R v Rizk

[2004] QCA 382

SUPREME COURT OF QUEENSLAND

CITATION:	R v Rizk [2004] QCA 382
PARTIES:	R v RIZK, Keiyed Phillip (applicant)
FILE NO/S:	CA No 224 of 2004 SC No 206 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence application
ORIGINATING  COURT:	Supreme Court at Brisbane
DELIVERED ON:	15 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	29 September 2004
JUDGES:	McPherson JA, Jerrard JA and Jones J Judgment of the Court

ORDER:	1.	Application for leave to appeal and appeal allowed;
2.	Sentence imposed in the court below set aside;
3.	On count 1, trafficking in a dangerous drug, the applicant is sentenced to six years imprisonment;
4.	On count 2, the applicant is sentenced to one year imprisonment, to be served concurrently with the sentence imposed for count 1;
5.
It is recommended that the applicant be sentence.

CATCHWORDS:	CRIMINAL LAW – DRUG OFFENCES – SENTENCING – whether sentence imposed on applicant for trafficking in ecstasy (a schedule 2 drug) is manifestly excessive
R v Bradforth [2003] QCA 183 R v Raciti [2004] QCA 359
COUNSEL:	A J Glynn SC for the applicant S G Bain for the respondent
SOLICITORS:	Terry Fisher & Co for the applicant DPP (Qld) for the respondent

1. THE COURT: The applicant on 17 June 2004 pleaded guilty in the Supreme Court at Brisbane to one count of trafficking in a dangerous drug and one count of possessing a dangerous drug, with the circumstance of aggravation that the quantity of the drug was in excess of 2 grams. The drug in each count was MDMA, or ecstasy, which is a Schedule 2 drug. The consequence of this is that the maximum penalty for both of the counts the applicant pleaded guilty to was therefore 20 years imprisonment, as opposed to a maximum of 25 years imprisonment in the case of Schedule 1 drugs. The applicant was sentenced to a term of 8 years imprisonment, with a recommendation that he be considered for parole after 3 years. This is an application for leave to appeal against that sentence, on the ground it is manifestly excessive.

2. An investigation by the Australian Crime Commission uncovered evidence of a major wholesale drug operation of which the applicant was part. The applicant worked under his co-offender Raciti, and was involved in obtaining large quantities of ecstasy from numerous suppliers at Raciti’s direction and in distributing ecstasy to others below them in the chain of distribution. The applicant pleaded guilty to trafficking in ecstasy between the dates of 5 June 2002 to 26 August 2002, which is a period of between two and a half and three months. The evidence against the applicant consisted of telephone intercepts and surveillance by the police, and drugs found in his possession when the police apprehended him immediately before the end of the investigation. The first telephone conversation involving the applicant was on 6 June 2002, when the applicant contacted Raciti to discuss purchasing from him 1000 ecstasy pills at a price of $22 per tablet.

3. Raciti was…