R v White

[1992] QCA 142

IN THE COURT OF APPEAL  [1992] QCA 142

SUPREME COURT OF QUEENSLAND

C.A. No. 56 of 1992

T H E   Q U E E N

v.

ROBERT GORDON WHITE
  (Applicant)

JUDGMENT - THE COURT

Delivered the Eleventh day of June 1992

This is an application for leave to appeal against sentence.  The appellant, who is 29 years of age, was convicted before Thomas J. on an indictment containing four counts;  he pleaded guilty.  The first was that between 21 November 1990 and 5 April 1991, the applicant carried on the business of unlawfully trafficking in dangerous drugs, namely methylamphetamine, amphetamine, T.H.C. and cannabis sativa.  The other three counts were treated by the judge as relatively minor and, we think, rightly so;  each was a charge of having unlawfully supplied a dangerous drug:  two of lysergide and the third cannabis sativa.  These lesser offences each attracted a sentence of one month's imprisonment, to be served concurrently with the sentence imposed in respect of trafficking, which was three years.  The applicant's complaint is directed to the sentence on the major offence.

Before Thomas J., the Crown said that it relied upon "numerous transactions over an extended period of time in 1990 and 1991".  According to counsel for the respondent before us, there were eleven transactions in all and, as far as can be discerned from the record, that appears to be correct.  These transactions may be summarised as follows.

1.Methylamphetamine:  seven transactions of which five involved sale for amounts varying between $1,300 and $1,500 each, one was at $600 and the last at $450.

2.Cannabis sativa:  three transactions of which the first was at $20, the second was a small transaction with no consideration stated and the third was at $20.

3.Hashish:the applicant offered the substance at $600 per ounce, but no transaction was completed.

The transactions occurred between the applicant and an undercover police officer.  The applicant's case is that the police officer pestered him to sell drugs;  he claimed before us that the officer put forward a story to the effect that he was desperately in need of funds, in order to induce the applicant to obtain drugs and sell them to him.  However, the applicant admitted that at one stage he made what he called a "bit of a sales pitch" to the police officer.  He said to the police officer that "between four of us we got rid of four pounds over five weeks" - meaning four pounds of methylamphetamine.  It should be noted, however, that each so-called "ounce" seems to have contained about 1½ grams of methylamphetamine.  Further, the applicant asserted that the statement we have just quoted was not true.  He explained that he wanted to sell amphetamines because he was at the time using them himself and used take small amounts from each quantity sold;  he claimed that that was his return in each transaction, which was not engaged in for the purpose of commercial gain.

The facts appear to be that the applicant was procured by an undercover police officer, who became a close friend, to sell some thousands of dollars worth of methylamphetamines to the officer in several transactions, plus rather small quantities of marijuana;  that these transactions produced for the applicant little material gain, except the amounts he abstracted from the methylamphetamine sold on each occasion.

After dealing with the police officer on these occasions over a period of months, the applicant, it is not disputed, moved his residence with the purpose of ceasing to be involved in the "drug scene".  However, the police officer pursued him to his new place of residence and again attempted to obtain supplies of amphetamines, but without success.  It was stated to the primary judge, and not disputed, that for the last three months of the applicant's association with the undercover police officer, he supplied him with small amounts of marijuana, but no amphetamines.

It was also accepted that he co-operated, from the outset, fully with the police.  He supplied them with three addresses, but, somewhat oddly, they troubled to call at one only.

In sentencing the applicant, the judge described his offence of trafficking as perhaps the most serious in the drug range of offences.  His Honour said that the total amount of methylamphetamine was about 6.34 grams for a consideration of a little over $6,500 and mentioned the other minor supplies.  As a mitigating factor, the judge referred to the possibility that the activity was stimulated by a friendly association with the undercover police officer.  He accepted that the applicant did not make a lot of money out of the transactions, but that the trafficking was "a means of keeping your own habit going and endeavouring to make some money at the same time".  His Honour also mentioned that the applicant had desisted of his own motion before he was arrested.

