SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: R v Dent [2002] QCA 247 PARTIES: R v DENT, Kevin Ian (appellant/applicant) FILE NO/S: CA No 323 of 2001 SC No 3 of 2001 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal DELIVERED ON: 19 July 2002 DELIVERED AT: Appeal against Conviction and Sentence Supreme Court at Brisbane Brisbane HEARING DATE: 3 July 2002 JUDGES: ORDER: CATCHWORDS: Davies, Williams and Jerrard JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made 1. Appeal against conviction dismissed; 2. Application for leave to appeal against sentence refused. CRIMINAL LAW APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION APPEAL AND NEW TRIAL - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL MISDIRECTION AND NON- DIRECTION PARTICULAR OFFENCES appeal against conviction for drug trafficking whether learned trial judge erred in failing to direct the jury that they should be satisfied that the alleged commercial activity extended over a period of time which broadly corresponded with the time period alleged in the charge CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION APPEAL AND NEW TRIAL where the defence raised an allegation against the police late in the trial and where it was put only to one of the police officers although the allegation was also made during the committal hearing whether learned trial judge unfairly commented on the defence case thereby prejudicing a fair trial

2 2 CRIMINAL LAW PARTICULAR OFFENCES DRUG OFFENCES PENALTIES - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING TRANSACTIONS INVOLVING HEROIN where accused received a sentence of 14 years imprisonment for trafficking whether the sentence was manifestly excessive Drugs Misuse Act 1986 (Qld), s 5 Criminal Code Act 1899 (Qld), s 564 KBT v The Queen (1997) 191 CLR 417, distinguished R v Abdo, CA 186 of 1991, 5 December 1991 followed R v Antipas [1999] QCA 168, CA No 17 of 1999, 14 May 1999, considered R v Dean [1932] NZLR 753, distinguished R v Dossi (1918) 13 Cr App Rep 158, followed R v Elhusseini [1988] 2 Qd R 442, considered R v George [2001] QCA 135; CA No 339 of 2000, 6 April 2001, followed R v Giretti (1986) 24 A Crim R 112, distinguished R v Goulden [1993] 2 Qd R 534, considered R v Ianculescu [2000] 2 Qd R 521, considered R v Jacobs [1993] 2 Qd R 541, distinguished R v Le [2000] QCA 392, CA 103 of 2000, 29 September 2000, distinguished R v Matasaru [2000] QCA 246, CA No 24 of 2000, 19 June 2000, distinguished R v Patena [1996] QCA 152, CA 107 of 1996, 28 May 1996, considered R v Quaile [1988] 2 Qd R 103, considered R v Son Thang Do [2000] QCA 135, CA No 342 of 1999, 14 April 2000, distinguished R v Swan (1987) 27 A Crim R 289, distinguished R v Tilley; ex-parte A-G [1999] QCA 424; CA No 244 of 1999, 7 October 1999, distinguished R v T [1996] 90 A Crim R 416, distinguished R v Tran [1996] QCA 173; CA No 111 of 1996, 20 May 1996, followed R v Truong & Nguyen [2001] QCA 98, CA No 278 of 2000, 15 March 2001, followed Walsh v Tattersall (1996) 188 CLR 77, considered COUNSEL: SOLICITORS: M J Byrne QC for the appellant/applicant M J Griffin SC, with G R Rice, for the respondent Nyst Lawyers (Southport) for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent [1] DAVIES JA: I agree with the reasons for judgment of Williams JA and with the orders he proposes.

