Court of Appeal (WA)|2013-02-11|Before: Martin CJ

KITIS -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 34 (11 February 2013)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : KITIS -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 34

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence by offender - Multiple drug dealing offences - Total effective sentence of 12 years' imprisonment with eligibility for parole - Whether the total effective sentence infringed the first limb of the totality principle

Bahn v The State of Western Australia [2008] WASCA 40

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339

Cohen v The State of Western Australia [No 2] [2007] WASCA 279; (2007) 180 A Crim R 348

Galbraith v The State of Western Australia [2011] WASCA 70

Kirby v The Queen [2003] WASCA 164

Lam v The State of Western Australia [2010] WASCA 61

Mikulic v The State of Western Australia [2011] WASCA 127

Penney v The State of Western Australia [2011] WASCA 71

Quach v The Queen [1999] WASCA 210

Reid v The State of Western Australia [2012] WASCA 23; (2012) 210 A Crim R 587

Sinagra-Brisca v The Queen [2004] WASCA 68

The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119

1 MARTIN CJ: This appeal should be dismissed for the reasons given by Buss JA with which I agree.

3 The appellant, Yavuz Ozan, David Tanevski, Steve Milenkovski, Paul Da San Martino and Hao Bi were charged on indictment with one or more offences against the Misuse of Drugs Act 1981 (WA) (the Act).

(a) Count 1: on 4 December 2009, at Stirling, Mr Ozan supplied a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the Act.

(b) Count 2: on 4 December 2009, at Stirling, Mr Milenkovski and Mr Da San Martino had in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it another, contrary to s 6(1)(a) of the Act.

(c) Count 3: on 25 February 2010, at North Perth, Mr Ozan attempted to supply a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) read with s 33(1) of the Act.

(d) Count 4: on 25 February 2010, at Yokine, Mr Bi attempted to supply a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) read with s 33(1) of the Act.

(e) On 25 February 2010, at Yokine and elsewhere, Mr Milenkovski, the appellant and Mr Tanevski attempted to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the Act.

(f) Count 6: on 25 February 2010, at Stirling, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act.

5 Mr Tanevski, Mr Milenkovski, Mr Da San Martino and Mr Bi maintained pleas of not guilty to the offences alleged against them. Their trial commenced in May 2012.

6 The appellant was arrested on 25 February 2010. Initially, he pleaded not guilty. His trial was listed to commence on 8 August 2011.

However, on 4 August 2011 he entered pleas of guilty to the offences alleged against him (counts 5 and 6).

7 Initially, Mr Ozan pleaded not guilty. His trial was listed to commence on 8 August 2011. However, on 1 August 2011 he entered pleas of guilty to the offences alleged against him.

8 A dispute emerged between the appellant and the State as to the proper factual basis for his sentencing. As a result, on 14 and 16 December 2011 a trial of issues was conducted before the sentencing judge, Scott DCJ. At the conclusion of the trial of issues, the appellant was remanded in custody for sentencing on 21 December 2011.

9 On 21 December 2011, the appellant was sentenced on counts 5 and 6. Count 5 concerned the attempted possession of 4.983 kg of methylamphetamine, having a purity ranging between 53% and 69%, with intent to sell or supply it to another. His Honour imposed a term of 9 years' imprisonment for this offence. Count 6 involved the possession of 207.6 g of methylamphetamine, having a purity of 22%, with intent to sell or supply it to another. His Honour imposed a term of 3 years' imprisonment (reduced from 5 years in the application of the totality principle) for this offence. The individual sentences were ordered to be served cumulatively. The total effective sentence was therefore 12 years' imprisonment. A parole eligibility order was made. The total effective sentence was backdated to commence on 16 December 2011, being the date on which the appellant was taken into custody for the offences.

The facts and circumstances of the offending: count 5

10 During February 2010, Mr Milenkovski made an arrangement with Lei Zhang and Hakan Ayik, who were drug suppliers, for a large quantity of methylamphetamine to be concealed in a motor vehicle and for the vehicle to be transported from Sydney to Perth on a truck.

11 Mr Ozan was responsible for purchasing a motor vehicle in which the methylamphetamine was to be concealed and delivering the vehicle to a transport company.

12 On 15 February 2010, the motor vehicle left Sydney in the custody of the transport company.

13 In Adelaide, police intercepted the motor vehicle and located 4.983 kg of methylamphetamine, with a purity ranging between 53% and 69%, in a spare tyre. The value of the drugs, at that level of purity, was about $2,489,000. The police replaced the drugs with an inert substance. The vehicle continued its journey to Perth.

14 On 25 February 2010, Mr Ozan travelled from Sydney to Perth on a commercial airline flight.

15 On arrival in Perth, Mr Ozan collected the motor vehicle from the transport company and drove it to a car park in Bayswater. He then travelled by taxi to North Perth where he handed the keys of the vehicle to Mr Bi.

