R v Puscas

[1994] QCA 265

IN THE COURT OF APPEAL [1994] QCA 265

SUPREME COURT OF QUEENSLAND	C.A. No. 81 of 1993
Brisbane [R. v. Puscas]

T H E Q U E E N

v.

NANA PUSCAS (Applicant)

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FITZGERALD P.
DAVIES J.A.
DERRINGTON J.

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J udgment delivered 15/07/1994

REASONS FOR JUDGMENT - THE COURT
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.
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CATCHWORDS:CRIMINAL LAW - SENTENCE - heroin trafficking - large quantities of high grade heroin - offences committed jointly with de facto - active participant in offence - high level in chain of distribution - guilty plea - 20 years' imprisonment with recommendation of eligibility for parole after 5 years - whether sentence within range of sound sentencing discretion

Counsel:Mr G. Long for the Applicant

Mr P. Rutledge for the Respondent

Solicitors:Legal Aid Office for the Applicant

Director of Prosecutions for the Respondent

Date(s) of Hearing:13 May 1994

R EASONS FOR JUDGMENT - THE COURT

Judgment delivered 15/07/1994

The applicant was convicted on her own plea of trafficking in heroin on 17 January 1994 and on 11 February 1994 was sentenced for that offence to 20 years' imprisonment with a recommendation that she be eligible for parole after serving five years of that term. She seeks leave to appeal against that sentence on the ground that it was manifestly excessive. The maximum penalty for the offences is 25 years' imprisonment.

The applicant is 40 years of age, having been born on 24 December 1953 and has no relevant criminal history. The offences which occurred between 1 January and 8 September 1992 were committed jointly with her de facto husband, Frank Onea. They were of a very serious kind. They involved trafficking over a period of about nine months in large quantities of high grade heroin. The applicant and Onea were found in possession of the following quantities of heroin:

on 7 July 1993, two bags of pure heroin weighing about 56g;
on 24 July 1993, a package of pure heroin weighing about 15g;
on 15 August 1993, eight pieces of rock heroin weighing 224g;
and
on 16 August 1993, two packages of heroin weighing 32.5g.
The total amount had a value at street level prices of over
$500,000.
The evidence disclosed sales to two wholesale customers and also
sales at street level. Heroin of the purity found in the
applicant's possession is apparently rarely encountered. The
amount and quality of it indicated that the applicant was very
high up in the distribution chain.

The applicant was not a drug user. She engaged in her criminal activities purely for profit which, having regard to the value of the heroin found in her possession, must have been substantial. The evidence indicated that her involvement in the crime was not either reluctant or secondary; she was an active participant in it.

There is no doubt that the applicant's crime called for a sentence towards the higher end of the permissible range. Up to the time when this sentence was imposed, no sentence higher than fifteen years' imprisonment had been given for offences of this kind since the removal of the mandatory life penalty.

A sentence of that term was imposed in Abdo, C.A. No. 186 of 1991, on 5 December 1991. That case involved several transactions of trafficking in a total of 319g of powder containing 50g of pure heroin for approximately $72,000. Abdo was sentenced on the basis that he was a wholesale dealer with access to bulk supplies. He was 36 years of age at the time of sentence. He had only two minor prior convictions though he was on bail pending trial for another offence when he committed these offences. Upon his conviction after a trial, he was sentenced to 15 years' imprisonment with a recommendation he be eligible for parole after serving six and a half years. An application for leave to appeal against that sentence was refused. The recommendation for eligibility for parole must have been given because of the applicant's relatively minor previous criminal record.

The offences in this case were substantially more serious than those in Abdo. Both the amount and purity of the heroin in this case was greater. The fact that Abdo was convicted after a trial, whereas the applicant in the present case pleaded guilty, may be ignored for present purposes because of the recommendation for eligibility for parole which the learned sentencing judge gave in the present case. There is no inconsistency between the sentence imposed in Abdo and that imposed here.

Scaunasu, C.A. No. 5 of 1993, and Onea, C.A. No. 11 of 1994, were both cases in which sentences of 12 years for trafficking were not disturbed on appeal. Neither offender had substantial prior convictions and both were lower in the distribution chain than Abdo and this applicant. Onea's sentence was imposed after a trial; Scaunasu pleaded guilty. No doubt in recognition of that plea there was a recommendation that he be eligible for parole after serving four years of his term. The sentences in each of these cases are consistent with that imposed in Abdo, and with that imposed here. Onea appears to have had, as his source of supply, the appellant and her co-offender.

Two other substantial sentences were referred to us: Hapeta, C.A. No. 283 of 1990, and El Husseini (1988) 2 Qd.R. 442. Each was an effective sentence of about 13½ years. However, as has been pointed out in other cases, it is difficult to analogise from these because they are re-sentences imposed after abolition of the mandatory life penalty and in cases of that kind courts have quite rightly taken into account the prospects of rehabilitation of the offender observable over the period spent in custody since the original sentence was imposed.

We were supplied at our request a schedule of sentences imposed in other States of Australia for similar offences in the recent past. There are undoubted difficulties in comparing those sentences with those imposed in this State. Different maximum penalties and particularly different sentencing and detention regimes make direct analogy impossible. Nevertheless after making adjustments for these factors and other less important factors such as slightly different ways in which the offences are stated and, of course, differences in circumstances, our impression is that the level of sentencing in those cases generally is not inconsistent with the term of imprisonment which was imposed in this case.

We therefore think that the sentence imposed in this case, although high, was within the range of a sound sentencing discretion. The appellant's plea of guilty and her previous good record were adequately taken into account by his Honour's recommendation that the applicant be eligible for parole after serving five years.

The application is therefore dismissed.