3 3 [2] WILLIAMS JA: The appellant was convicted by a jury of six drug related offences. The first count alleged an offence against s 5 of the Drugs Misuse Act 1986 in that between the 1 st day of January 1999 and the 3 rd day of June 1999 at the Gold Coast [he] carried on the business of unlawfully trafficking in heroin and other dangerous drugs. The other offences can be summarised as follows: (i) On 22 April 1999 supply heroin to Grealy; (ii) On 2 June 1999 supply heroin to Ricciardo; (iii) (iv) (v) On 3 June 1999 supply methylamphetamine to Mason; On 3 June 1999 had in his possession prohibited imports namely heroin, being not less than the trafficable quantity, suspected of having been imported into Australia in contravention of the Customs Act 1901; On 3 June 1999 had possession of more than 2 grams of methylamphetamine. [3] The offences listed in paragraphs (i) to (v) were relied on as particulars of carrying on the business of unlawfully trafficking in dangerous drugs. [4] Though the appellant was convicted on all counts he has appealed only against his conviction on the trafficking charge. On the hearing of the appeal two matters were raised in support of the appeal against conviction. It was submitted that there were errors in the directions given by the learned trial judge with respect to the trafficking charge in that the jury was not told that they should be satisfied that the alleged commercial activity extended over a period of time which broadly corresponded with the time period alleged in the charge. It was asserted that no direction was given to the jury as to the necessary relationship between the period alleged in the charge and the evidence supporting the alleged trafficking. In that regard reference was made to the decision of the Victorian Court of Criminal Appeal in Giretti (1986) 24 A Crim R 112. [5] The second ground of appeal argued was that the learned trial judge unfairly commented on the defence case and that in consequence a fair trial of the appellant was prejudiced. [6] The wording of the trafficking count on the indictment followed precisely the wording of s 5 of the Drugs Misuse Act. The elements of that offence have been considered at appellate level in a number of cases; it is sufficient to refer to R v Quaile [1988] 2 Qd R 103, R v Elhusseini [1988] 2 Qd R 442, R v Goulden [1993] 2 Qd R 534, R v Patena (CA 107 of 1996, 28 May 1996) and R v Antipas (CA 17 of 1999, 14 May 1999). Those authorities clearly establish that the gravamen of the offence is that of trading for profit in a drug or drugs. Whilst a single disposal of a quantity of drug may constitute a trafficking provided the transaction is intended to be repeated, ordinarily it will be necessary to establish a degree of repetition or continuity for the offence to be established. The relevant conduct includes all acts which are part of such a business and that includes negotiations with respect to future transactions. Communications with prospective buyers, setting up lines of supply, negotiating prices and terms of supply, arranging for places and times of delivery and like activities can be the indicia of carrying on a business of the type in question. [7] In the present case, as established by the convictions with respect to the other charges on the indictment, there was a supply of heroin on 22 April 1999, a further

4 4 supply of heroin on 2 June 1999, a supply of methylamphetamine on 3 June 1999, possession of a substantial quantity of heroin on 3 June 1999 and possession of a significant quantity of methylamphetamine also on 3 June Central to the appellant s argument was the fact that, apart from the supply on 22 April 1999, all the evidence as to actual supply and possession of dangerous drugs related to 2 and 3 June [8] The evidence placed before the jury in support of all the counts on the indictment included evidence that on 8 January 1999 a warrant was obtained by investigating police entitling them to intercept telephone conversations involving the appellant. The first telephone conversation intercepted and placed before the jury was one which took place on 12 January It was open to the jury to conclude that it constituted evidence of negotiations with respect to dealing in dangerous drugs. There was then another telephone conversation intercepted on 5 February That was of more significance because it was with the person Ricciardo. The appellant gave evidence at his trial that over a period of about six months prior to June 1999 he and Ricciardo were engaged in dealings in steroids. The appellant contended that the phone conversation of 5 February 1999, and the later phone conversations with Ricciardo, related to dealing in steroids and not the dangerous drugs heroin or methylamphetamine. But the jury was invited to find, and clearly could find, particularly if they were satisfied that on 2 June 1999 the appellant supplied heroin to Ricciardo, that the earlier conversations related to dangerous drugs such as heroin and methylamphetamine rather than steroids. [9] There were a significant number of telephone conversations during the whole of the period from 1 January 1999 to 3 June 1999 which could have been accepted by the jury as proving that throughout that period the appellant was carrying on the trafficking business as charged. [10] At trial the defence raised no particular issue with respect to the time parameters fixed by the dates alleged in the indictment. There was not, for example, any suggestion, that for some reason (such as being overseas) the appellant could not have committed the offence throughout the whole of the period alleged. It was against that background that the learned trial judge in the course of his summing-up said when instructing the jury on the elements of the offence: There is no dispute about