Court of Appeal (WA)|2008-02-28|Before: Wheeler JA

BAHN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 40 (28 February 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BAHN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 40

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

File No : IND 1098 of 2004, IND 1761 of 2005

Criminal law - Appeal against sentence - Drug offences - Manifest excess - Totality - One transaction rule - Parity - Turns on own facts

1 WHEELER JA: These two appellants were jointly indicted in respect of certain offences under the Misuse of Drugs Act 1981 (WA). Indictment 1098 of 2004 relevantly provided:

(1) Between 15 September 2003 and 3 October 2003 at Perth ... Luu and ... Bahn conspired together to sell a prohibited drug, namely methylamphetamine, to another.

(2) ...

(3) On 17 September 2003 at Perth ... Luu and ... Bahn offered to sell a prohibited drug, namely [ecstasy] to another.

(4) ...

(1) ...

(2) On 15 October 2003 at Subiaco ... Luu supplied a prohibited drug, namely heroin, to another.

(3) ...

(4) On 20 October 2003 at Rivervale ... Luu and ... Bahn supplied a prohibited drug, namely heroin, to another.

3 The counts on the indictments which have been omitted relate to two other persons.

4 The appellant Luu pleaded guilty to all four counts on 7 May 2007. On 6 June 2007, the appellant Bahn pleaded guilty to count 4 on indictment 1761/05. On 9 July 2007, he entered further guilty pleas in respect of counts 1 and 3 on indictment 1098/04.

5 Each appellant appeals a total effective sentence of 10 years' imprisonment, with eligibility for parole.

6 The facts surrounding the offences are briefly as follows. During September and October 2003, the organised crime investigation unit carried out investigations into the appellants' activities. The method of investigation included lawful telephone intercepts, physical surveillance and the use of an undercover police officer who both appellants knew as "Carlos". On 17 September 2003, Luu met Carlos at a coffee shop in Nedlands and the pair discussed the supply of drugs to Carlos. Carlos showed Luu $70,000 in cash as an indication of his ability to buy large quantities of drugs and the pair then proceeded to discuss how they would manage their interactions through the use of code names and the supply of mobile phone SIM cards. During the course of the meeting, Luu told Carlos that he would supply 2 kg of methylamphetamine at a price of $340,000 and raised the possibility of providing a sample. Luu also informed Carlos that he could supply up to 10,000 ecstasy tablets if he was interested in placing an order.

7 After the meeting ended, Luu made telephone calls in an effort to source the drugs. Carlos telephoned Luu later that day and asked for a sample of methylamphetamine. Arrangements were made to meet at a Nedlands cafe that evening, where Luu introduced the appellant Bahn. The appellants informed Carlos that they were unable to supply a sample at that time. However, they reassured Carlos that they would be able to source 2 kg of good quality methylamphetamine which was the subject of count 1 on indictment 1098/04. They also offered to sell a quantity of ecstasy, which gave rise to count 3 on IND 1098/04.

8 Between 17 September and 27 September 2003, the appellants made attempts to source the 2 kg of methylamphetamine. On 27 September, Luu contacted Carlos to inform him that there were "some delivery problems". The pair met again on 30 September and they discussed the possibility of obtaining the methylamphetamine from alternative sources. Luu informed Carlos that he had 1 kg of the drug but that "he would rather do it all in one transaction". By early October, it became apparent that the specified quantity of methylamphetamine could not be sourced.

9 During the early hours of the morning on 14 October 2003, Luu and Bahn had a telephone conversation in which they discussed drug dealing generally. Bahn mentioned giving various people a quantity of drugs and discussed market price and purity. Toward the end of the telephone conversation Luu asked Bahn if he could get him a sample of drugs; Bahn agreed saying it could be done at around noon on the following day. At approximately 3.30 pm on 15 October 2003, Luu met Carlos at a Subiaco cafe and gave him a sample of heroin (count 2 on IND 1761/05).

