Court of Appeal (WA)|2005-12-22|Before: Smith JA

Benter v The State of Western Australia [2005] WASCA 245 (22 December 2005)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BENTER -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 245

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Sentencing - Possession of drugs with intent to sell or supply - Whether sentence manifestly excessive - Relevance of prior criminal conduct - Turns on own facts

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Aconi v The Queen [2001] WASCA 211

Barnes v The State of Western Australia [2004] WASCA 258

Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51

Delovski v The Queen [2002] WASCA 88

Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19

Koushappis v The Queen [2001] WASCA 18

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Lynch v Wood (1989) 51 SASR 388

Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048

McInerney v The Queen (1986) 42 SASR 111

R v Bellissimo (1996) 84 A Crim R 465

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Cameron v The Queen [2000] WASCA 286

Kirby v The Queen [2003] WASCA 164

Quach v The Queen [1999] WASCA 210

Sinagra-Brisca v R [2004] WASCA 68

Stapleton v The Queen [2004] WASCA 130

1 ROBERTS-SMITH JA: I have had the benefit of reading in draft the reasons for judgment of McLure JA. I agree with those and with her Honour's conclusion. There is, however, one aspect upon which I would elaborate. It concerns the effect of prior criminal convictions.

2 In Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, the minority (Wilson J at 488, Gaudron J at 496 and Deane J at 491) stated that previous convictions cannot justify a sentence longer than the circumstances of the offence, viewed objectively, would warrant. Their Honours held that prior convictions are relevant only to the question whether the case admits of any leniency being shown to the offender. This approach is more restrictive than that of the majority (Mason CJ, Brennan, Dawson and Toohey JJ) in the passage in Veen (No 2) at 477 - 479, quoted by McLure JA.

3 The majority there expressly disavowed that antecedent criminal history was relevant only to an offender's claim to leniency.

4 It might have been thought their Honours' reference to such a history illuminating the offender's "moral culpability" could only have meant it increased the gravity of the offence and hence the penalty which would be proportionate to that offence. But that has not been the approach taken in practice. Thus, in Lynch v Wood (1989) 51 SASR 388, Mohr J said prior convictions were relevant to a submission that penalty should be mitigated in some way, but should not be regarded as an aggravating factor. In Ryan v The Queen [2001] HCA 21; (2001) 179 ALR 193 at [67] Gummow J quoted with approval what King CJ said in McInerney v The Queen (1986) 42 SASR 111 at 113 that the "cardinal rule" is that, whilst good character may operate to reduce a sentence, bad character cannot increase it, because a person is not to be punished again for previous crimes. As Gummow J observed (ibid):

"This rather assumes that 'bad character' is measured by criminal behaviour alone."

5 In his judgment, Callinan J set out (at [181]) the passage from the reasons of the majority in Veen (No 2) and a little later, the following passage from the judgment of the Court (Mason CJ, Wilson, Deane, Dawson and Gaudron JJ) in Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51 at 57 - 58:

"We have already referred to his Honour's observation that 'the literally appalling record' of the applicant increased the seriousness of the offence. If this means no more than that such

a record would make it difficult to view the circumstances of the offence or of the offender with any degree of leniency then, of course, such a remark would be understandable and unobjectionable. It would clearly be wrong if, because of the record, his Honour was intending to increase the sentence beyond what he considered to be an appropriate sentence for the instant offence. Similarly, his Honour's observation that people with the propensity of the applicant to continue to commit driving offences must be 'kept away' for the protection of the public is open to misunderstanding ... Apart from mitigating factors, it is the circumstances of the offence alone that must be the determinant of an appropriate sentence. [emphasis added]"

6 Veen (No 2) was not referred to in Baumer, but that passage appears to indicate a position closer to the minority than to the majority in Veen (No 2).

7 Fox and Frieberg ("Sentencing: State and Federal Law in Victoria", 2nd ed, Oxford University Press) regard Veen (No 2) as holding that proportionate sentencing prohibits enlarging the punishment for the current offence because of previous convictions, beyond what its gravity requires (ibid, at [3,510]). They go on to note that while an adverse record does not operate to increase the sentence appropriate to the current offence, it can inhibit mitigatory benefits by depriving the offender of any credit which he or she might otherwise have received for having a good character and record.

8 Whatever precisely may be drawn from what the majority said in Veen (No 2) about the effect of prior convictions, s 7(2)(b) of the Sentencing Act 1995 (WA) expressly forbids a sentencing court from regarding an offender's criminal history as increasing his or her culpability.

9 It follows that the correct approach, certainly in this State, is that articulated by McLure JA at [27] - [30].

10 MCLURE JA: The applicant applies for leave to appeal against sentence. On 12 October 2004 he was convicted on his plea of guilty of one count of possessing a quantity of methylamphetamine with intent to sell or supply to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).

