Court of Appeal (WA)|2011-07-04|Before: Pullin JA

MEDAN -v- THE QUEEN [2011] WASCA 142 (4 July 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MEDAN -v- THE QUEEN [2011] WASCA 142

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Conspiracy to traffic in a controlled drug, namely MDMA - Quantity a commercial quantity - Appellant sentenced to 14 years' imprisonment with a non-parole period of 8 years 6 months - Parity principle - Whether appellant denied procedural fairness at the sentencing hearing - Sentencing discounts for early pleas of guilty to federal offences - Whether head sentence and non-parole period manifestly excessive

Criminal Code (Cth), s 11.5(1), s 302.1(c), s 307.1(1)

Billing v The State of Western Australia [No 2] [2008] WASCA 11

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 273 ALR 324

International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319

Jardim v The State of Western Australia [2011] WASCA 83

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Law v The State of Western Australia [2009] WASCA 193

Ljuboja v The Queen [2011] WASCA 143

Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149

P v The Queen [2003] WASCA 180

Pedersen v The State of Western Australia [2010] WASCA 175

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

2 BUSS JA: On 3 September 2009, the appellant was convicted in the Supreme Court before Jenkins J, on his plea of guilty, on one count in an indictment.

3 The count alleged that between 1 July 2007 and 20 May 2008 at Perth and elsewhere in Australia, the appellant, Rade Ljuboja, Dimitrios Papadimitriou and Fabian Quaid conspired together with Vaso Ulic and others to traffic in a controlled drug, namely MDMA, and that the quantity was a commercial quantity, contrary to s 11.5(1) and s 302.1(1) of the Criminal Code (Cth) (the Code).

4 On 26 October 2009, the sentencing judge heard the appellant's plea in mitigation.

5 On 23 March 2010, the appellant was sentenced to 14 years' imprisonment. The sentencing judge fixed a non-parole period of 8 years 6 months. The sentence was backdated to commence on the date of the appellant's arrest, namely, 19 May 2008.

6 The appellant appeals to this court against her Honour's sentencing decision.

7 Mr Quaid was tried jointly with Mr Papadimitriou before Jenkins J and a jury between 2 November 2009 and 16 December 2009 on the conspiracy offence. On 16 December 2009, they were found guilty. On 4 September 2009, Mr Ljuboja pleaded guilty to the conspiracy offence and another count which alleged that between 1 March 2008 and 18 April 2008 at Perth, he imported a border controlled drug, namely MDMA, and that the quantity imported was a commercial quantity, contrary to s 307.1(1) of the Code. At all material times, Mr Ulic resided in Montenegro. He was never charged.

8 On 23 March 2010, the appellant's co-offenders were sentenced with the appellant. The co-offenders received the following sentences:

(a) Mr Ljuboja: 25 years' imprisonment on each of the conspiracy offence and the importation offence, to be served concurrently, with a single non-parole period of 16 years;

(b) Mr Quaid: 17 years' imprisonment with a non-parole period of 10 years 6 months; and

9 The sentencing judge backdated the sentence imposed on each of Mr Ljuboja, Mr Quaid and Mr Papadimitriou to commence on the date of his arrest.

10 In July 2007, investigations by law enforcement authorities revealed that Mr Ljuboja, in conjunction with Mr Ulic, was planning to import MDMA, in powder form, into Australia. They intended, after importation, to convert the powder into ecstasy tablets and distribute them for sale in Australia.

11 The Crown's case was that in July 2007, Mr Ulic sought the assistance of Mr Quaid and Mr Papadimitriou, and Mr Ljuboja sought the assistance of the appellant, to implement the plan made between Mr Ulic and Mr Ljuboja.

12 It was alleged by the Crown that on 19 July 2007, Mr Ljuboja met with Mr Quaid in Subiaco where they agreed that upon the MDMA powder being imported, ecstasy tablets would be produced and distributed for sale. Mr Ljuboja was to oversee the importation of the powder and, with the appellant, arrange for its conversion into tablets. Mr Quaid was to arrange for the distribution of the tablets. Mr Papadimitriou's role was to assist Mr Ljuboja.

13 Mr Papadimitriou located a granny flat at 299 Morley Drive East, Lockridge, in which the MDMA powder, a pill press and other materials required for the conversion of the powder into tablets were stored. He also arranged for the transportation of the pill press from Melbourne to Perth.