10 Later that evening, Carlos contacted Luu to negotiate the supply of 1 kg of heroin. It was ultimately agreed that Carlos would pay $290,000 for the heroin and $10,000 as payment for Luu. Over the next few days Luu and Carlos attempted to negotiate the logistics of the transaction during a series of telephone conversations.

11 On 17 October 2003, Bahn telephoned Luu and told him to contact Carlos to conduct a deal for half a kilogram of heroin on the following day. Luu contacted Carlos and the pair discussed prices. The proposed transaction was ultimately postponed until 20 October 2003. On 18 October, Luu contacted Carlos and offered to supply an entire kilogram, as originally planned. During the next day, Luu, Bahn and Carlos negotiated the logistics of the transaction with one another by telephone. It was agreed that Luu would make the exchange.

12 At approximately 12 noon on 20 October 2003, Luu and Carlos met at a Subiaco cafe to finalise the arrangements for the transaction. Luu informed Carlos that the heroin would be packaged in two amounts. The first package would be the same quality as the sample supplied on 15 October whilst the larger amount would contain higher grade heroin at no extra cost.

13 At approximately 2.20 pm that afternoon, Carlos sent Luu a text message saying "Room 61, Great Eastern Highway Motor Lodge, ready now, any problems, ring me". Luu was driven to the location by another person and arrived at approximately 2.40 pm. Bahn and another person travelled to the motor lodge in Luu's car. Luu was observed to enter room 61 while Bahn was observed driving around backstreets adjacent to the motor lodge. Police entered the room a short time later and seized 1011.5 g of heroin of purity ranging from 18 to 26% (count 4 on IND 1761/05).

14 Placing issues of totality to one side, the learned sentencing judge would have been prepared to sentence the appellants as follows:

15 The learned sentencing judge considered that the offences in IND 1098/04 were "part of one multifaceted course of criminal conduct" (ts 60, 64) and ordered that the sentences in respect of each count should be served wholly concurrently by each appellant. In respect of IND 1761/05, the appellant Luu was ordered to serve the sentences imposed in respect of counts 2 and 4 wholly concurrently also on the basis that the offences were "part of one multifaceted course of criminal conduct" (ts 59).

16 However, his Honour formed the view that some form of partial cumulation and partial concurrency was appropriate to reflect the extent of the appellants' criminal conduct. In respect of the appellant Luu, his Honour noted:

[F]or the two offences on indictment 1098 which I would have otherwise ordered a period [of] imprisonment at five years for the conspiracy and four years for the offer, I believe that it is appropriate that a cumulative sentence of two years concurrently on each of those charges be imposed. Therefore on those two offences of the conspiracy and the offer I impose a two-year sentence on each.

I order that both sentences be served concurrently with each other but cumulatively on the previous indictment. (ts 61)

17 Similarly, in relation to the appellant Bahn, the learned sentencing judge stated:

As you have heard me explain to Mr Luu, the total effect of the sentence must be a proper relationship between the offending and the total sentence imposed. I do accept that there should be some degree of concurrency and some degree of accumulation. I could achieve this by ordering that part of the sentence be ordered to commence after a certain number of years. However, I think it is most appropriate simply to order that two years of the sentences be served cumulative.

So on indictment 1098 I order that the sentence imposed for each of the conspiracy and the offer be two years. I order that those sentences be served concurrently with each other but cumulatively on the sentence that I imposed on indictment 1761 of 05. (ts 64)

18 The total effective sentence with respect to each appellant was 10 years' imprisonment, backdated to 7 May 2007 for Luu and 6 June 2007 for Bahn, with eligibility for parole.

19 This course was consistent with Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, in which the High Court outlined the practical consequences of the totality principle:

Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. (63)

20 In arriving at these sentences, his Honour applied a discount of 25% in respect of each appellant to take into account their personal circumstances, which included their early pleas of guilty. It is clear from the facts I have recounted that the evidence against each offender would appear to have been such that conviction was inevitable. In those circumstances, a plea of guilty would have less weight; however, his Honour accepted that each appellant was genuinely remorseful.

