Court of Appeal (WA)|2001-07-25|Before: Steytler J, Kennedy J, Miller J

Aconi v The Queen [2001] WASCA 211 (25 July 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ACONI -v- THE QUEEN [2001] WASCA 211

Criminal law and procedure - Sentencing - Two counts of possession of heroin with intent to sell or supply it to another - 112.5 grams of 43 per cent purity and 480.2 grams of 57 per cent purity - Important role in distribution chain - Whether sentence of 15 years excessive - Sentence reduced to 13 years

Effective sentence of imprisonment reduced to 13 years

Lowndes v The Queen (1999) 194 CLR 665

Miles v The Queen (1997) 17 WAR 518

R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998

R v Ruich [2000] WASCA 84

Watson v The Queen [2000] WASCA 119

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Steytler J. I am in agreement with those reasons and with the orders which his Honour proposes.

2 STEYTLER J: This is an application for leave to appeal against sentence.

3 On 29 November 2000 the applicant pleaded guilty in the District Court to two counts of possession of heroin with intent to sell or supply to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981. On 1 March 2001 he was sentenced to a period of 15 years' imprisonment on each charge, to be served concurrently. He was declared to be eligible for parole.

4 The applicant's sole ground of appeal is that the sentencing Judge erred in the exercise of his discretion by imposing a sentence that was manifestly excessive. The particulars advanced in support of this ground of appeal are, firstly, that the sentencing Judge failed to give sufficient weight to the applicant's fast-track plea of guilty and, secondly, that the sentencing Judge place undue weight upon the fact that the applicant had attempted to minimise his role in the offences committed by him.

5 On the morning of 18 July 2000 police saw the applicant buying a container and freezer bags from a Coles supermarket in Mirabooka. Shortly thereafter, they saw him entering bushland bordering Warwick Road and Wanneroo Road in Warwick. The police waited until he had left the area and then conducted a search of the area. They found four duct taped packages, each containing approximately 1 ounce of heroin. The packages were seized. When weighed, they were found to contain a total of 112.5 grams of heroin with a purity of 43 per cent. The police replaced the packages with packages of a similar appearance in the place where the seizure had been made.

6 Later on the same day the applicant was again seen entering bushland, this time near Light Street in Dianella. The police there located 17 duct taped packages in a container which was identical to the one they had seen the applicant purchase earlier that day. The packages were again seized and packages of a similar appearance were substituted for them. The seized packages were found to contain a total of 480.2 grams of heroin with a purity of 57 per cent. The heroin was sealed in freezer bags identical to the ones which had been purchased by the applicant.

7 On 22 July 2000 the applicant was seen returning to the second site where he retrieved one of the substituted packages. Shortly thereafter, he was arrested by the police in Belmont after throwing the substitute package from his vehicle. The package was retrieved and his vehicle was searched. The police found electronic scales, duct tape and freezer bags in the vehicle. The applicant was arrested and later charged with the offences the subject of this appeal.

8 The applicant's contentions, as developed by his counsel during the course of oral submissions, centred around two propositions. The first was that the total sentence of imprisonment imposed upon him was manifestly excessive in that the starting point of 18 years, which had been adopted by the sentencing Judge, was, in all the circumstances, too high. The second was that the sentencing Judge failed to give the applicant a sufficient discount by placing insufficient weight on his fast-track plea of guilty and by placing undue weight upon the fact that he had attempted to minimise his role in his offending.

9 I will deal with each of these propositions in turn.

10 As to the first proposition, counsel for the applicant contended that, on the authority of Quach v The Queen [1999] WASCA 210, the starting point of 18 years' imprisonment was too high. In that case Ipp J, with whom Wallwork and White JJ were in agreement, after reviewing a number of cases which, in his Honour's opinion, showed that it was difficult to discern a consistent pattern of sentencing for offences of the kind committed in that case (possession of a large quantity of heroin with intent to sell or supply), considered it appropriate to express his own opinion as to an appropriate range. He said, in that respect (par 26):

"I shall therefore proceed to express my view as to what would be an appropriate range for cases involving possession of heroin with intent to sell or supply, involving quantities of between about 600 to 700 grams, having a purity of between about 55% 65%, where the offender is a courier who is well aware of the quantity and quality of the heroin in his possession, who actively participates in attempting to conceal the heroin from detection, who commits the offence for commercial gain (and not solely to finance an addiction), and who is close to the source of importation. In my opinion, the appropriate range of sentences for cases of this kind is between 11 to 15 years' imprisonment."

