R v Ross

[1995] QCA 134

IN THE COURT OF APPEAL	[1995] QCA 134
SUPREME COURT OF QUEENSLAND

C.A. No. 24 of 1995.

Brisbane

[R v. Ross]

T H E Q U E E N

v.

KENNETH LANCE ROSS

(Applicant)

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Macrossan C.J.
Pincus J.A.

White J.

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Judgment delivered 07/04/1995

Judgment of the Court

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED

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CATCHWORDS:	CRIMINAL LAW - sentence - supplying drugs - no criminal history - no assistance to police in identifying other offenders - whether trial judge sentenced on basis that commercial dealer - psychiatric report - relevance of drug addiction - exposure to drugs in custody - deterrence.
Thompson (C.A. 16/11/94); Phillips (C.A. 25/10/93); Trotter (C.A. 3/11/93)
Counsel:	Mr A Donaldson for the applicant. Mr T Winn for the respondent.
Solicitors:	Robert Burns & Associates for the applicant. Director of Prosecutions for the respondent.
Hearing date:	15 March 1995.
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 07/04/1995

This is an application for leave to appeal against sentence in a drug case. The applicant was sentenced to 3 years imprisonment with a recommendation for eligibility for parole after 8 months, having been convicted, on pleas of guilty, of five counts of supplying heroin and two of supplying methylamphetamine. The offences were committed between June and December 1993. The drugs were supplied to undercover agents. A sum of $1,150 in total was paid for the drugs.

There is no suggestion that the applicant gave any assistance to the police by way of enabling identification of those from whom he bought heroin. We mention this merely because emphasis is sometimes laid upon the offender's co-operation with the police as giving rise to a claim for special leniency. The decision of this Court in Thompson (unreported, 16 November 1994) illustrates that great consideration may be given by the Court to those who give substantial assistance in identifying other offenders. Had the present applicant given assistance of that kind we would have been in favour of a non-custodial sentence; the applicant had no criminal history of any consequence.

Two aspects of the present application merit special attention. One is that the applicant has a rather favourable report from a psychiatrist with extensive experience in this area of work, and the other is the question of the extent to which the applicant's involvement in the drug trade was of a commercial character.

As to the first matter, the report gives rather a confused account of the applicant's drug history. He is 37 years of age, according to the report itself, according to the information placed before the trial judge and according to the applicant's outline of argument; yet the doctor says in effect that the applicant was injured in a motor cycle accident in 1986 when aged about 19, that he used heroin for his pain caused by the injury, then underwent a methadone program until 1991, became drug-free and remained "clean" for 5 years from age 26.

In 1986 when the accident supposedly occurred, the applicant was, it appears, not 19 years of age, but 29 years of age; if there was a motor cycle accident when the applicant was about 19 then it took place about 1976, not 1986. And the applicant turned 26 in 1983, not about 1990. The result of this difficulty about dates is that there seems to be a substantial gap in the history. If the applicant's drug usage started at about age 19, then there is a period of about 18 years to account for, and the various periods on and off drugs referred to in the report do not appear to amount to so much.

The deficiencies we have referred to, although not enhancing confidence in the general accuracy of the story told, do not prevent one from deducing a general picture of a long-term heroin user who has had some drug-free periods, but who has tended to succumb to temptation again when there is an injury available, as a reason or an excuse. It is important to note that according to the report the success achieved by undergoing a methadone program until the end of 1991 did not last long. It is true that the dates in the report are suspect, but presumably this fairly recent date would have been recalled accurately enough. It is also true that the applicant's case is or implies that the good effects of the methadone might have lasted longer, but for the unfortunate occurrence of a low back injury. One may be pardoned for harbouring a degree of scepticism; the "low back syndrome" is notoriously hard to assess medically, and there is the circumstance that while on worker's compensation for this condition the applicant was well enough to engage in drug trading.

The second important aspect focused on by counsel for the applicant is that the judge sentenced on the basis that there was a commercial element in the drug dealing. Part of what his Honour said on this subject is as follows:

"On [a particular] occasion you made some comment to the undercover officer to the effect that you were making money and that, in effect, beat working for a living, and you were making more money than working for a living. You do not deny saying that and I am not sentencing you for that but it is an indication that you were making something from the sales".

There seems to be nothing objectionable in this approach. There is no doubt that the applicant was making money from the drug sales and it is clear enough from the level of sentence that his Honour did not in fact sentence the applicant on the basis that he was characterised as simply a commercial dealer making a good living from the business.

To return to the doctor's report, the opinion there expressed is that the applicant has "a good prognosis ultimately of substance dependence behaviour problems with early seeking of treatments and good drug-free periods" and that his "ultimate prognosis is better than most". The doctor mentions the possibility of a further methadone program but it is desirable to recall that the good effect of the recent methadone program did not last long.

As the report indicates, and as is common knowledge, the continuation of the heroin trade is partially dependent upon the activities of addict dealers - people who are involved in the trade largely to obtain money for their own usage of heroin. It seems that the applicant dealt mainly in heroin. Circumstances may arise in which it is appropriate to deal very leniently with such people, and the case of Ringrose (Shepherdson J., 16 February 1994) was given to us as an example. Reference to the facts of that case, as set out in the sentencing remarks, shows that it is distinguishable in a number of respects from the present. But the authorities, and in particular the decisions of this Court to which we have been referred, by no means demonstrate that a policy has been adopted of routinely giving non-custodial sentences to small-scale heroin dealers who are engaged in the trade to finance their own habit. The effect of the argument advanced to us was that the primary judge erred in that he should have given a non-custodial sentence conditional upon the applicant obtaining treatment to cure his long-term addiction. The potential advantage of that course would have been that the applicant would perhaps have been less likely to be subjected to constant temptation; it is said that drug usage is very common inside our gaols. A disadvantage would have been the lack of adequate deterrence; if small scale dealing by those who can plead addiction goes substantially unpunished, then such dealing may be encouraged.

In our opinion, having regard to the decisions of this Court in cases such as Phillips (unreported, 25 October 1993) and Trotter (unreported, 3 November 1993), the sentence was within the scope of a proper exercise of the primary judge's sentencing discretion and the application should be refused.