14 The appellant provided the pill press to Mr Papadimitriou in Melbourne. The appellant's role was to convert the MDMA powder into ecstasy tablets. The pill press was to be used for this purpose. He was to obtain the chemicals and other ingredients to be combined with the MDMA to make the tablets. Also, he was to give support, as necessary, to Mr Ljuboja.

15 The investigations of the law enforcement authorities indicated that the MDMA powder was to be imported into Australia on the cargo ship, MSC Monica. On 7 April 2008, the vessel docked in Port Botany. On 16 April 2008, it arrived in Fremantle.

16 In the early hours of 17 April 2008 at Fremantle, about 60 kg of MDMA powder was unloaded by unknown persons from the MSC Monica to a small vessel alongside it. The small vessel then returned to shore. About 10 kg of the drug was taken immediately by others involved in the importation. Mr Ljuboja collected the balance and took it to a house in Balga where he was staying with a friend. On or about 28 April 2008, Mr Ljuboja transported the powder to the granny flat.

17 On 8 May 2008, police, acting covertly, executed a search warrant at the granny flat. They found and removed the MDMA powder, which was inside large plastic bags concealed in two black sports bags. The drug was replaced with an inert substance.

18 On the afternoon of 19 May 2008, Mr Ljuboja, the appellant and Mr Papadimitriou were arrested in front of the granny flat. Police executed another search warrant. An inspection of the granny flat disclosed the following:

(a) a pill press had been placed in the eastern side of the room, plugged into the wall, and the electricity turned on;

(b) the large plastic bags containing the inert substance had been removed from the sports bags and placed on the ground alongside a wall and near the pill press;

(c) some of the inert substance had been removed from the large plastic bags and separated into a number of small transparent snaplock bags of about one kilogram in weight;

(d) one unsealed bag was located near a set of scales on a table next to the pill press; and

(e) two sealed bags were located on shelving near the table.

19 Police seized, amongst other things, the inert substance, various binding and cutting agents, the pill press, $12,700 in cash, and mobile telephones.

20 On 21 May 2008, Mr Quaid was arrested in Sydney.

21 The MDMA powder seized by the law enforcement authorities from the granny flat weighed 44.16 kg. The purity of the 44.16 kg averaged about 80%. The powder seized was about 70 times the quantity prescribed by law as the commercial quantity of MDMA.

22 On 23 March 2010, the sentencing judge made detailed sentencing remarks.

23 Her Honour said that the appellant's plea of guilty, although not entered at the earliest opportunity, was 'fairly indicative of true remorse and a willingness to facilitate the course of justice' [3] - [4]. But the appellant admitted to a lesser role in the conspiracy than her Honour was satisfied that he had played and, in consequence, the plea did not indicate a complete acceptance of responsibility for the whole of his offending [4]. Nevertheless, her Honour decided that the appellant should receive a substantial reduction in his sentence on account of his plea [4].

24 The sentencing judge found that the appellant's role in the conspiracy was to facilitate all that was necessary to convert the MDMA powder into ecstasy tablets. He was Mr Ljuboja's 'main assistant and confidant'. The appellant was to use a pill press, which he provided, to manufacture the tablets [24], [117].

25 The appellant was aged 30 years at the time of sentencing. He was born in Bosnia Herzegovina. His father is Serbian and his mother Croatian. He was about 13 when the civil war broke out. During the war he was frequently exposed to violence. His father refused to serve in the Serbian army. The appellant and his family immigrated to Australia as refugees. In 2000 they were granted citizenship [109].

26 As a teenager, the appellant was a talented soccer player. Some time after arriving in Australia, he played with a team in the Victorian State league, winning the team and competition best and fairest player under 21 years of age. He completed high school in Belgrade. In Australia, he commenced an engineering degree but abandoned the course after two years. He was struggling as a result of his limited skills in English. Also, he felt that he did not 'fit in'. He commenced employment as a plasterer while also receiving Centrelink payments [111].

27 The appellant ceased employment as a plasterer in 2006. Thereafter, he supported himself from accumulated savings, periodic Centrelink payments and income derived from manufacturing what he alleged were 'fake' ecstasy tablets. He said that he would manufacture tablets using innocuous substances and sell them to drug dealers who, he believed, mixed them with tablets containing drugs, and then sold them [112].