21 With regard to Luu, who was 23 at the time of offending and 27 at the time of sentencing, his Honour noted that the appellant was well-educated, remorseful and that he had every prospect of becoming a contributing member of society (ts 58). He observed that the appellant had no prior criminal history and that he began using amphetamines and ecstasy following the breakdown of a de facto relationship (ts 57). The appellant's drug usage eventually began to spiral and the learned sentencing judge accepted that he committed the offences as a means of clearing his debts to suppliers and obtaining money for himself (ts 57). His Honour accepted that the appellant made efforts at rehabilitation.

22 With regard to Bahn, the learned sentencing judge noted that the appellant had a good work record and that the offending was "out of character" (ts 62). Bahn was 35 at the time of sentencing. His Honour observed that the appellant had no relevant history of offending and that certain financial difficulties had led him to commit the offences in question (ts 62). He had been a user of amphetamines, apparently in order to assist him in working long hours while he endeavoured to overcome his financial problems.

23 The sole ground in Bahn's appeal is materially similar to the sole ground of appeal proposed by Luu and I therefore deal with the grounds together. In each case, the application for leave was ordered to be heard together with the appeal.

24 The grounds assert that the learned sentencing judge erred by failing to properly apply the totality principle, and that his Honour therefore imposed a sentence that was manifestly excessive. The particulars in support of the grounds are somewhat different in each appeal. The particulars in support of the appellant Luu's ground 1 are:

(a) The learned sentencing judge failed to give sufficient weight to circumstances of the offending being:

(i) that the conspiracy and offer to supply counts were of a short duration;

(ii) that the conspiracy count was not consummated or carried into effect;

(iii) that the conspiracy and offer to supply counts formed part of the overriding intention of the appellant to supply drugs;

(iv) the appellant's role as a middle man.

(b) The learned sentencing judge failed to give sufficient weight to the appellant's excellent antecedents being:

(i) his relative youth; and

(ii) not having any prior convictions.

(c) The learned sentencing judge failed to give sufficient weight to the changed circumstances of the appellant since the date of offending being:

(i) ceasing his relationship with former associates;

(ii) completing his tertiary education and employment.

25 The particulars in support of the appellant Bahn's sole ground of appeal are:

(a) The learned sentencing judge failed to properly apply the one transaction/continuing episode rule and ought to have ordered the sentences in both indictments to be served concurrently;

(b) The learned sentencing judge's approach to sentencing on indictment 1761/05 appeared to make no real allowance for the comparative low purity of heroin (18% - 24%) and seems to have been approached on the basis that the offence was analogous to offences where the purity of the drug in question was around 65% or more;

(c) Similarly, in relation to the conspiracy count in indictment 1098/04, where no drug was actually supplied and the purity could therefore never be known, the learned sentencing judge failed to give weight to that fact;

(d) In relation to the offer charge in indictment 1098/04, where the offer was a general offer and no amount was actually specified, the learned judge fell into error by speculating that the offer involved large commercial quantities of the drug and sentenced on the basis that the present case was analogous to cases involving a large commercial quantity when, in fact, neither the quantity nor the purity was known.

26 Because the particulars range over the circumstances of each offence, the personal circumstances of the offenders, and the so-called "one transaction" rule, it is convenient to consider these appeals first by looking at the individual sentences ultimately imposed by his Honour and then by considering whether it was appropriate to order that the sentences in respect of the conspiracy and offering offences be served concurrently with one another, but cumulatively on the 8-year sentence imposed with respect to count 4.

27 In Yazdani v The State of Western Australia [2006] WASCA 221, Martin CJ reviewed a number of cases dealing with the offence of conspiracy to possess or sell prohibited drugs. It is not necessary to mention all of those cases or to repeat all of their particulars here; they are set out at [26] - [32] of his Honour's reasons. It is enough for present purposes to note that the range of sentences cited by his Honour for conspiracy to sell methylamphetamine or conspiracy to possess methylamphetamine with intent to sell or supply ranged between approximately 2 years' imprisonment and 9 years' imprisonment.

