R v Vidler - [1997] QCA 393

COURT OF APPEAL

[1997] QCA 393

DAVIES JA
LEE J
CULLINANE J

CA No 329 of 1997

THE QUEEN

GARY JOSEPH VIDLER Applicant

BRISBANE

..DATE 09/10/97

JUDGMENT

DAVIES JA: The applicant was convicted on his own plea in the Supreme Court on 25 August last on one count of trafficking in heroin between 15 November 1995 and 9 May 1996 and of five counts of supply between 16 and 28 November 1995. The five counts of supply formed the basis of the trafficking count. He was sentenced on the same day to five years imprisonment on the trafficking count and 18 months concurrent on each of the supply counts.

The applicant is 41 years of age, having been born on 25 May 1956. He has a minor criminal history dating from 1974. He has not previously been sent to prison, his most recent conviction and his highest penalty being one of $500 for possession of a dangerous drug on 9 April 1994. However he has an opiate dependency which he has had since 1988. He sought treatment for drug dependence in 1988 and he has continued to seek it since, but he has continued to relapse. In consequence of his addiction he has hepatitis and is HIV positive.

He was approached by an undercover police officer and asked to supply him with heroin. Initially he refused. After further requests he succumbed because of the opportunity to obtain some for himself. He then supplied drugs to an undercover policeman over a 12 day period. He discontinued his supply of his own volition. There is no evidence that he sold to anyone else.

When arrested by police in the following May he co-operated and indicated promptly his intention to plead guilty.
The applicant does not contend before this Court that the sentence of five years imprisonment was outside the appropriate range. However he submitted that a recommendation should be made for early parole and continued for a recommendation of 18 months. The respondent supported the view taken by the learned sentencing Judge who had said that a sentence of six years imprisonment would have been appropriate had the matter gone to trial and consequently the five year sentence was appropriate having regard to the early plea and the applicant's co-operation.

The respondent in this case relied on much the same cases as were referred to us in the case immediately preceding this of R v.Duong CA No 328 of 1997. The main cases relied on here were R v.Woods, CA No 381 of 1994, R v. Sivewright CA No 365 of 1996, R v. Clark CA No 393 of 1996, R v. O'Brien CA No 458 of 1996 and R v. Georgieff CA No 543 of 1996.

Sivewright was sentenced to six years imprisonment with a recommendation for parole after two and a half years. She had sold heroin to an undercover police officer on seven occasions over five weeks, the total being a little over a quarter in value…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Vidler

Details

AGLC: R v Vidler [1997] QCA 393
Case: [1997] QCA 393
Decision Date: 9 October 1997

CaseChat Overview and Summary

The Court of Appeal in R v Vidler heard an appeal by Gary Joseph Vidler against his sentence for drug trafficking and supply. The applicant had pleaded guilty to trafficking in heroin and to five counts of heroin supply between November and May of 1995. He was sentenced to five years imprisonment for trafficking and 18 months concurrent sentences for each of the supply charges. The applicant argued that the sentence was too severe and recommended parole eligibility after 18 months. The respondent argued that the sentence was appropriate given the applicant's early plea and cooperation with police.

The court considered the nature of the applicant's involvement in the drug offences and his background. The applicant had a minor criminal history but had been struggling with heroin addiction since 1988. He initially refused to supply drugs to an undercover officer but eventually did so over a 12 day period before voluntarily stopping. The court compared the applicant's case to previous cases where similar sentences had been imposed for heroin trafficking and supply. The court found that the applicant's lack of a significant criminal history, his voluntary desistance, and the absence of any commercial motive meant that the sentence was too high.

The Court of Appeal allowed the appeal to the extent of recommending parole eligibility for the applicant after serving 18 months of his sentence. The judges agreed that a recommendation for early parole was warranted given the circumstances of the applicant's first term of imprisonment. The orders were to amend the sentence to include a recommendation that the applicant be eligible for parole after serving 18 months.

Orders