28 The appellant made available the pill press which was transported from Melbourne to Perth for use in the commission of the conspiracy offence. The pill press had traces of illicit drugs on it when examined by the police. The appellant's explanation was that he lent the pill press to others from time to time so they could manufacture illicit drugs. Mr Ljuboja was a drug dealer with whom the appellant was associated. He made 'fake' ecstasy tablets for him [114].

29 The sentencing judge found that the appellant did not have an administrative or managerial role in the conspiracy. His role was to provide 'non-financial support and succour' to Mr Ljuboja, to convert the MDMA powder into ecstasy tablets, and to assist with the renovation of the granny flat [116].

30 Her Honour said that it was not until she heard the evidence at the trial of Mr Quaid and Mr Papadimitriou that she appreciated the importance of the appellant's role as a 'sounding board, confidant, and source of much support for Ljuboja throughout the first months of 2008' [116]. Her Honour said that this role, coupled with his roles as general handyman and manufacturer, meant that the appellant played 'an important, even indispensible role' in the conspiracy [116].

31 The Crown did not assert that the appellant was to profit from his involvement in the conspiracy [117]. However, her Honour made this finding:

[G]iven that [the appellant] was reliant upon his activities in making the tablets to support himself, that he provided the pill press and put himself at considerable risk in assisting Ljuboja, common sense tells me that it is likely that he would have received some remuneration from Ljuboja once the tablets had been sold [117].

32 It was asserted on the appellant's behalf that he agreed to join the conspiracy 'out of loyalty to Ljuboja and respect for him as an older person' [114]. Her Honour did not accept that this motivation was mitigating. She said that whatever the appellant might have believed initially, by March 2008 he must have been under no illusions that Mr Ljuboja was the Australian principal in a major drug trafficking offence, and yet the appellant did nothing either to distance himself from Mr Ljuboja or to alert the authorities [118]. Her Honour found that the appellant was a voluntary, willing and active participant in the conspiracy from at least early 2008 until his arrest [119].

33 The sentencing judge said that the appellant was to be given credit for 'the matter referred to at pars 8 - 17 of his written submissions'. In her Honour's view, this matter was an indication of the appellant's remorse and willingness to facilitate the course of justice. It also indicated that he had good prospects of rehabilitation [121].

34 A pre-sentence report and a psychological report were obtained in relation to the appellant. Her Honour said:

The psychological report notes that [the appellant] has some treatment needs because he experiences some symptoms of post-traumatic stress from his experiences in the war. The psychologist was of the view that [the appellant's] reasoning skills, poor problem solving and coping strategies should be addressed within treatment. Whilst in custody [the appellant] has completed a number of courses. This is to his credit [122].

35 The sentencing judge said that relevant mitigating factors were the appellant's early plea of guilty, 'the matter referred to at pars 8 - 17 of his written submissions', the absence of a substantial commercial motive for his offending, the effect of the circumstances of his childhood on the formation of his character, and his good prospects of rehabilitation [123].

36 The appellant relies on eight grounds of appeal.

37 Ground 1 alleges that the sentencing judge erred by giving 'inadequate regard' to the parity principle, in the context of the sentences imposed on Mr Quaid and Mr Papadimitriou.

38 Ground 2 alleges that her Honour failed to accord procedural fairness to the appellant in that he was not provided with an opportunity to respond to evidence which her Honour found to be an 'aggravating consideration'.

39 Ground 3 alleges that her Honour erred in not finding that the appellant pleaded guilty at the first available opportunity.

40 Ground 4 alleges that her Honour erred in that it was not open to her to be satisfied beyond reasonable doubt that the appellant would benefit financially from the offence.

41 Ground 5 alleges that her Honour erred in finding that the appellant had not shown complete remorse.

42 Ground 6 alleges, in substance, that her Honour erred in not giving 'sufficient weight' to the matter referred to at pars 8 - 17 of the appellant's written submissions before her Honour.

43 Ground 7 alleges that the sentence was in all the circumstances manifestly excessive.

44 Ground 8 alleges that, in all the circumstances of the case, the totality of errors alleged in grounds 1 - 7 has resulted in a sentence that was 'excessive'.