11 The quantity of methylamphetamine involved was 222.4 grams. When it was found in the applicant's possession, it was contained in eight separate bags. The purity of the methylamphetamine in each of the bags ranged from 53% to 65%. On 4 November 2004 the applicant was sentenced to 7 years' imprisonment for the offence. He was made eligible for parole.

1. The learned sentencing Judge erred in the exercise of his sentencing discretion by imposing a term of imprisonment for the offence that was, in all the circumstances, manifestly excessive.

2. In determining the degree of the applicant's culpability for the commission of the offence, the learned sentencing Judge erred in the exercise of his sentencing discretion by taking account of evidence that the applicant had previously purchased methylamphetamine from the person from whom he had purchased the methylamphetamine the subject of the offence.

13 As he is required to do, the applicant particularises the matters on which he relies to support his claim that the sentence is manifestly excessive. However, it is unnecessary to record them here.

14 The applicant purchased the drugs from his co-accused, Americ Urbano for a purchase price of $40,000. The trial Judge found the applicant to be an essential link in the chain of distribution that would have the consequence of the drugs reaching the street. By that stage they would have been cut down to produce between 1.3 kilograms to 2.2 kilograms, with a street value of between $200,000 to $300,000. As to his level in the hierarchy of distribution, the sentencing Judge's unchallenged finding is that the applicant was somewhere at the midpoint between the original supplier and the person or persons who ultimately would have sold the drugs on the streets. The applicant's profit margin for the transaction was in the order of $4,000.

15 Evidence from surveillance operations of the applicant and his co-accused established that the applicant had previously purchased methylamphetamine from Urbano. Further, the applicant admitted that he went into the business of selling methylamphetamine in order to pay for substantial debts he incurred in a failed business venture. Although the applicant had a methylamphetamine habit, it was not the motivation for the offending.

16 The applicant pleaded guilty to the offence on the morning the trial was scheduled to commence. He was aged 34 years at the time of sentencing, had a reasonably good work history and no relevant prior convictions. Property of the applicant to the value of between $50,000 to $100,000 had been frozen and would, on conviction, be forfeited.

"Your role was an essential link in this process and the present offences [sic] I have noted was not isolated. Accordingly I consider that your degree of culpability was relatively high. If you had pleaded guilty when you were first charged you would have been sentenced under the regime that applied prior to the recent amendments to the Sentencing Act. In my view, having regard to all of the matters I have mentioned as well as the fact that you have lost assets as a result of being declared a drug trafficker, the starting point under the old system would have been in the vicinity of 12 years.

From that you would have been entitled to a discount for what ultimately what [sic] turned out to be a very late plea of guilty on the first day of trial. In the end I believe that you would have received a sentence of not less than 10 and a half years. Under the Sentencing Act as amended, I'm not [sic] required to impose a sentence which is two thirds of what you would have previously received. I accordingly sentence you to seven years' imprisonment ..."

18 The legislation referred to by the sentencing Judge is the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("Sentencing Amendment Act").

19 An appellate court is only entitled to intervene if a material error of law or fact is discerned in the sentencing Judge's reasons or if error can be inferred because the sentence is manifestly excessive (Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665).

20 To determine whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by the law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender: R v Chan (1989) 38 A Crim R 337 at 342.

21 General and personal deterrence are weighty considerations in sentencing for drug trafficking offences and the weight to be given to personal matters such as a person's good antecedents and matters going to the prospects of rehabilitation are of reduced significance: R v Bellissimo (1996) 84 A Crim R 465 at 469.

22 Relevant considerations in the exercise of the sentencing discretion for drug trafficking offences include (without intending to be exhaustive) the nature, quantity and purity of the drug, the offender's knowledge of those matters and the nature and level of the offender's participation in the distribution of the drug: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584.

23 The applicant contends that the term of 7 years' imprisonment is too long. The thrust of the submissions put on his behalf were to the effect that the sentencing Judge's starting point of 12 years was too high and should have been in the range of 9 to 11 years; that having regard to what was said to be appropriate percentage deductions for the plea of guilty and forfeiture of assets, the sentencing range is reduced to 5 to 6 years. This mathematical approach of subtracting specific amounts for particular mitigating factors has been criticised by the High Court in Wong (supra) and Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048 at [39] per Gleeson CJ, Gummow, Hayne and Callinan JJ. It is an improper fetter on the exercise of the sentencing discretion and is based on the inaccurate assumption that there is a single correct sentence. In order to be successful, the applicant must establish that the sentence of 7 years is manifestly excessive. In determining whether a sentence is manifestly excessive (in the absence of express error), the steps by which the trial Judge reached his conclusion as to the appropriate sentence are irrelevant. The central question is whether, having regard to all relevant sentencing considerations, the sentence is plainly unjust or unreasonable The yardsticks by which that assessment is to be made are set out in Chan. One of them is the standards of sentencing customarily observed with respect to the relevant crime. When considering that matter, it is necessary to use a common standard, be it the sentences that would have been imposed before or after the commencement of the Sentencing Amendment Act. At this stage it is still convenient to use pre-amendment sentences for comparison purposes.