28 Examples of cases at the lower end of the range include Scott v The State of Western Australia [2006] WASCA 28 and Ditri v The State of Western Australia [2006] WASCA 283. In Scott, the appellant's sentence was reduced to 2 years' imprisonment for conspiring to possess approximately 2 kg of methylamphetamine with intent to sell or supply. However, it is to be noted that the offender's involvement in the conspiracy was described as "very slight". By contrast, her co-conspirators each received terms of 7 years' imprisonment for their involvement. In Ditri, the court upheld a sentence of 40 months' imprisonment (20 months for each individual count) in respect of an appellant who pleaded guilty to two counts of conspiracy to supply methylamphetamine, and 11 other methylamphetamine-related counts. The appellant was 28 years of age at the time of the offences, had a relatively minor prior record of offending and had taken steps to rehabilitate himself. The offences took place over a period of approximately one month and involved a small amount of methylamphetamine ranging from 0.1 g to 0.5 g. In relation to some counts, the amount potentially involved was not clear.

29 An example of a case at the upper end of the spectrum is Collard v The State of Western Australia [2004] WASCA 297, in which the court upheld sentences of 8 years and 8 months' imprisonment in respect of two conspirators for their involvement in the running of a well-organised family business involved in the supply of methylamphetamine, particularly to young Aboriginal persons. The offence took place over approximately six months. The appellants, both of whom pleaded guilty, had a prior history of offending. One of the appellants was 68 at the time of sentencing. The 9-year sentence of a third conspirator who had not pleaded guilty, but had co-operated, was also upheld.

30 Having regard to these cases, I am not satisfied that the sentence which his Honour would have imposed is outside the appropriate range. The conspiracy involved an agreement to supply a relatively large quantity of methylamphetamine. The sentencing judge found that the appellants were actively involved in attempting to supply the drugs (ts 58, ts 62 - 63).

31 Turning to the appellants' contentions that the conspiracy count was not consummated or carried into effect, I note the learned sentencing judge's finding in relation to Luu that "I had no doubt that had the opportunity arrived that you would have in fact supplied methylamphetamine" (ts 60). His Honour considered Bahn's criminal conduct to be the same as that of Luu and noted "You were clearly willing to hold yourself out as a person who would eventually be able to obtain large amounts of the drug and were prepared to be involved in their ongoing distribution" (ts 63). These findings are not the subject of an express challenge in this appeal, save that the appellant Bahn describes them as "speculation" (AB 14). The facts which I have outlined above, however, demonstrate that his Honour's findings were plainly open to him.

32 Relevant factors in assessing an appropriate sentence for conspiracy include the content, duration, and reality of the conspiracy: Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1, 6 - 8. The learned sentencing judge clearly had regard to all these factors. The content of the conspiracy, and of the offer, were serious; the discussions and attempts to give effect to the conspiracy persisted over some time, while the offer was a renewal or repetition of an earlier offer, and the ultimate supply of heroin demonstrated that the appellants had a capacity to obtain, and a real willingness to obtain, illicit drugs for sale.

33 The appellant Bahn contends in particular (d) that the learned sentencing judge erred by speculating that the offer involved large commercial quantities of ecstasy; rather, it is contended that the offer was "a general offer and no amount was actually specified". I note that in his sentencing remarks to Luu, his Honour stated, "At a meeting on 17 September you did offer to sell a quantity of ecstasy to the undercover officer, the quantity being described as up to 10,000 ecstasy tablets. That forms the basis of the offer to supply" (ts 49).

34 While the amount of ecstasy the subject of the offer in count 3 was not particularised, and the parties may have had no firm view at the time about a specific quantity, it was appropriate for his Honour to sentence on the basis that the offence related to moderate to large commercial quantities of tablets. This inference is supported by both the earlier conversation in which the appellant Luu made reference to 10,000 tablets, and the fact that the remaining counts (save count 2 on indictment 1761) also concerned large commercial quantities.