16 On 25 February 2010, the appellant and Mr Tanevski met on two occasions with Mr Milenkovski in North Perth. Less than one hour after the second meeting, the appellant met with Mr Bi and collected the keys of the motor vehicle. The appellant then drove the vehicle to his brother's house. Mr Tanevski followed in another vehicle.

17 On arrival at the brother's house, the appellant and Mr Tanevski removed the spare tyre containing the inert substance (which they believed to be methylamphetamine). The appellant placed the spare tyre in a shed in the backyard. The appellant and Mr Tanevski then left the premises.

18 A little later, police attended at the house and located the spare tyre.

The facts and circumstances of the offending: count 6

19 Later on the evening of 25 February 2010, police executed a search warrant at the appellant's house in Stirling. When the police arrived, the appellant ran from them and threw items over the fence between his backyard and his neighbour's backyard. Police searched both properties and located a plastic bag containing 207.6 g of methylamphetamine, having a purity of 22%. The value of the drugs was about $103,000. The police also found two sets of scales, $17,000 cash, a 12-gauge shotgun and various small quantities of MDMA and cocaine which were the subject of summary charges.

The trial of issues: the sentencing judge's findings of fact

20 The sentencing judge found that at the trial of issues the State had proved beyond reasonable doubt that:

(a) the appellant was a 'close acquaintance' of Mr Milenkovski and was trusted by him;

(b) the appellant knew of Mr Milenkovski's association with the Comancheros motor cycle gang and with illicit drugs;

(c) the appellant knew, in the context of count 5, that he was involving himself in a 'significant dealing' involving a 'significant quantity of drugs';

(d) the appellant was told, 'at the very latest' (and probably earlier) at the first meeting with Mr Milenkovski, to collect the drugs and hide them at the appellant's brother's house, pending further instructions; and

(e) the appellant possessed the 207.6 g of methylamphetamine, the subject of count 6, with intent to sell at least part of the drug, and that the $17,000 cash was, at least in part, the proceeds of prior sales of methylamphetamine (ts 704 -706, 708).

21 The sentencing judge set out in his sentencing remarks the facts and circumstances of the offending and his findings of fact in relation to the trial of issues.

22 The appellant was born on 22 January 1982. He was 28 at the time of the offending and 29 when sentenced. The appellant had a partner and young children. He was in full-time employment and had been regularly employed as an adult.

23 The appellant had been a regular user of illicit drugs. He had three prior convictions for drug-related offences, but these were for simple possession only. He had not previously been convicted of any drug dealing or trafficking offences. His other prior convictions were for two offences under the Firearms Act 1973 (WA) and one offence under the Weapons Act 1999 (WA). All of his prior convictions were punished by fines of a moderate amount.

24 His Honour acknowledged the appellant's late pleas of guilty. He said:

You have pleaded guilty, albeit not at the earliest opportunity. Your plea of guilty was entered on 4 August 2011, a few days prior to the commencement of your trial which was listed to commence initially on 8 August 2011.

The case against you was a strong case. Nonetheless, you have saved the State a trial against you and you have, by your plea, accepted responsibility for your conduct and, as a consequence, there will inevitably be, as there will, a discount for doing so (ts 709).

25 The sole ground of appeal relied on by the appellant is that the total effective sentence of 12 years' imprisonment infringed the first limb of the totality principle.

26 The appellant does not challenge either of the individual sentences for counts 5 and 6.

27 On 6 May 2012, Mazza JA granted leave to appeal.

The ground of appeal: the appellant's submissions

28 Counsel for the appellant submitted that the total effective sentence of 12 years' imprisonment did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances including those referable to the appellant personally.

29 A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error. The first limb of the principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases. These propositions are well-established by the case law.

30 The maximum penalty for the offence of possessing a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act, is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the Act.

31 Since the enactment of the Misuse of Drugs Amendment Act 2004 (WA), this maximum penalty has also applied to the offence of attempting to possess a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the Act. Previously, the maximum penalty for this offence had been 12 years 6 months' imprisonment or a fine of $50,000 or both.

32 The culpability of an offender (including an offender who has been convicted of an attempt, as distinct from the completed offence, including an attempt to possess a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the Act), and the extent to which he or she should be punished, must be determined by reference to all the facts and circumstances of the particular offending and the offender. See Reid v The State of Western Australia [2012] WASCA 23; (2012) 210 A Crim R 587 [45] (Buss JA, McLure P agreeing). For example, ordinarily there will be no material difference in culpability between an attempt and a completed offence involving drug dealing where the intervention of law enforcement agencies to replace a prohibited drug with an inert substance prevents the commission of the completed offence. See Reid [45].

33 The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. All of these propositions are well-established by the case law.

34 When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. These propositions are also well-established by the case law.