24 I conducted a review of a number of the relevant authorities in Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 at [48] - [49]. I do not intend to repeat that information here. In addition to the cases considered in Tulloh, the applicant refers to Barnes v The State of Western Australia [2004] WASCA 258 in which the offender was convicted after trial of one count of possession of methylamphetamine with intent to sell or supply to another. In that case there was a significant delay between the commission of the offence and sentencing during which there had been demonstrated rehabilitation. It does not support the applicant's case.

25 Having regard in particular to the nature, weight and purity of the drug the subject of the conviction, the applicant's knowledge of those matters, his position in the chain of distribution, his motivation for the offence and that it was not an isolated transaction, I am satisfied that a sentence of 101/2 years under the former system (now 7 years) is consistent with standards of sentencing customarily observed and well within the range of a sound sentencing discretion: see in particular, Aconi v The Queen [2001] WASCA 211, Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19, and Delovski v The Queen [2002] WASCA 88. I would dismiss this ground of appeal.

26 The applicant contended that the sentencing Judge in effect sentenced the applicant for a prior uncharged act of drug trafficking in addition to the offence for which he was convicted. As I understand the argument, the suggestion is the trial Judge sentenced the applicant on the basis that his prior conduct had aggravated the offence for which he was being sentenced. In support of the submission, the applicant relies on statements of the sentencing Judge that there was "evidence from the telephone intercepts that [the applicant had purchased methylamphetamine from Urbano before]", that it was "most significant that the transaction the subject of the present offence was not isolated" and stated:

"Your role was an essential link in this process and the present offences [sic] I have noted was not isolated. Accordingly I consider that your degree of culpability was relatively high".

27 I accept that the sentencing Judge would have erred if he had treated the prior conduct as aggravating the offence. Section 7(2) of the Sentencing Act 1995 (WA) provides that an offence is not aggravated because the person has a prior record. That must also be the case where a person has admitted to prior criminal conduct. The term "aggravating factors" is defined in s 7(1) of the Sentencing Act to mean factors which, in the court's opinion, increase the culpability of the offender.

28 The Court in Koushappis v The Queen [2001] WASCA 18 concluded that these provisions of the Sentencing Act do not impinge upon what was said by the majority of the High Court in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. Mason CJ, Brennan, Dawson and Toohey JJ said (at 477 - 478):

"... the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: ... The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties."

29 Prior criminal conduct is also relevant to an offender's character. The mitigatory weight to be given to good character would be reduced.

30 My understanding of the effect of s 7(1) and (2) of the Sentencing Act in light of the remarks of the High Court in Veen is as follows: prior criminal conduct cannot aggravate the offence for which the offender is being sentenced; the sentence must be proportionate to the gravity of the offence and the circumstances of its commission; within the limits of a proportionate sentence for the offence, a person's prior criminal conduct is relevant when considering the sentencing aims (punishment, deterrence and the protection of society) and the offender's character with the result that, all other things being equal, a person with a prior criminal history may (and usually will) receive a higher sentence than a person with no such history.

31 With that background, I return to the question whether the sentencing Judge sentenced the applicant for a prior uncharged act or on the basis that his conduct aggravated the offence. The sentencing Judge's references to the prior conduct as a relevant factor in the exercise of his sentencing discretion do not support the applicant's contention. However, the sentencing Judge's conclusion that the applicant's degree of culpability for the offence was relatively high was based on a combination of the prior transaction, which does not aggravate the offence, and the applicant's role in the distribution of the drugs the subject of the conviction, which does aggravate the offence. That approach suggests the sentencing Judge may have treated the prior transaction as aggravating the offence. However, assuming that to be so, it does not follow that the appeal must be allowed. This Court may only allow an appeal if, in its opinion, a different sentence should have been imposed (s 689(3) of the Criminal Code (WA); s 31(4) of the Criminal Appeals Act 2004 (WA)).

32 The applicant's prior transaction is relevant to his character and the sentencing aims referred to in Veen (supra), primarily that of personal deterrence. That is of particular relevance having regard to the commercial motivation for the commission of the charged offence. Giving weight to those considerations and the other relevant factors to which I have referred, I am not satisfied that a different sentence should have been imposed. Accordingly, I would grant leave to appeal and dismiss the appeal.

Legislation Amendment and Repeal Act 2003

Benter v The State of Western Australia [2005] WASCA 245

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Benter v The State of Western Australia [2005] WASCA 245 (22 December 2005)

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