the time and place. [11] The submission on behalf of the appellant is that such directions in a case where the allegation was for a period of five months, and there were limited occasions of supply, were insufficient. It was said that some specific direction should have been given to the jury as to the necessary relationship between the period alleged and the alleged trafficking. It was also submitted that the direction in question wrongly left open for different members of the jury to be satisfied as to different activities within the period to amount to trafficking. [12] Section 564 of the Code deals with the form of an indictment and it includes the statement that the indictment must set forth the offence with such particulars as to the alleged time and place of committing the offence as may be necessary to inform the accused person of the nature of the charge. It is clear that the date is not an actual element of the offence. As Atkin J (Darling and Shearman JJ concurring) said in Dossi (1918) 13 Cr App Rep 158 at 159: From time immemorial a date specified in an indictment has never been a material matter unless it is actually an

5 5 essential part of the alleged offence. The date alleged in the indictment may in the course of the trial become a very material matter; that is particularly so when, for example, a defence of alibi with respect to the date specified in the indictment is raised. It is that circumstance which has given rise to decisions such as Swan (1987) 27 A Crim R 289, R v Dean (1932) NZLR 753 and R v Jacobs [1993] 2 Qd R 541. The Queensland appellate courts in Swan and Jacobs appear to have accepted that the primary function of alleging a date in the indictment is to enable the accused person to prepare properly for trial and to confine the evidence at trial to that relevant to the date or period alleged. [13] Here, as already noted, the defence did not rely on, for example, alibi, but rather to the contrary admitted communications and dealings with at least Ricciardi during the approximate six month period referred to in the indictment. [14] Unless something in Giretti compelled a contrary conclusion there would be no substance in the submissions on behalf of the appellant. The argument for the appellant concentrated upon a passage at in the dissenting judgment of Ormiston J to the following effect: It is not necessarily difficult to draw the inference that an accused is trafficking from proof of a large number of transactions which can be so described, especially if they are committed over a relatively short period, but it is another matter to leave it open to a jury to find a continuing offence from possibly only two or half a dozen or so transactions over periods which varied from three to 16 months. Again, it is possible that a jury might draw properly an inference that an accused is engaged in the trade or business of dealing in drugs using two isolated transactions, but it would be necessary for there to be some other evidence which would indicate that the accused was engaged in a continuous commercial activity over the alleged period. I am not suggesting that it would be essential for the jury to be satisfied that the offence was committed precisely during the alleged dates, for, as I ve said before, ordinarily such matters of time in a presentment are immaterial. However, if the jury are being invited to reach a verdict in respect of the continuing activity over an extended period, for this purpose, at the least, they should be told they should be satisfied that the alleged commercial activity of the accused extended over a period of time which broadly corresponds to the allegation, unless the Crown chose in the course of the trial to confine its allegation to a shorter period and was not required to amend the presentment. (my emphasis) [15] In order to appreciate the significance, if any, of that statement to the charge in question here it is necessary to refer to the Victorian law under consideration in Giretti, and the issues which were there before the court. The appellants were proprietors of a massage parlour and, essentially, paid their employed prostitutes in heroin. Heroin was also supplied to other persons associated with the activities of the massage parlour business. The criminal activity in question allegedly took place over the period between 1 July 1982 and 16 July The critical evidence for the prosecution came from prostitutes and they were, not surprisingly, unable to specify precise dates on which they were supplied with heroin in lieu of cash for work done or sexual favours rendered to the appellants. From a legal point of view the matter was complicated because the Poisons Act 1962 applied with respect to offences

6 6 committed up to 18 December 1983 when the Drugs, Poisons & Control Substances Act 1981 came into force. Counts 1 and 2 were laid pursuant to the earlier statute and counts 3, 4 and 5 pursuant to the latter. [16] Crockett J summarised the position as follows at 114: The engagement in such activity had a regularity and continuity that would enable it properly to be described as the conduct of an ongoing business of heroin trafficking. It was because the case was put this way that the counts were framed as they were. With the exception of count 4 the counts allege, not a specific act of trafficking, but an ongoing trafficking over a period of time. The second and third counts have been divided as they were only because of the change in the legislation. The fourth count alleges a specific act of trafficking consisting of the joint possession by the applicants on 26 April 1981, of a quantity of heroin. The quantity and the circumstance of its possession support the inference that its possession was for sale. [17] Pursuant to the 1991 Act traffick was defined in this