45 On 26 July 2010, Mazza J ordered that the application for leave to appeal be referred to the hearing of the appeal.

46 Ground 1 asserts that there was an infringement of the parity principle in the sentencing of the appellant, Mr Quaid and Mr Papadimitriou.

47 In Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, Gibbs CJ said in relation to the principle of parity of sentencing as between co-offenders:

The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account (609).

48 The object of the principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a justifiable sense of grievance. See Lowe (623) (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 302 - 303 (Dawson & Gaudron JJ). The application and effect of relevant sentencing principles must be taken into account in determining whether there is a justifiable sense of grievance. See Jardim v The State of Western Australia [2011] WASCA 83 [12] - [13] (McLure P, Pullin JA agreeing).

49 The parity principle is subject to the qualification that parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] - [12] (Steytler P, McLure JA agreeing).

50 In the present case, the sentencing judge sentenced each of the appellant, Mr Ljuboja, Mr Quaid and Mr Papadimitriou.

51 The disparity in sentencing outcome between the appellant on the one hand, and Mr Quaid and Mr Papadimitriou on the other, must be viewed in the context of the major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction. These considerations are general and personal deterrence. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.

52 The sentencing judge's detailed sentencing remarks, made on 23 March 2010, reveal that she thought the objective criminality of the appellant, Mr Quaid and Mr Papadimitriou was similar, but three mitigatory factors required that the appellant receive a lower head sentence and non-parole period than the others.

53 The three mitigatory factors which differentiated the appellant from Mr Quaid and Mr Papadimitriou were these. First, the appellant entered an early plea of guilty, was remorseful and had good prospects of rehabilitation, whereas Mr Quaid and Mr Papadimitriou were convicted after a trial, did not evince remorse and their prospects of rehabilitation were, at best, doubtful. Secondly, the appellant had the benefit of the matter referred to at pars 8 - 17 of the appellant's written submissions to her Honour, whereas Mr Quaid and Mr Papadimitriou did not have the benefit of any matter of that kind. Thirdly, there was an 'absence of substantial commerciality' in the appellant's offending, but this could not be said about the offending of Mr Quaid and Mr Papadimitriou.

54 I consider the importance of the appellant's early plea, remorse and good prospects of rehabilitation, the matter referred to at pars 8 - 17 of his written submissions and the absence of substantial commerciality, and the discount that should have been allowed for these factors, in the context of grounds 6 and 7 of the appeal.

55 In my opinion, for the reasons I give in the course of dealing with grounds 6 and 7, the sentences imposed on Mr Quaid and Mr Papadimitriou were such as to give rise to a justifiable sense of grievance on the appellant's part. The mitigation in the appellant's early plea, remorse and good prospects of rehabilitation, the matter referred to at pars 8 - 17 of his written submissions to her Honour and the absence of substantial commerciality were not properly recognised in the sentencing disparity.

57 Ground 2 is based on the sentencing judge's observation that it was not until she heard the evidence of Mr Quaid and Mr Papadimitriou at the trial that she appreciated the importance of the appellant's role as a 'sounding board', confidant, and source of much support for Mr Ljuboja throughout the first months of 2008 [116].

58 Procedural fairness lies at the heart of the judicial function. See International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54] (French CJ), [141] - [143] (Heydon J).

59 Fairness is essentially a practical concept. It is not abstract in nature. The law of procedural fairness is concerned to avoid practical injustice. See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ). The requirements of procedural fairness are flexible. Proceedings where procedural fairness must be accorded may be organised to ensure fairness having regard to the nature and circumstances of the particular proceeding, including the relevant facts, the statutory context, the matters in dispute, the circumstances of the particular parties whose interests may be affected, and the legal representation of parties before the relevant body or tribunal. See Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [56] (Buss JA).

60 The appellant and the Crown filed and served written submissions before the hearing of his plea in mitigation on 26 October 2009.

61 The Crown's written submissions dated 22 October 2009 said that the appellant's role in the offending 'is accepted as being a lesser one than' the role of Mr Ljuboja, Mr Quaid and Mr Papadimitriou [23]. The submissions asserted elsewhere, however, that the appellant's role was nevertheless 'paramount to the success of the conspiracy and of great importance to' Mr Ljuboja [19].

62 The appellant's written submissions dated 23 October 2009 asserted that the appellant's role 'in the overall transaction is at the bottom of the hierarchy' [18].

