R v Rose

[1993] QCA 138

IN THE COURT OF APPEAL [1993] QCA 138

SUPREME COURT OF QUEENSLAND

C.A. No. 335 of 1992

Brisbane

[The Queen v. Rose]

T H E Q U E E N

- v -

MICHAEL STANLEY ROSE

(Applicant)

THE CHIEF JUSTICE
DAVIES J.A.

PINCUS J.A.

Judgment delivered 05/05/1993
REASONS FOR JUDGMENT - THE COURT

THE REDUCED SENTENCE OF 3 YEARS IMPRISONMENT MENTIONED IN THE COURT ORDER OF 19 APRIL, 1993 IS TO TAKE EFFECT FROM THE EXPIRATION OF THE APPELLANT'S DEPRIVATION OF LIBERTY IN RESPECT OF THE SENTENCE OF 18 MONTHS' IMPRISONMENT IMPOSED ON 20 MARCH, 1992 WHICH THE APPELLANT WAS SERVING WHEN SENTENCED ON 6 NOVEMBER, 1992.

CATCHWORDS:	Unlawful trafficking in heroin - sentence - whether manifestly excessive - whether offences committed under duress
Counsel:	P. Rutledge for the Crown Applicant self-represented
Solicitors:	Director of Prosecutions for the Crown
Hearing Date(s):	2  February 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 335 of 1992

Brisbane

Before The Chief Justice Mr Justice Davies Mr Justice Pincus

[The Queen v. Rose]

T H E Q U E E N
v.
MICHAEL STANLEY ROSE

(Applicant)

JUDGMENT OF THE COURT

Judgment delivered 19/04/1993

This applicant for leave to appeal against sentence was convicted of a number of drug offences on 6 November 1992, in the Supreme Court. He appeared for himself on the application and his principal point was that the facts of his case were rather more favourable to him than the judge was given to believe. To some extent the applicant, without objection from the Crown, was allowed to give a more detailed account of the circumstances attending his offences than was stated on his behalf below.

The counts on which the applicant were convicted were eight in number. Of those, three were counts of unlawfully having in possession a dangerous drug, one of having in possession money obtained from the commission of a drug offence, one of having in possession various chattels used in connection with a drug offence, one of unlawfully producing a dangerous drug (heroin) and one of unlawfully supplying heroin.

The eighth count was that which attracted the penalty now complained of by the applicant. It was a count of trafficking in heroin and in respect of that the sentence was 4½ years imprisonment. The other sentences were concurrent and were all two years or less.

Although the eighth count alleged trafficking between 30 January 1991 and 15 January 1992, it appears that the earlier date was an error, because the applicant was in prison until 14 May 1991. He had been convicted in 1989 in Lismore District Court on a charge of supplying a prohibited drug, namely heroin, and sentenced to six years imprisonment. It is said that his release on 14 May 1991 came about because he was then granted parole. A condition of that was that he report to the Biala Drug and Alcohol Clinic and it was apparently during attendance at that clinic that he came in contact with people who supplied him with heroin. He incurred a substantial debt for the heroin he purchased; his counsel said below that he was unable to resist the temptation placed before him by the people he met while attending at the clinic.

The applicant said, and there seems no reason to doubt, that he was arrested in August 1991 and charged with unlawful use of a motor vehicle and with receiving. He said that the car which he was driving when arrested was "full of stolen goods" and that he was picking up and delivering the goods for the people to whom he owed money, under pressure from them. In relation to those offences, the applicant was sentenced to 18 months imprisonment on 20 March 1992. That sentence was not included in the documented criminal history which was placed before the primary judge, but his Honour was made aware, in outline, of the circumstances which related to it.

Counsel for the applicant told the judge below that in November 1991, three men wearing masks and armed with iron bars forced their way into the applicant's home and assaulted him, which resulted in hospitalisation; that was not disputed and is mentioned in the remarks his Honour made. It appears that on another occasion the applicant was subjected to violence by people in the same group who desired him to co-operate in the production and selling of drugs; again, that was not disputed and is mentioned in the reasons given on sentence. There were marks found by the police in the soles of the applicant's feet evidencing his having been wounded there and a burn mark in the region of his groin described as being the size of a 50 cent piece.

The judge sentenced the applicant on the basis that he was satisfied that the offences in question were committed under duress and that appears to us to be the principal point in the application. What the applicant did was to participate in a drug business, his participation including helping to manufacture and sell what was described as "home bake" heroin. It is apparent that the judge's sentence did not attribute the applicant's trafficking offence wholly to duress; his Honour must have taken the view that a desire to discharge the heroin debt played a part in the applicant's co-operation with those who assaulted him.

The applicant complained, as we have said, that the judge did not appear to have been given an accurate appreciation of all the circumstances, but the points that he raised in that connection do not appear to us to be of decisive significance. The applicant told us, in effect, that he was subjected to duress on two separate occasions, having moved house after the first occasion in an unsuccessful attempt to evade those who were bent on tormenting him. It is true that the judge does not appear to have had his attention directed to the full details of that point, but he accepted that the offences were committed under duress, as we have said. Then, the applicant said that he had given the police some assistance and that this was not mentioned to the judge. However, the matter seems to have been placed before the judge on the basis that the applicant co- operated very fully.

We have been referred to a number of decisions said to be comparable, but none of them deals with the special problem of an offence committed under duress. Plainly, the person who succumbs to the temptation of participating in a heroin business simply to make money is more culpable than one who does so induced at least in part by physical duress, such as the forms of violence to which the applicant was subjected. On the other hand, the judge was obliged to sentence on the basis that no defence under s.31 of the Code was available.

It is necessary to say more of the applicant's present position with respect to imprisonment. Only two years of the six year sentence of imprisonment imposed in New South Wales in 1989 has been served; it is said that as a result of remissions allowed, the applicant has only 10 months and 22 days left to serve from that sentence. Then there is the sentence imposed on 20 March 1992, mentioned above, in respect of unlawful use of a motor vehicle and receiving; if one adds that to the four years and six months the subject of the present application, the result is six years. The applicant suggests that the offences attracting these two sentences - the 18 months and the four years and six months - all arose out of the same circumstances, namely the applicant's harassment by persons to whom he was indebted for the supply of heroin; it appears to us that that contention has some substance.

We have been informed and accept that the applicant's New South Wales parole has been revoked and a warrant has been issued for his arrest for breach of parole. Further, it is said that the New South Wales authorities do not intend to apply to have the applicant transferred or extradited to New South Wales;

but he would be liable to arrest if he returned to New South

Wales, in respect of his breach of parole.

Thus, the recent Queensland offences have subjected the applicant to a risk that he will be required to serve further imprisonment in that State; however, we do not think that possibility can operate in the applicant's favour in the present proceedings.

Accepting, as the primary judge did, that there was duress, apparently of a substantial kind, and accepting as the Crown said that the amount of "home bake" manufactured was substantial - about $20,000 worth - we are inclined to think, with respect, that the sentence of four years and six months was excessive. It was cumulative upon the sentence of 18 months relating to other offences which should be regarded as part of the same group. We do not think that the reduction which the judge made on account of the element of duress, whose existence was not contested by the Crown, was sufficient. The application for leave to appeal against sentence will be granted in respect of the eighth count of trafficking and the sentence on that count will be reduced to three years imprisonment.