way: Traffick in relation to a drug of dependence includes (a) prepare a drug of dependence for trafficking; (b) manufacture a drug of dependence; or (c) sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence. [18] As all the judges in that case pointed out, given the definition of traffick, either a single offence could be charged specifying a particular date, or it could be alleged that a business was being carried on, that is a continuing offence over a period of time. As was pointed out in the judgments in that case the continuing offence could be alleged because the definition in the statute was an inclusive one, and the term traffick in its ordinary meaning connoted the existence of a continuing business. It followed that for purposes of a charge for the offence of trafficking under that Victorian legislation the prosecution either could be relying on a single specific act coupled with the necessary intention, or on the conduct of a business on a continuing basis over a period of time. In the latter situation the prosecution would ordinarily be relying upon multiple specific offences committed during the period it was alleged such business was being carried on. Ormiston J said, probably correctly given the Victorian situation, that there was a significant difference between the two types of trafficking (137), and that it was necessary for that distinction to be made clear in presenting the prosecution case and in summing-up to the jury. [19] The principal issue addressed by Crockett J (with whom Gray J agreed) was whether or not alleging a series of specific offences as constituting the trafficking charged rendered the presentment open to criticism on the ground of duplicity. (119). That gave rise to the subsidiary question whether or not there were multiple offences charged so that the prosecution should be required to elect as to which particular offence it relied on. Crockett and Gray JJ rejected that argument and concluded that given the concept of trafficking there was no duplicity involved. That was the aspect of the decision in Giretti to which Gaudron and Gummow JJ at 87 and Kirby J at 93 referred to in their judgments in Walsh v Tattersall (1996) 188 CLR 77.

7 7 [20] The concern which Ormiston J had, and which led to him differing from his colleagues, was that the learned trial judge in his summing-up did not clearly differentiate between a single act which might have constituted the offence of trafficking and the continuing offence. His concern was that some jurors may have convicted on the basis of a single act, whereas others might have based their conclusion on a continuing offence over some period of time. It was against that background that his Honour made the statement which has been quoted above. [21] The Queensland offence is clearly different. Here we are concerned with the offence of carrying on the business of unlawful trafficking. The very use of the term business clearly distinguishes the Queensland offence from that which may be involved in a trafficking charge under Victorian law. Here, if there is not actual continuity, there has to be at least an intention that the dealing in drugs be carried out over a period of time with a view to profit. [22] In Queensland s 564 of the Code requires a time parameter for carrying on the business of unlawfully trafficking in a dangerous drug to be set so that the accused is properly informed of the nature of the charge and is able to respond appropriately. If, given the evidence, the time parameter was set unreasonably wide it may well be that an issue would arise as to whether the accused could have, or had, a fair trial. But where the time parameter fixed is reasonable on the prosecution evidence then the jury is entitled to return a verdict of guilty if satisfied beyond reasonable doubt that the accused carried on the business of unlawfully trafficking in a dangerous drug during a period within the set parameters though not for the whole of the period so set. [23] In my view the decision of this court in R v Ianculescu [2000] 2 Qd R 521 is not to the contrary. There the appellant pleaded guilty carrying on the business of trafficking in dangerous drugs between 12 May 1996 and 29 November The issue arose partly because Part 9A of the Penalties & Sentences Act 1992 came into operation on 1 July It was contended on appeal that the conclusion of the learned sentencing judge that the only rational inference that can be drawn here, having regard to the admission inherent in the plea of guilty that you carried on the business between 12 May 1996 and 29 November 1997, is that the business continued in the period between June of 1996 and May of It was submitted on appeal that the plea of guilty would not carry with it the implication that the business was carried on throughout the period alleged in the indictment and that the offence was established if at any time during that period for however limited a time the business was carried on. Undoubtedly the appellant was hoping to avoid the consequences of Part 9A applying to his sentence, by having the court hold that the offence occurred prior to that amendment coming into force. Cullinane J (with whom Ambrose J agreed) quoted the passage from the judgment of Ormiston J set out above and then said: In my view the conclusion to be drawn from the applicant s plea of guilty is an acknowledgement that he carried on the business between the dates stipulated in the indictment. Such a conclusion would also be reasonably open as a matter of inference from the undisputed facts. In my view that conclusion reached by Cullinane J flowed directly from the plea of guilty and was, as he said, supported by the undisputed facts. It was not necessary to rely on anything said by Ormiston J in Giretti to arrive at that conclusion.