35 I have examined numerous prior cases of offending against s 6(1) of the Act which have at least some features comparable to the appellant's offending in count 5. See Quach v The Queen [1999] WASCA 210; Kirby v The Queen [2003] WASCA 164; Sinagra-Brisca v The Queen [2004] WASCA 68; Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107; Bahn v The State of Western Australia [2008] WASCA 40; Galbraith v The State of Western Australia [2011] WASCA 70; Penney v The State of Western Australia [2011] WASCA 71; Mikulic v The State of Western Australia [2011] WASCA 127; and the cases reviewed in those decisions.

36 I have also examined numerous prior cases of offending against s 6(1) of the Act which have at least some features comparable to the appellant's offending in count 6. See Cohen v The State of Western Australia [No 2] [2007] WASCA 279; (2007) 180 A Crim R 348; The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119; Lam v The State of Western Australia [2010] WASCA 61; and the cases reviewed in those decisions.

37 It is unnecessary to reproduce the material facts and circumstances of the prior cases I have examined or the sentencing dispositions.

38 The appellant's offending in relation to count 5 was very serious. I refer, in particular, to the following:

(a) The appellant was part of a very significant drug enterprise. He willingly assumed an important function in connection with what was, to his knowledge, a substantial quantity of a prohibited drug that was intended for distribution into the community.

(b) The appellant was a close acquaintance of Mr Milenkovski. It was Mr Milenkovski who had arranged for the acquisition of the drugs from the suppliers, Mr Zhang and Mr Ayik. The appellant's function was to act as a courier of the drugs for a short period and then to hide them at his brother's house, pending further instructions. Mr Milenkovski must have regarded the appellant as trustworthy and able to be relied upon to carry out this role.

(c) The weight, purity and value of the methylamphetamine were matters of importance. As I have mentioned, the weight of the drugs was 4.983 kg and they had a purity ranging between 53% and 69%. This level of purity indicates that the drugs were close to the source of manufacture. Their value, at a purity ranging between 53% and 69%, was about $2,489,000. If the drugs had been diluted by 50%, their value would have been about $5,000,000. Upon the drugs being further diluted to street level purity of about 10% - 14%, there would have been another increase in their weight and value.

39 The appellant's offending in relation to count 6 was also very serious. He was in possession of a substantial quantity of methylamphetamine with intent to sell at least part of it. The appellant was carrying on the business of a drug dealer. The 207.6 g of methylamphetamine was, at least in part, stock in trade of this business. The $17,000 cash was, at least in part, derived from the drug dealing business. Other items found by the police, namely the two sets of scales and the firearm, are part of the paraphernalia commonly associated with drug dealers.

(a) The appellant's pleas of guilty were a mitigating factor, but the pleas were entered only four days before his trial was listed to commence. His late acceptance of responsibility for the offences was accompanied by an attempt to minimise his culpability. Although the late pleas of guilty had utilitarian value, they were not indicative of any genuine remorse. See Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 [22] (Gaudron, Gummow & Callinan JJ); Bahar v The Queen [2011] WASCA 249; (2011) 255 FLR 80 [41] (McLure P, Martin CJ & Mazza J agreeing). Further, the pleas of guilty must be assessed in the context of the strong prosecution case.

(b) The appellant was 28 when he committed the offences and was 29 when sentenced. He did not have the mitigation of youth or inexperience.

(c) The appellant's personal circumstances and antecedents were, in general, reasonably good. His prior criminal record was minor. However, it is well-established by the case law that matters personal to an offender who has dealt or trafficked in dangerous drugs of addiction are almost always subsidiary considerations in the sentencing process.

(d) The prime sentencing considerations were appropriate punishment and personal and general deterrence. Personal deterrence was relevant because, in addition to committing count 5, the appellant had committed count 6 in the course of carrying on a business of drug dealing.

41 It was appropriate for his Honour to order some accumulation of the appropriate sentence for count 5 and the appropriate sentence for count 6. They were separate and distinct offences. As I have mentioned, his Honour reduced the appropriate individual sentence for count 6 from 5 years to 3 years' imprisonment in the application of the totality principle. He then ordered that the individual sentences for counts 5 and 6 be served cumulatively.

42 In my opinion, the total effective sentence of 12 years' imprisonment was within the range of a sound exercise by the sentencing judge of his discretion. The total effective sentence (when examined against the background of the maximum penalty, the objective seriousness of the appellant's offending, the general standards of sentencing for offences of this kind, the appellant's late pleas of guilty and his personal circumstances) bears a proper relationship to the overall criminality involved in both of the offences, viewed in their entirety. The existence of error should not be inferred from the sentencing outcome.

Drugs Amendment Act 2004

Bahar v The Queen

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Judgment (83 paragraphs)

KITIS -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 34 (11 February 2013)

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