It does not appear to us that any valid complaint can be made about the head sentence.  It was not, in the circumstances, a light one, but was certainly within the proper range.  The point which has concerned us is whether his Honour might have made a recommendation for parole at some date earlier than the standard. 

In considering this, the Court has, we believe, derived some advantage from its discussions of the offences with the applicant himself - an advantage which the primary judge did not have.  The impression created is that the applicant, although not entirely frank, has put forward a story which is, in its essentials, correct, namely that to a considerable extent these offences were due to the solicitations of the undercover police officer.  It is, we think, significant that it was not alleged that the applicant has ever dealt generally in drugs - i.e. engaged in any significant dealings apart from those specifically listed by the Crown.  Since the police officer became a close friend of the applicant, one would expect the officer to have become aware of such dealings, if there were any.

The applicant relied, as his counsel had below, on Cuddy (1988) 37 A.Crim.R. 226, where, in somewhat similar circumstances, a 4½ year sentence was imposed at first instance.  There were between 12 and 20 transactions in methylamphetamines, motivated by Cuddy's own addiction.  In that case, there was a significant criminal record, as there is not here and the applicant had a previous conviction for selling methylamphetamines.  The amounts involved were, however, lower than in the applicant's case.  A sentence of three years imprisonment was imposed by the Court of Criminal Appeal, although the offences with which the Court was concerned were committed within nine months of the applicant's release from prison after having served his sentence for the former trafficking offence.

Reference was also made to the case of Newnham before Dowsett J. on 2 August 1991, a trafficking case where a sentence of five years imprisonment was imposed, but with a recommendation for parole after 12 months and to Bennett before Lee J. on 28 January 1992, where there was a somewhat similar case producing a sentence of four years and six months, with a recommendation for parole after a period of nine months.  We have also noted the recommendation for early parole in Craske (C.A. No. 1074 of 1991).

In the present case, the judge remarked:

"I do not see any benefit in fixing a high head sentence and then contradicting it by making some early parole recommendation".

This may be taken to be a comment upon the course followed in other cases.

The 29-year-old applicant has not, before the offences with which we are presently concerned were committed, been guilty of any offence other than a single offence of possession of cannabis sativa and of utensils used for smoking.  He has never been to prison before and there is no particular reason to think he will re-offend by engaging in trafficking again.  The applicant was, at the time he became addicted, working as the foreman of a road gang, hardly an occupation chosen by the chronically idle.  He appears to be a person of sound character, apart from the commission of these offences, into which he was led by his then addiction to amphetamines, coupled with the solicitations of the undercover officer.  We are of the view that in the whole of the circumstances the applicant should be recommended to be eligible for release on parole after nine months imprisonment.  The application will be granted and the appeal, to the extent we have indicated, allowed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 56 of 1992

Before the Court of Appeal

Mr. Justice Pincus

Mr. Justice Davies

Mr. Justice Demack

T H E   Q U E E N

v.

ROBERT GORDON WHITE
  (Applicant)

JUDGMENT - THE COURT

Delivered the Eleventh day of June 1992

MINUTE OF ORDER:1.The application for leave to appeal against sentence is granted.

2.The appeal is allowed to the extent of recommending that the applicant be eligible for release on parole after nine months imprisonment.

CATCHWORDS:   CRIMINAL LAW - SENTENCE - Applicant sentenced to 3 years for inter alia trafficking - whether recommendation for parole ought to have been added given previous good record, relatively small commercial gain and solicitations of undercover policeman.

Counsel:            J. Costanzo for the Crown
  The Appellant acted for himself

Solicitors:         The Director of Prosecutions for the Crown

Hearing Date(s):     4 June 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 56 of 1992

T H E   Q U E E N

v.

ROBERT GORDON WHITE
  (Applicant)

_______________________________________________

Mr. Justice Pincus
  Mr. Justice Davies
  Mr. Justice Demack

_______________________________________________

Judgment of the Court delivered on 11th June 1992.

_______________________________________________

1.APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.

2.APPEAL ALLOWED TO THE EXTENT OF RECOMMENDING THAT THE APPLICANT BE ELIGIBLE FOR RELEASE ON PAROLE AFTER NINE MONTHS IMPRISONMENT.

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