought to an end by arresting the offenders identified in that way.

Here, however, there were 8 counts of supplying during a period of little over two months involving a total of 8 grams of heroin and sums amounting to some $10,000 or more. The sentence bears some resemblance to that in Nardozzi (C.A. 33 of 1994), where the same judge imposed a penalty of 5 years imprisonment with a recommendation for parole after 18 months for possession of a block containing 6.077 grams of pure heroin. There, however, there was only one offence of heroin possession, although his Honour found that a commercial element was involved in its commission. In the present case, the learned judge rejected a contention that the applicant acted under duress. He accepted that she was herself a heroin user, although as Pincus and Davies JJ.A. have pointed out, the question whether that was the only benefit which the applicant derived from the eight transactions was left undetermined.

There was no affirmative finding here of a commercial element or profit motive in what the applicant did. Nevertheless, having regard to the number and frequency of the transactions and the amounts of heroin and money involved, it was, I consider, legitimate for the judge to conclude that the applicant merited a sentence beyond that commonly imposed in cases of the kind first mentioned in these reasons.

I agree that the application should be dismissed.