11 His Honour went on to say (par 27) that a range established by an appellate court does not take effect "like a statute" but is merely a guide to appropriate sentences.

12 In Quach the applicant had travelled by bus to Perth from New South Wales. He was searched shortly after his arrival. The police found a cassette player in his luggage. In it were concealed three packages containing a total of 653 grams of heroin, ranging in purity from 58 per cent to 63 per cent. While the applicant had not been the importer of the drug from overseas, he had been "close to the source, and close to the higher end of the scale of responsibility for the dealing in the heroin concerned".

13 Shortly thereafter, the Court of Criminal Appeal in New South Wales, in R v Wong [1999] NSWCCA 420; (1999) 48 NSWLR 340, delivered a guideline judgment in relation to sentences for couriers convicted of importing heroin or cocaine. The Court there said that, upon the basis of existing sentencing patterns, an appropriate range in respect of "couriers and persons low in the hierarchy of the importing organisation having in their possession a mid level trafficable quantity of the drug between 200 grams and 1 kilogram would be one of 6 to 9 years.

14 That decision was considered by the Court of Criminal Appeal in this State in Serrette v The Queen [2000] WASCA 405. There Pidgeon J (with whom Kennedy and Murray JJ were in agreement) pointed out (par 14) that some caution is required in making a comparison with sentences imposed in New South Wales in which, unlike this State, there is no provision for remissions. In Serrette the 53-year-old applicant had been arrested at the Perth domestic airport. He was found to have concealed in his luggage 1,431 grams of cocaine with a "pure cocaine content" of 925.4 grams. The applicant and a co-offender had, in Trinidad, been asked to travel to Perth, taking with them eight pairs of shoes with cocaine concealed inside the sole of each shoe. They agreed to do so upon the understanding that the person who had asked them to undertake this exercise would meet them in Perth and take the cocaine from them. The total amount of cocaine which was recovered from the two offenders by police and found in seven of the pairs of shoes (the eighth pair having been delivered to another co-offender) was 2,540 grams. The sentencing Judge, in sentencing the applicant in that case, adopted a starting point of 15 years' imprisonment. This was left undisturbed on the appeal.

15 Returning to the present case, the applicant was 36 years old at the time of the commission of the two offences. He was born in Romania but was taken in by Australia, as a refugee, in 1988. He was, at the time of the commission of the offences, self-employed in the transport industry and had a partner and a young child. He said that he had become a courier and distributor of heroin in order to obtain drugs for his partner who was addicted to heroin so that he would not himself have to commit offences to obtain those drugs. He was not himself an addict and he had no prior convictions for drug offences. The sentencing Judge found that he had involved himself with the drugs for the purpose of profit.

16 The applicant had attempted to mislead the sentencing Judge in respect of his involvement with the drug. He said that, because of his wife's addiction, he was vulnerable and under pressure and that he had agreed to collect heroin for a man known as Mada in return for money and some heroin for his wife. He said that he had been involved for only a short period of time and that he was merely going to ferry the heroin to a drop off point where it would be collected by someone else. Thereafter, transcripts of intercepted telephone conversations were put in evidence which disclosed that the applicant's involvement had been very much greater than had been suggested by him to the court and he acknowledged, through his counsel, that he had attempted to mislead the court.

17 The sentencing Judge said, in that respect, the following:

"I am not sentencing you for anything else other than the offences you have pleaded guilty to but it's clear that the intercepts show that you were far more involved and higher up the chain than you wanted me initially to believe. You knew what the true position was when you gave your counsel instructions to make the plea in mitigation on 29 November. In giving those instructions to counsel to put it as it was put then, you were trying to minimise your role in accordance with the statement of material facts put before you.

The crown's submission earlier on today was that the new material places you in an entirely different light to that of being a mere courier. That is a finding that I make for the purpose of sentence - that you were not a mere courier and were much higher up the distribution chain, being a person who, on occasions, had access to a large amount of high grade heroin, as on these occasions. The value of that heroin was very high. It could be sold for somewhere between 7 and 10 thousand dollars an ounce and if it was broken down into grams or 1 gram deals, it could have been sold for a very considerable amount of money.

... I agree with the crown's submission that you are towards the top end of the heroin distribution in the state and I realise that in your plea in mitigation in November, you were trying to minimise your involvement."

