R v Williams

[1994] QCA 296

IN THE COURT OF APPEAL [1994] QCA 296

SUPREME COURT OF QUEENSLAND	C.A. No. 156 of 1994
Brisbane [R. v. Williams]

T H E Q U E E N
v.

MARK WILLIAMS (Applicant)

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MCPHERSON J.A.

DAVIES J.A. AMBROSE J.

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J udgment delivered 16/08/1994

JOINT REASONS FOR JUDGMENT OF MCPHERSON J.A. AND AMBROSE J.,
DAVIES J.A. SEPARATELY, ALL CONCURRING AS TO THE ORDERS TO BE
MADE.
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APPLICATION GRANTED. APPEAL ALLOWED TO THE EXTENT OF ADDING A
RECOMMENDATION THAT THE APPLICANT BE ELIGIBLE FOR PAROLE AFTER
SERVING FIFTEEN MONTHS OF THE SENTENCES IMPOSED; OTHERWISE, THE
SENTENCES IMPOSED TO STAND.
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CATCHWORDS:CRIMINAL LAW - SENTENCE - drug offences - for each of three counts of supply and one of possession of heroin applicant sentenced to four years' imprisonment -lesser terms for other offences - in respect of counts of supply co-offender received suspended sentences - substantial quantity of heroin - a number of offences committed whilst applicant was on bail in respect of earlier counts - applicant became addict in consequence of medical treatment - apparently genuine and successful attempts to rehabilitate himself - dealing in heroin was to facilitate his own habit, rather than with motive of profit - no previous convictions - whether sentences manifestly excessive - whether recommendation for early parole appropriate.

Counsel:The Applicant in person

Mr P. Callaghan for the Respondent

Solicitors:The Director of Prosecutions for the Respondent
Date(s) of Hearing:4 August 1994
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 156 of 1994

Brisbane

Before McPherson J.A.
Davies J.A.
Ambrose J.

[R. v. Williams]

BETWEEN

T H E Q U E E N
v.
MARK WILLIAMS

(Applicant)

JOINT REASONS FOR JUDGMENT - McPHERSON J.A. & AMBROSE J.
Judgment delivered the Sixteenth day of August 1994

We agree with the reasons for judgment of Davies J.A. and with the order he proposes.

Because we are differing from the learned sentencing judge below, we think that we should say that the circumstances that particularly influence us are that the applicant has no previous convictions; that he is himself an addict who acquired the habit in consequence of medical treatment for an industrial injury sustained some years ago; that, although he dealt in substantial quantities, there is no sufficient evidence to suggest that he did so except for the purpose of satisfying his and his co-accused's addiction; that he has recently been making what seems to be a genuine and apparently successful effort to rid himself of the addiction; and that the sentence imposed on his co-accused was lenient involving as it did a suspended sentence without any period of detention.

For all these reasons, as well as others identified by Davies J.A., we agree that the application and appeal should be allowed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 156 of 1994
Brisbane
BeforeMcPherson J.A. Davies J.A. Ambrose J.
[R. v. Williams]

T H E Q U E E N
v.

MARK WILLIAMS (Applicant)

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 16/08/1994

The applicant pleaded guilty in the Supreme Court on 14 March this year on 11 counts; six of them for supplying heroin, on two of which he was charged jointly with his de facto, Sandra Leigh Hawkins; one for possession of heroin; one for possession of money from the sale of heroin; and three for supplying cannabis.

On each of three counts of supplying heroin, he was sentenced to four years' imprisonment. On the other count of supplying heroin, he was sentenced to three years' imprisonment. For the offence of possession of heroin, he was sentenced to four years' imprisonment. And for each of the offences of supplying cannabis and for the offence of possession of money from the sale of heroin, he was sentenced to 12 months' imprisonment. No recommendation was made for his early release on parole.

On the same day, his de facto wife pleaded guilty to two counts of supplying heroin jointly with the applicant. They were counts on each of which the applicant was sentenced to four years' imprisonment. On each of those counts, Ms Hawkins was sentenced to three years' imprisonment wholly suspended for a period of four years.

