Youngberry v Bowes

[1994] QCA 466

IN THE COURT OF APPEAL [1994] QCA 466

SUPREME COURT OF QUEENSLAND

C.A. No. 322 of 1994

Brisbane

[Youngberry v. Bowes]

M.J. YOUNGBERRY
v.
KENNETH LEWIS BOWES

(Applicant)

Davies J.A. Pincus J.A. Lee J.

Judgment delivered 03/11/94
Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED. WARRANT TO ISSUE AND LIE IN THE REGISTRY FOR A PERIOD OF SEVEN

D AYS.

CATCHWORDS: CRIMINAL LAW - DRUG OFFENCES - SENTENCE - applicant sentenced to concurrent terms of imprisonment for counts of unlawfully supplying amphetamines - supply to undercover policeman posing as user - applicant obtained no money for himself but a small quantity of drug from each transaction for own use - admissions to police - early plea of guilty - no relevant previous convictions - whether possibility that applicant was induced to commit the offences by police - whether sentences manifestly excessive

Counsel:	Mr J. Farmer for the applicant Mr D. Meredith for the respondent
Solicitors:	Legal Aid Office for the applicant Director of Prosecutions for the respondent

Hearing date: 25 October 1994

JUDGMENT OF THE COURT

Judgment delivered 03/11/94

The applicant was convicted on his own plea on 3 August 1994 of two offences of unlawfully supplying a dangerous drug, namely amphetamine, on 15 March 1994 and 19 March 1994. The supply in each case was to an undercover police officer. The applicant was sentenced in respect of each offence to four months' imprisonment to be served concurrently. He seeks leave to appeal against that sentence.

The applicant is 40 years of age, having been born on 29 January 1954. He has a number of previous convictions but, at the time of commission of these offences, none since 1986 and none which justified the imposition of a sentence of imprisonment. In respect of one in 1973 he had been discharged on entering into a recognizance. In respect of all others he had been fined. Only one, possession of a prohibited plant in August 1981, involved drugs.

The circumstances of the commission of the offences were as follows. The applicant, who was an amphetamine user, was drinking in a hotel in Cairns when he was approached by a person whom he then thought was a friend. That person introduced him to a man called Brad who, he said, was looking to purchase amphetamines. He asked whether the applicant could assist. The applicant said he would try and took "Brad's" phone number. The name "Brad" was in fact a pseudonym of an undercover police officer and the person whom the applicant thought was his friend was a police informer.

The applicant arranged for the supply to "Brad" of four grams of amphetamine for $400.00. On 15 March he met "Brad" in the car park of the Cairns Australian Rules Football Club after contacting him by telephone. He obtained $400.00 from him which he took to the Balaclava Hotel where he met a man, whose name he did not know, and exchanged with him the $400.00 for four one gram packets of amphetamine. He then returned to the car park where he handed the amphetamine to "Brad" having first, by agreement, taken a quantity from each packet for his own use. A similar transaction occurred on 19 March 1994 in which "Brad" obtained six grams of amphetamine for $500.00.

In neither transaction did the applicant receive any money. In each, however, he received a small amount of amphetamine for himself. He said that he was induced to agree to supply the drug to Brad so that he could obtain a small amount for himself.

There was no evidence that the applicant had previously dealt in drugs of any kind or that he had ever approached anyone with a view to selling drugs. There was no evidence that the amount supplied in each case by the applicant would have been more than necessary for the personal use of an amphetamine user. It was submitted on the applicant's behalf before the sentencing magistrate that, so far as the applicant was aware, "Brad" was an amphetamine user.

Both below and in this Court a number of matters were submitted on behalf of the applicant in support of his contention that he should not have been sentenced to imprisonment. He made admissions to the police when first approached and pleaded guilty at an early stage. He should be treated as someone who has no relevant previous convictions. Favourable references were tendered from employers including the person who was his employer at the time of commission of the offences.

Though relevant to the sentences which should have been imposed, none of the above matters would justify interference by this Court with the sentences in fact imposed. The other submission made on the applicant's behalf was that he would not, or may not have committed the offence had he not been asked to do so by the undercover policeman.

For the purpose of considering this submission the applicant must be treated, not as a person who was standing ready to supply amphetamine to whomever wanted to buy it, but as someone who supplied only because a user, introduced by a friend, had asked him to obtain some; but as a person induced to supply, in that situation, by the prospect of obtaining some amphetamine for himself. Cases in which undercover police become involved in the commission of an offence may involve entrapment in the sense that an accused is induced, by words or conduct of the policeman, to commit an offence which he would not have committed had it not been for that inducement or may be cases in which police merely become involved in the commission of an offence which the accused person intended, in any event, to commit. In cases of the former kind it has been said that the accused, when convicted, may be entitled to a reduction in the sentence which would have been imposed had the offence been committed without the inducement: Birtles (1969) 53 Cr.App.R. 59; Underhill (1979) 1 Cr.App.R. (S) 270; The Queen v. Mandica (1980) 24 S.A.S.R. 394; R. v. Romeo (1987) 45 S.A.S.R. 212; The Queen v. White C.A. No. 56 of 1992, judgment delivered 11 June 1992. In some cases where there has been inducement on the part of police it may be difficult or even impossible on the evidence to say whether, without it, the convicted person would have committed the crime. This is not one of these cases.

In the present case it was not submitted, and on the evidence could not have been submitted, that the undercover police officer held out any inducement to the applicant or was a party to any persuasion. He simply posed as a person who wanted to purchase amphetamine, albeit as a user. The real inducement to the transaction for the applicant was the prospect of obtaining some amphetamine for himself.

We do not think it appropriate in those circumstances to reduce the sentence imposed because of any conduct on behalf of the police. We would therefore refuse the application. The applicant is on bail. We therefore order a warrant to issue for the applicant's apprehension, the warrant to lie in the registry for a period of seven days.