18 It can consequently be accepted that the applicant had an important role in the distribution chain, having access, for distribution purposes, to relatively large quantities of high grade heroin. In those circumstances this was a case in which the starting point for the sentencing of the applicant could be expected to be severe. As was pointed out by Kennedy J in Serrette, above, at [2], it has frequently been said that those who engage in the illicit drug trade, whatever their role in the enterprise, must expect heavy sentences in which general deterrence will be the principal purpose of the punishment. This is especially so where an offender plays an important role in the distribution process.

19 That said, it seems to me that the starting point of 18 years in this case was too high, having regard for what has been said in Quach and in Wong. It is true that the range suggested in Quach is one which applies to couriers (and that is a term which can conceal as much as it reveals: see R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 279) and not to distributors. However that range was expressed to apply to those who are close to the source of importation and who commit the offence for commercial gain. It seems to me that there can be little to choose between a worst case "courier" who has between 600 and 700 grams of heroin with a purity between 55 and 65 per cent, who is well aware of the quantity and quality of heroin in his possession, who actively participates in attempts to conceal it, who commits the offence for commercial gain and who is close to the source of importation, on the one hand, and a person in the position of the applicant in this case, on the other. It also seems to me that a starting point of 18 years is excessive when compared with the range suggested in Wong, even taking into account the absence of remissions in New South Wales and the fact that the range there suggested was intended to apply to "couriers" and to persons low in the hierarchy of the importing organisation.

20 It consequently seems to me that a starting point of 18 years' imprisonment was outside the appropriate range and that a more appropriate starting point in the case of the applicant, even taking into account that he was a person "higher up in the distribution chain" than a "mere courier", was one of 16 years' imprisonment.

21 That brings me to the second of the propositions advanced on behalf of the applicant.

22 In sentencing the applicant the sentencing Judge said that, in fixing a term of imprisonment, he was mindful of the applicant's early pleas of guilty although, he said, "the discount that might apply is lessened by the circumstances I have outlined in relation to trying to minimise your involvement".

23 Counsel for the applicant contends that the reduction of three years was lower than was appropriate for an early plea of guilty, even taking into account the fact that the applicant had tried to minimise his involvement.

24 There is no formula pursuant to which discounts for early pleas of guilty are calculated. Recently, in Pop v The Queen [2000] WASCA 283 McKechnie J said (par 111) that the normal range is between 15 and 35 per cent, depending on the circumstances. In the same case Parker J said (par 41) that there is no fixed amount or mathematical formula which determines the reduction. His Honour there said that the amount of the reduction is necessarily a product of a synthesis of a number of considerations and will vary, sometimes significantly, between cases, with the determination of the reduction in each case being "very much a matter of discretion". His Honour also there said (par 43) that, of particular relevance to the exercise of the discretion is the question whether the plea is attributable to genuine contrition and remorse. His Honour said (ibid) that where the plea of guilty is no more than an acceptance of the inevitability of conviction in the face of a strong prosecution case, the fact of a plea of guilty will have much less weight than it will in the case of remorse, accompanied by a frank confession to the authorities.

25 In this case the evidence against the applicant was overwhelming and his attempts to minimise his involvement demonstrated a lack of remorse. That being so, the only basis upon which the applicant might properly have been rewarded for his early pleas of guilty rested in the public interest that accused persons should be encouraged to plead guilty at the first opportunity so as to save the State the cost and effort involved in maintaining defended prosecutions (see S v The Queen [2000] WASCA 34 at [14] per Anderson J). However, even that consideration was diminished by the applicant's lack of frankness, which made it necessary

for the Crown to take steps to correct the misleading impression which he had created. It consequently seems to me that a three year discount in this respect was undoubtedly adequate and that no error in the exercise of the sentencing Judge's discretion in that regard has been demonstrated, least of all if the starting point of the applicant's sentence is to be adjusted in the manner in which I consider it should be.

26 I would consequently grant to the applicant leave to appeal against the sentences imposed upon him and allow the appeal to the extent that I would reduce the starting point for the sentences imposed to one of 16 years. The consequence is that I would set aside the sentences imposed by the sentencing Judge and substitute, in lieu, a sentence of 13 years' imprisonment on each count, with those sentences to be served concurrently. The applicant will remain eligible for parole and, as ordered by the sentencing Judge, his sentences will be taken to have commenced on 29 November 2000.

27 MILLER J: I have had the advantage of reading in draft the reasons published by Steytler J. I am in agreement with those reasons and have nothing further to add.

Aconi v The Queen [2001] WASCA 211

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Aconi v The Queen [2001] WASCA 211 (25 July 2001)

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