The applicant appeals against the sentences imposed on him on the ground that they were manifestly excessive. His main concern was, of course, the sentences of four years' imprisonment, and, although he did not confine himself to this, his main argument appears to have been that he should have received a recommendation for early parole.

The applicant is 35 years of age, having been born on 18 January 1959. He has no previous convictions of any kind. However, for some time prior to the commission of these offences the applicant and his de facto wife were heroin addicts. It was said on his behalf, and not disputed, that the applicant became a heroin user to relieve pain from the consequences of a spinal fracture. He has to his credit, on a number of occasions, sought to overcome his addiction by enrolling in a methadone programme. At the time of sentencing in this case he was so enrolled and was progressing satisfactorily.

He was enrolled on a methadone programme shortly prior to the commission of these offences when he was approached by an undercover police officer who knew him to be a heroin addict on methadone treatment. The officer asked the applicant to obtain heroin for him and told the applicant a false story that his wife was a heroin addict. However, the applicant answered: "No worries, but you have to pick it up the next day." The undercover policeman went to the applicant's house the next day and the applicant cut and supplied a quantity of powder containing heroin.

On a later occasion the applicant told the policeman that he could get weights of heroin cheaper in Sydney, that he was going to Sydney the following day if the man wanted some, and the policeman then ordered some, which was supplied. The procedure with respect to each of the other counts of supplying was similar, except that on one occasion the applicant's de facto wife went to Sydney to obtain it because the applicant apparently became airsick flying. However, it was apparent from the conversations that the applicant was obtaining heroin also for others. On one occasion he said to the undercover policeman: "I was going, anyway, to pick up material for others." He went on to say that if the agent wanted some he could take advantage of the applicant's trip to Sydney and obtain some cheaper. The applicant's de facto wife also mentioned to the agent on one occasion that they were going down for "Nick" to get him another two weights of heroin.

It may be accepted that the applicant was not dealing commercially in heroin in the sense of making a monetary profit on its sale. What he was doing, however, was buying and selling in commercial quantities in order to feed his own heroin habit.

The quantities in which the applicant was dealing were quite large. On five occasions he supplied a total of 4.065g of heroin for a consideration of $9,350. These included several large transactions; one the sale of 1.68g of heroin for $3,400, and one the sale of 1.54g of heroin for $3,300. Each of these were offences on which he was sentenced to four years' imprisonment. The amount of heroin of which he was found in possession was 1.718g of pure heroin contained in 9.98g of white powder.

Another serious aspect of these offences was that the last two, one of supplying heroin and one of having in his possession money obtained from that sale, were committed on 10 April 1993, when the applicant was on bail in respect of the first eight offences, which had been committed in July and August 1992, and the ninth offence which had been committed on 10 March 1993.

It is hard not to have sympathy for a heroin addict who is trying to overcome his addiction. As I have said earlier, the applicant has tried on several occasions to do so, and is once again on methadone treatment. However, his addiction has driven him to become a supplier of commercial quantities of heroin. Moreover, it appears plain that he has access to substantial supplies in Sydney and that, when asked by the undercover policeman to supply him with heroin, was able to do so quickly.

We were referred to a number of comparable cases, both by the applicant and the respondent. I have also looked at the cases which were cited to the learned sentencing judge. It is unnecessary to set any of them out herein. It is sufficient to say, in my view, that they support the level of sentences which were imposed on the applicant in the present case, given that his Honour sentenced him, as he was entitled to do, on the basis that he was a supplier of commercial quantities of heroin, and that he continued to supply even after he had been arrested.

However, I think that because of the absence of any previous convictions, his early plea, his efforts to overcome his heroin addiction, including his most recent and so far successful attempt to do so, and his work history including recent employment, the applicant should be given some opportunity to rehabilitate himself by a recommendation for early parole. I would therefore propose to grant the application and allow the appeal, only to the extent of adding a recommendation that the applicant be eligible for parole after serving 15 months of the sentences imposed.

The orders should therefore be: application granted, appeal allowed to the extent of adding a recommendation that the applicant be eligible for parole after serving 15 months of the sentences imposed; otherwise, the sentences imposed to stand.