63 At the hearing on 26 October 2009, counsel representing the Crown and counsel for the appellant made extensive oral submissions.

64 Counsel for the appellant asserted that the appellant was 'definitely at the bottom of the hierarchy' (ts 228).

65 Counsel representing the Crown said that the appellant's offending was 'extremely serious'. She added that 'his role was as a lesser player but no less an essential player in the operation' (ts 255). She noted that 'even the lesser players are important because without them these offences cannot be carried through to fruition' (ts 256).

66 Later, however, in her submissions, counsel representing the Crown said:

It is accepted that this offender was at a lower level than his co-conspirators but it does not necessarily put him at the level of, as it were, the hired help, just simply moving some stuff from the pallets to the van or carrying a small parcel from X location to Y location. The involvement of this offender, we would say, was of - at a significant level, although not as significant as that of the others. He clearly was, your Honour, obviously, in chronological terms, the most junior member and, as I think earlier on we quote, or I quoted from one of the calls where he is referred to as 'the boy'. My recollection is he's also referred as 'the young one' in other exchanges (ts 257 - 258). (emphasis added)

67 In my opinion, the sentencing judge's observation about her realisation of the importance of the appellant's role, made during her sentencing remarks on 23 March 2010, was, in substance, a finding that the appellant's objective criminality (as measured by his role in the conspiracy) was similar to that of Mr Quaid and Mr Papadimitriou. This is confirmed by the extent of the discount given to the appellant for his early plea, the matter referred to at pars 8 - 17 of his written submissions to her Honour and the absence of substantial commerciality, as embodied in his head sentence and non-parole period, compared to the head sentences and non-parole periods of Mr Quaid and Mr Papadimitriou.

68 Her Honour's observation and finding were based, to a material extent, on evidence adduced at the trial of Mr Quaid and Mr Papadimitriou. As I have mentioned, their trial ran between 2 November 2009 and 16 December 2009. That is, the trial occurred after the hearing of the appellant's plea of guilty on 26 October 2009.

69 Her Honour's observation and finding placed the appellant's objective criminality at a materially higher level than that submitted by counsel representing the Crown at the plea of guilty. It is true that counsel emphasised that the appellant's role was essential to the success of the illegal enterprise. This submission was, no doubt, correct. Each of the conspirators had an important and indispensible role to play. However, on a fair reading of counsel's submissions as a whole, the Crown accepted that the appellant's objective criminality was materially less than that of Mr Quaid and Mr Papadimitriou.

70 The appellant did not have an opportunity to contradict or address the substance of the trial judge's proposed observation and finding about the importance of his role. In the circumstances, practical fairness and justice required that the appellant be given notice of the proposed observation and finding, and the material on which it was based, and an opportunity to be heard on the issue.

72 Ground 3 asserts that the sentencing judge made an error in not finding that the appellant pleaded guilty 'at the first available opportunity'.

73 On 19 May 2008, the appellant was arrested. On 18 February 2009, he was committed from the Magistrates Court to the Supreme Court. Originally, he was committed on alternative charges (being one count of attempting to possess a commercial quantity of MDMA, one count of attempting to traffic a commercial quantity of MDMA and one count of possessing equipment for manufacturing a controlled drug) to the count on which he pleaded guilty. On 14 April 2009, the Crown filed a substituted indictment with the count to which the appellant pleaded guilty as the sole charge. On 3 September 2009, he pleaded guilty to that count.

74 The Crown's written submissions before the sentencing judge accepted that the appellant had 'indicated a plea of guilty as early as December 2008 and has thereby facilitated the course of justice by pleading to the indictment' [8].

75 The appellant's written submissions before her Honour asserted that the appellant's plea of guilty on 3 September 2009 was 'taken at the earliest available opportunity, given that the indictment was not signed until 14 April 2009' and that the appellant had 'indicated from the outset a preparedness to plead guilty' [3].

76 Counsel for the appellant submitted at the hearing on 26 October 2009 that 'it's an early plea and earliest in the sense that it's the earliest reasonable opportunity after being able to agree the facts' (ts 224). Later, counsel reiterated that the appellant 'pleaded guilty at the first reasonable opportunity after the facts were agreed' (ts 252).