35 In Ziino v The State of Western Australia [2007] WASCA 222, the offender was convicted following a trial of a number of offences contrary to the Misuse of Drugs Act 198, including one count of supplying 198 ecstasy tablets with a total weight of 55.26 g and a purity between 32% and 38% (count 1) and one count of supplying 199 ecstasy tablets with a total weight of 54.9 g and 37% purity (count 3). The sentencing judge sentenced the offender to 6 years' imprisonment for count 1 and said that the offender should receive the same sentence for count 3, and taking into account totality, the offender would be sentenced to 1 year to be served cumulatively to the 6 years for count 1. The offender was aged 40 at the time of the offences and had owned his own business in the past. He had four previous convictions for relatively minor offences. The sentences were upheld on appeal.

36 In Burke v The State of Western Australia [2007] WASCA 210, the offender was convicted after trial of one count of supplying 300 ecstasy tablets found to weigh 73.2 g and of 33% purity. The offender was 22 years of age at the time of offending and had a substantial amphetamine habit which he was funding by way of drug-dealing. Since being charged, he ceased substance abuse and had attended counselling for depression. The sentence of 3 years and 4 months' imprisonment in relation to this count was not disturbed on appeal.

37 The legislature has provided the same maximum penalty for the offence of offering to supply drugs, as for their supply.

38 The fact that no drugs were supplied is, nevertheless, generally of some relevance, but its relevance will depend upon the reason the offer did not come to fruition. In the present case, that seems to have been due only to an inability to source the drug at the time. Even allowing for the fact that there was, for reasons apparently beyond the control of the offenders, no ultimate supply of the offered drugs, it seems to me that the sentence of 4 years which his Honour would have imposed, was within an appropriate range.

39 In considering the range of sentences for the supply of heroin, I examine first cases concerning small amounts of heroin, in order to determine whether the sentence of 18 months' imprisonment imposed on Luu for the supply of 0.06 g was manifestly excessive. Then I consider cases involving larger amounts of heroin of low to moderate purities to determine the appropriateness of the sentence of 8 years imposed on both appellants for the supply of 1 kg of 18% to 26% pure heroin. The quantity and purity of the drug is not the sole focus in determining the seriousness of the offence, but it is of considerable relevance. As Steytler P observed in Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152:

Other matters, such as the offender's knowledge of the type and amount of the drug, the nature and level of the offender's participation in distribution of the drug and whether the offending was committed solely for commercial gain must also be considered. However, the quantity of the drug involved and its purity remain important considerations ... [52]

40 In Watson v The Queen [2000] WASCA 119, the offender pleaded guilty to a number of offences contrary to the Misuse of Drugs Act 1981, involving amounts ranging from .07 g to 7.092 g of 10% pure to 55% pure heroin. Sentences of 8 months, up to 2 years 8 months' (post-transitional) were upheld on appeal. The offender was a 52-year-old businessman with a depressive illness, intellectual impairment and a vulnerable personality. However, he had a number of prior offences and was described as being at the "upper end" of the drug hierarchy.

41 In Le v The Queen [2004] WASCA 214; (2004) 147 A Crim R 269, the offender was sentenced to a total of 9 years and 3 months' imprisonment in respect of five drug offences. Count 2 related to the sale of 0.47 g of 22% pure heroin and attracted a sentence of 12 months' imprisonment, which was upheld on appeal. The offender was 32 years of age at the time of sentencing with some relevant criminal history. He entered a fast-track plea of guilty. He had become involved in drug dealing in order to support a habit.

42 In Borbil, the offender pleaded guilty to a number of offences including the supply of 0.057 g of heroin with a purity of 20%. The offender was 52 years old and had health problems. He was the sole carer of a young son and sold drugs as a result of financial hardship. He had good references, was remorseful and unlikely to reoffend. The offender was sentenced to 11 months' imprisonment in relation to this count.

43 The offender in Ruich v The State of Western Australia [2006] WASCA 241, received a sentence of 2 years 8 months for his involvement in the supply of 2.02 g of heroin of 36% purity. The offender was 36 years of age and had a long standing addiction to illicit drugs, although the offences appear to have been committed for commercial gain. The offender had a record of relevant prior convictions and the offences were committed while he was on parole.