8 8 Given that in Ianculescu there was no analysis of what was decided in Giretti, the reference to that case cannot be taken as an endorsement by this court of any particular principle said to be derived therefrom. [24] Before leaving this point it is also necessary to refer to the decision of this court in R v T [1996] 90 A Crim R 416 (which on appeal to the High Court is reported as KBT v The Queen (1997) 191 CLR 417). The charge in that case was that of unlawfully maintaining a sexual relationship with a child under the age of 16 years during a period which extended from July 1989 to January Pursuant to s 229(1A) of the Code the prosecution had to prove that the accused did an act constituting an offence of a sexual nature in relation to the child on three or more occasions during the material period. Much of the reasoning of the Court of Appeal is concerned with the issue of fairness to the accused when the charge is of a compendious kind without adequate particularisation. There was then at 424 a reference to Giretti, specifically to the problem therein discussed that while one isolated transaction might constitute trafficking, a single offence of trafficking could also be constituted by numerous transactions extending over a period of time. After referring to the judgments of Crockett J and Gray J the court then quoted some four pages from the judgment of Ormiston J which included the passage set out above and relied on by counsel in this case. With respect to the members of that court there was no analysis of the issues which arose in the Victorian case, and no indication as to how or why the lengthy passage quoted from the reasoning of Ormiston J should apply in Queensland. The question in T was not the same as that which arises now for consideration and in the circumstances nothing said in T should be taken as governing the present situation. It is also not irrelevant to note that the High Court reversed the decision of the Court of Appeal without referring at all to Giretti. [25] As is implicit in some of the reasoning in cases such as Giretti and Ianculescu the period during which the business of trafficking has been carried on will be vitally relevant on the issue of sentence. If an accused does not intend a plea of guilty to admit trafficking throughout the whole of the period referred to in the indictment then, if there is no agreement, the sentencing judge would have to undertake the appropriate fact finding exercise to determine the extent of the offence for sentencing purposes. After a trial it would be open to counsel for the convicted person to submit that on sentence the court should treat the offence as having been committed during a shorter period than that alleged in the indictment. It would be for the sentencing judge, having regard to the evidence at trial, to determine the proper basis on which the accused should be sentenced. [26] In this particular case the evidence established an association between the appellant and others throughout virtually the whole of the period specified in the indictment which, on the whole of the evidence, entitled the jury to conclude was a relationship associated with the appellant s business of trafficking in dangerous drugs. [27] There is no substance in the first ground of appeal. I now turn to the second ground of appeal. [28] It was submitted it was always part of the defence case that police had buried some heroin in the front yard of the appellant s residence because an earlier search of his house had not located any dangerous drugs. It was asserted that that was made clear at the committal hearing. At trial that proposition was put to only one of the police

9 9 officers who had been involved in the operation which led to the finding of various amounts of heroin and amphetamine and the charging of the appellant; that was Hunniford, who was one of the last police witnesses called. When the point was taken as a request for redirections counsel for the appellant indicated that he was motivated in so conducting the case by the fact that he had no specific instructions as to which police officer had planted the drug and Hunniford was the senior man. [29] In his closing address Crown prosecutor asserted that this allegation of planting the drug had only apparently developed during the course of the trial; in support he relied on the fact that the issue was only raised at a late stage and only with Hunniford. In dealing with the prosecution case the learned trial judge in the course of his summing-up said: It was put to Hunniford that one of the police had removed the drugs from the locker, and the allegation is quite plainly that they were then planted on his premises. As Mr Rice has said, that was only put to Hunniford, not to any other police officer. [30] The observation by the learned trial judge was accurate. The complaint is, however, that it was unfair because it gave credence to the assertion by the Crown prosecutor that the defence was a recent fabrication when (though now known to the jury) it had been raised at committal. [31] One must concentrate on what happened at the trial. There are many reasons why an issue raised at committal may not be raised at trial. If the allegation that the heroin found buried was planted there by police was a central plank in the appellant s defence, that allegation had to be raised with the various police officers