R v Tran

[1998] QCA 330

COURT OF APPEAL

[1998] QCA 330

McMURDO P
THOMAS JA
CULLINANE J

CA No 275 of 1998

THE QUEEN

v.

JAKE TRAN  Applicant

BRISBANE

..DATE 16/09/98

JUDGMENT

THOMAS JA: The applicant was convicted in the Supreme Court of one count of supply of a dangerous drug, namely heroin, and one count of possession of property obtained from trafficking and supplying. The property was $200 which was in his possession shortly after a drug transaction had been conducted. He was sentenced to six months imprisonment and two years probation under section 92(1)(b) of the Penalties and Sentences Act.

The applicant is 22 years old and was 21 at the time of the offences.  He had no previous convictions.  As at today's date he has served 22 days of his sentence.

At material times he was in company with a co‑offender named Pham.  An undercover police officer had arranged to meet Pham in a place in Fortitude Valley.  Pham arrived accompanied by the applicant in a motor vehicle.  The police office went to the passenger side and handed the pre‑arranged sum of $3000 which was taken by both of the persons in the vehicle, that is to say, by the applicant and Pham. The transaction was for the police officer to be supplied with six grams of heroin. 

The money was handed inside the vehicle to Pham and arrangements were made to go to Norman Park where the undercover officer would be given the promised drug.  At that location the undercover operative waited, and eventually the two offenders returned.  On this occasion when the officer went to the passenger side the applicant handed him a plastic bag containing 12 foils.  The powder consisted of 5.296 grams, ranging in purity around 60 per cent.  The total quantity of pure heroin was 3.194 grams.

Shortly afterwards, the offenders were intercepted.  By that time, the applicant was found in possession of two of the hundred dollar marked notes which had been handed over by the undercover policeman. 

The Crown accepted that the applicant was owed money by Pham and knew that $200 out of that money would be given to him in satisfaction of a debt owed to him by Pham.  No details were supplied of the extent of the relationship existing between the applicant and Pham, or of the basis upon which Pham became indebted to him in this sum.  The fact that has been urged in mitigation is that such a debt was owed, and that the applicant chose to be involved in this business as a means of obtaining its repayment.

The learned trial Judge described the amount of heroin as a "large" amount although that perhaps overrates the quantity when the wider spectrum of these offences is taken into account.  We are concerned with a dealing involving 3.194 grams of pure heroin for a price of $3,000.

The applicant pleaded guilty.  The circumstances urged in mitigation were that his role in the transaction was very minor and the financial advantage he received not very significant.  Further, he was studying for a Bachelor of Business degree at the University of Queensland.  He anticipated completing that degree in June 1999 and hoped eventually to find employment with the RAAF.
Mr Rafter who appeared for the applicant submitted that the learned trial Judge erred in giving insufficient weight to the principle that prison should be a penalty of last resort for a young offender of previous good character. 

Reference was made to a decision of Justice Lee which reveals somewhat more serious conduct than the present conduct, and which resulted in a wholly suspended sentence of three years imprisonment.  However, the cases which were cited which have been before this Court of Appeal, and which were cited to the learned sentencing Judge, tend to indicate sentences in the considerably higher range for supply of comparable quantities of heroin, and sentences of 18 months to two years are not uncommon for dealings of the quantity and value of this particular one.

Mr Rutledge on behalf of the respondent submitted that the applicant became knowingly involved in commercial supply, that the quantity was significant, and so was the value.  Deterrence is always an important factor in sentences for offences of this kind. 

In my view, such charges, that is to say charges of supply of heroin, do not often result in non-custodial sentences although in particular cases such sentences are available.  Suspended sentences may well be appropriate in particular cases.  There was a tempting submission by Mr Rafter that an option in the present case would be to replace the custodial sentence with a wholly suspended sentence, or with a sentence suspended after 22 days so that immediate release could occur.  Whilst I consider that such a sentence could properly have been imposed, it does not follow that this Court is entitled to set aside the present sentences and replace them in this way.  The question is whether the sentence is manifestly excessive, or whether the sentencing discretion can be seen to have miscarried.

Having taken into account the circumstances, with some hesitation I find myself unable to say that the present sentence was manifestly excessive or beyond the bounds of a sound sentencing discretion.  I therefore consider it inappropriate for this Court to interfere and would refuse the application.

THE PRESIDENT:  I agree.

CULLINANE J:  I agree also.

THE PRESIDENT:  The order is the application for leave to appeal is refused.

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