77 There is a material distinction between an accused pleading guilty at the first reasonable opportunity, and an accused pleading guilty at the first reasonable opportunity after the facts have been agreed. Ordinarily, an accused who pleads guilty at the first reasonable opportunity (without any facts having been agreed) should be given a greater discount than an accused who does not plead until after the facts have been agreed.

78 A plea of guilty to an offence necessarily involves an admission by the offender of each of the elements of the offence, including all of the essential facts necessary to constitute the offence. A plea of guilty does not, however, constitute an admission of all of the facts stated in the Crown's depositions or witness statements. It is necessary for the sentencing judge to evaluate the facts, consistently with the plea, to determine the offender's culpability and decide upon an appropriate sentence. Accordingly, it is always open to an offender who has pleaded guilty to apply for a trial of issues in relation to any facts relevant to the sentencing outcome that are not the essential facts necessary to constitute the offence. See Law v The State of Western Australia [2009] WASCA 193 [25] - [34] (Buss JA, McLure & Pullin JJA agreeing).

79 In the present case, her Honour found that the appellant's plea of guilty was not entered at the earliest opportunity [3]. This finding was reasonably open. The appellant did not plead guilty until after the facts were agreed, even though he had indicated a willingness, as early as December 2008, to plead guilty. Her Honour did, however, accept that the appellant's plea was 'fairly indicative of true remorse and a willingness to facilitate the course of justice' and that he should receive a substantial reduction in his sentence on account of his plea [4].

81 Ground 4 alleges that the sentencing judge erred in finding that it was likely that the appellant would have received some remuneration for his participation in the conspiracy.

82 It was submitted on the appellant's behalf that her Honour was in error in that involvement in illicit drug dealing for a commercial purpose is an aggravating factor, and it was not open to her Honour to be satisfied beyond reasonable doubt that the appellant's participation was for a commercial purpose.

83 In my opinion, the sentencing judge did not find that the appellant's motive for joining the conspiracy was, wholly or partly, financial gain. Indeed, her Honour accepted that his motive was to assist Mr Ljuboja [118]. Further, her Honour accepted that a mitigating factor in the appellant's offending was 'the absence of substantial commerciality' [123].

84 The sentencing judge merely noted that common sense told her that it was likely the appellant would receive some remuneration for his involvement in the criminal enterprise. This finding was reasonably open on the basis of her Honour's other (unchallenged) findings that the appellant was 'reliant upon his activities in making the tablets to support himself' and that 'he provided the pill press and put himself at considerable risk in assisting Ljuboja' [117]. She did not find that the appellant's offending was aggravated by the likelihood of some remuneration.

86 Ground 5 alleges that the sentencing judge erred in finding that the appellant had not shown complete remorse. It appears, however, from the submissions made on the appellant's behalf that he contends that her Honour erred in not finding him to have completely accepted responsibility for his offending.

87 The appellant pleaded guilty, was remorseful and had good prospects of rehabilitation.

88 Also, he was entitled to credit for the matter referred to at pars 8 - 17 of his written submissions to her Honour.

89 Further, he accepted the facts relied on by the Crown at the hearing of the plea of guilty. This necessarily followed as a result of the material facts having been agreed before the plea was made.

90 Counsel for the appellant 'volunteered' that the appellant had previously used the pill press to make 'fake' ecstasy tablets, but this was for the purpose of explaining why he had arranged for the pill press to be used in the conspiracy. The 'volunteering' of this information did not indicate remorse because the appellant thought there was nothing wrong with making 'fake' ecstasy tablets. The evident purpose of 'volunteering' the information was to negative a more damaging inference to the effect that his provision and use of the pill press demonstrated a history of involvement in illicit drug dealing.

91 During the appellant's video record of interview with police he made only partial admissions.

92 The Crown's written submissions before the sentencing judge asserted that the appellant's role in the conspiracy offence included:

converting the MDMA powder into ecstasy tablets (this was the offender's principal role);
making samples of ecstasy tablets from the MDMA powder for approval prior to going into full production;
travelling between Melbourne [and] Perth to make those samples;
offering the co-offender LJUBOJA alternative plans when initial plans were troublesome;
assisting in the renovations of the safehouse to enable the MDMA powder to be converted into ecstasy tablets;
negotiating with other parties to secure a pill press;
obtaining the chemicals and other ingredients to be combined with the MDMA to make the ecstasy tablets;
providing the pill press and chemicals to his co-conspirator PAPADIMITRIOU for the purpose of transporting them to Western Australia from Melbourne; and
encouraging and supporting the co-offender LJUBOJA throughout duration of the conspiracy.