44 Based on these authorities, it appears to me that the sentence of 18 months' imprisonment imposed on the appellant Luu was at the high end, but not outside of, a sound discretionary range. A sentence at the higher end was justified, in order to reflect the commercial context; the small quantity was to be a "sample" which it was hoped would lead to more substantial supply.

45 In relation to the sentence of 8 years in respect of the supply of heroin the subject of count 4, having regard to the drug trafficking cases cited by McLure J in Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107, it appears that this sentence, imposed on each appellant, was within an appropriate range: see [48] - [50], and Miller J [25] - [29].

46 It is submitted by both appellants that the offences arose from an overriding intention to supply drugs, and therefore that all of the offences should have been dealt with as having been part of a single transaction. A similar contention was the subject of Borbil, in which Steytler P observed (Wheeler and McLure JJA agreeing):

In drug cases, it has been held that the fact that a person is found on one occasion in possession of quantities of drugs with intent to sell or supply does not bring the offences within the one transaction rule: Sinaga-Brisca v The Queen at [28] - [31]; Dixon v The State of Western Australia [2006] WASCA 255 at [10]. In Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473, the Court said (at 489), in a case in which the appellant had simultaneously possessed two different types of drugs with an intent to sell or supply each to another or others, that each possession 'was a separate occasion of potential harm to the community from distribution of that particular drug.'

In my opinion, the same is true of the sale of heroin and the supply of methylamphetamine in the present case. Each of these offences was negotiated separately and each was a separate occasion of potential harm to the community, even though the offences were committed on the same day and involved the same parties. The so-called 'one-transaction rule' is consequently not applicable. [88] - [89]

47 Those observations are applicable to the circumstances of these appeals. The conspiracy and offering offences concerned drugs other than that which was the subject of count 4. Each of the offences concerned, or had the potential to result in, the supply of substantial amounts of prohibited drugs. As has already been mentioned, the sentencing judge made a finding that the drugs would have been supplied had the opportunity arisen.

48 The appellants also submit that the sentences ultimately imposed by his Honour also breached the totality rule by being "crushing", and that the total sentences made insufficient allowance for the personal circumstances of the offenders. It was appropriate to mark the varied criminality of these appellants with sentences which were to some degree cumulative, however.

49 It is clear from his Honour's sentencing remarks that he was aware of, and gave weight to, each offender's personal circumstances and pleas of guilty. He also, correctly, noted the very great weight to be given to general deterrence. Each of the individual sentences was, as I have noted, within an appropriate range. His Honour reduced the otherwise appropriate sentences for the conspiracy and the offer very substantially, for totality reasons. In my view, that reduction was a sufficient allowance for totality considerations.

50 While there is no express ground of appeal directly concerned with the issue of parity, the appellant Bahn's written submissions concerning the "one transaction rule" state:

The ultimate sentence given to the co-offender Luu is identical to the sentence given to the appellant Bahn, however Luu's criminality was greater than that with which Bahn was involved in that it involved four offences ...

The sentencing judge adopted the same approach to partial accumulation and partial concurrency with Bahn's sentence as he did to Luu's sentence, resulting in the same end term.

Overall the lesser criminality of Bahn's three offences was therefore not marked by a lesser sentence for the appellant Bahn. (AB 13)

51 As I have noted, however, the small amount supplied by Luu alone was a "sample", in preparation for the large transaction in which both were involved. The close link between the transactions was marked by the concurrency of Luu's two heroin sentences. It appears, further, that Bahn was the source of that sample. In those circumstances, his Honour was correct to regard the criminality of each offender as relevantly the same.

52 I would grant leave, in respect of both appeals, since it appears to me that the question of the appropriate recognition of totality considerations was arguable. However, I would dismiss each appeal.

BAHN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 40 (28 February 2008)

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BAHN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 40 (28 February 2008)

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