who had the opportunity of being implicated. By raising it towards the end of the prosecution case, the police officers called earlier were denied the opportunity of commenting on the allegation, and objectively it had to be said that the contention was raised at a late stage. [32] There is no substance in the ground of appeal. [33] It follows that the appeal against conviction should be dismissed. [34] There is also an application for leave to appeal against sentence. The sentence imposed was 14 years imprisonment on the trafficking charge. Convictions were recorded, but no separate penalty imposed, with respect to the other counts on the indictment. [35] The appellant was aged 57 having been born on 18 August He had a criminal history which was not of major significance for present purposes. His most recent conviction was in The only drug related offences in his record were convictions in 1985 and 1986 for possession of cannabis. [36] For some time prior to January 1999 the appellant was the lessee of two commercial storage lockers, one at Fort Knox Storage and one at Miller s Storage. When searched by police on 2 June 1999 the Fort Knox locker contained packages of heroin totalling grams at 61 per cent purity, that is grams pure, packages of methylamphetamine weighing grams at 6.1 per cent purity that is 6.67 grams pure, and paraphernalia for use in drug trafficking (scales, gloves, hammer, freezer bags, plastic clip seal bags, firearms). At Miller s storage the police located $60, cash inside a drink container. With respect to the supply

10 10 of heroin to Grealy evidence was led that after surveillance Grealy was apprehended with a 28 gram package in her underwear. The supply of heroin to Ricciardo on 2 June and of methylamphetamine to Mason on 3 June were of drug that was included in the quantity observed by police in storage on 2 June. There was also evidence that the appellant led a lavish lifestyle inconsistent with his status as an invalid pensioner; he had a canal front home, a Jaguar car, and a motor cruiser with an estimated value of $210, [37] The learned trial judge said that whilst it is difficult to assess the full extent of the prisoner s drug trafficking activities he was not a street level dealer. He sentenced on the basis that the appellant supplied to people who wanted bulk quantities to supply to persons lower in the chain. Because of the quantity of heroin located he concluded that it was evident that there was quite a substantial business. [38] This was not a case where any remorse was shown; the appellant was convicted after a 10 day trial. The learned sentencing judge referred to the fact that the appellant had been able to obtain the status of an invalid pensioner because of some old injuries but he observed that the extent of the health problems is unsupported by any more material than this. [39] The judge made mention in his remarks of the fact that in one of the intercepted phone conversations the appellant had made some statement suggesting he might have been getting out of the drug trade, but all the evidence, particularly the quantity of drug located by the police, suggests that no real steps had been taken to do that prior to arrest. [40] In this court counsel for the appellant concentrated on the fact that there was quite limited evidence of actual sales of drugs by the applicant. That in my view is outweighed by the evidence as to the extent of the business carried on virtually throughout the period referred to in the indictment. The large amount of drug seized, and the amount of money obviously held by the appellant in consequence of his illicit business, clearly demonstrates that this was a case of substantial trafficking in heroin and methylamphetamine. [41] Counsel for the appellant contended that the appropriate range was from seven to nine years and in support of that relied on sentences imposed in R v Tilley; ex parte Attorney-General [1999] QCA 424, R v Do (CA 342 of 1999), R v Le; ex parte Attorney-General [2000] 392 and R v Matasaru (CA 24 of 2000). Each of those matters involved a plea of guilty, and Do and Le were young people. Matasaru has a number of similarities to the present case. In that case there was supplies to an undercover officer of 49 grams of pure heroin for $28,000.00, and a further 149 grams of pure heroin and $22, cash found at the accused s house. He was 47 years of age with no relevant previous convictions. On his plea of guilty to a charge of trafficking he was sentenced to 12 years imprisonment. [42] Counsel for the respondent relies on the sentences in Abdo (CA 186 of 1991), Tran (CA 111 of 1996), Truong (CA 278 of 2000) and George (CA 339 of 2000). Those cases indicate that for trafficking in heroin at a wholesale level sentences of up to 18 years could be imposed after a trial. Bearing in mind that this appellant is not entitled to the discount for an early plea which benefited Matasaru, I am of the view that a sentence of 14 years imprisonment was within range; it cannot be said to be

11 11 manifestly excessive. It follows that the application for leave to appeal against sentence should be refused. [43] The orders of the court should therefore be: 1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence refused. [44] JERRARD JA: I have read the reasons for judgment of Williams JA. I respectfully agree with those and with the orders proposed.