93 The submissions made on behalf of the appellant at the sentencing hearing focussed primarily on the appellant's role in relation to the manufacture of the ecstasy tablets. Limited reference only was made to his role in supporting Mr Ljuboja.

94 It was open to the sentencing judge to find that the appellant had not completely accepted responsibility for his offending.

96 Ground 6 asserts, in substance, that the sentencing judge erred in not giving 'sufficient weight' to the matter referred to at pars 8 - 17 of the appellant's written submissions before her Honour.

97 An alleged failure by a sentencing judge to give any or adequate weight, or a complaint that a sentencing judge gave excessive weight, to a relevant sentencing consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26]; Pedersen v The State of Western Australia [2010] WASCA 175 [37] (Buss JA, McLure P & Mazza J agreeing). A complaint about the attribution of weight to a particular sentencing factor therefore does not ordinarily give rise to an error that enlivens an appellate court's jurisdiction to intervene.

98 Ground 6, as drawn, does not make out a sentencing error in that there is no reasonable basis for concluding that the weight which the sentencing judge apparently accorded to the matter referred to at pars 8 - 17 of the appellant's written submissions before her Honour amounted to a failure to exercise the sentencing discretion.

99 However, the matter referred to at pars 8 - 17 is relevant in determining the merits of ground 1 (in relation to the parity principle) and ground 7 (in relation to manifest excess).

100 I will deal with the matter referred to at pars 8 - 17 in the schedule to these reasons.

101 Ground 7 asserts that the sentence imposed on the appellant was, in all the circumstances, manifestly excessive. It is apparent from the appellant's submissions that he challenges both the head sentence and the non-parole period.

102 By s 16A(1) of the Crimes Act 1914 (Cth), a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. Section 16A(2) provides that, in addition to any other matters, the court must take into account such of the matters specified in the subsection as are relevant and known to the court.

103 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.

104 A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It does not assert a specific error.

105 It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

106 In my reasons in Ljuboja v The Queen [2011] WASCA 143, I consider, in the context of an appeal against sentence by Mr Ljuboja, the maximum penalty for the conspiracy offence, comparable cases, and the purpose of a non-parole period and the considerations relevant to fixing a non-parole period. It is unnecessary to reproduce those observations in these reasons.

107 In the present case, the nature and gravity of the offence (including the weight, purity and value of the MDMA), and the issues of general deterrence and appropriate punishment, were of particular importance in the sentencing process.

108 The MDMA powder would have produced at least 350,000 tablets [82]. It would have been sold for between $14 million and $24 million [82].

109 The appellant was aware that the conspiracy involved a very large importation. He saw and handled the MDMA powder in the course of making samples. By the time he provided the pill press to Mr Papadimitriou in Melbourne, he must have been aware of the magnitude of the enterprise.

110 Although the appellant was at a lower level in the hierarchy than Mr Ljuboja, Mr Quaid and Mr Papadimitriou, his participation was extensive, important and ongoing. By virtue of the nature and extent of the appellant's participation, his objective criminality was similar to that of Mr Quaid and Mr Papadimitriou.

111 The significant mitigating factors in the appellant's offending were his early plea of guilty, remorse and good prospects of rehabilitation, and the matter referred to at pars 8 - 17 of the appellant's written submissions to her Honour. The absence of significant commerciality was, to some extent, mitigating, but it was of greater relevance in the application of the parity principle. The other matters relied on by the appellant for mitigation carried very little weight.

112 By s 16A(2)(g) of the Crimes Act, the matters to which a court must have regard when passing sentence on a person for a federal offence include the fact that the person has pleaded guilty to the offence.

113 Fast-track pleas of guilty in this State ordinarily attract a reduction in sentence of somewhere between 20% and 35%, depending on the circumstances. In particular cases, the reduction might be less (where, for example, the plea is late or there is no real remorse) or more, but the reduction should not be so excessive as to undermine the accusatorial aspect of the criminal justice system. The amount of the reduction is discretionary. See Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [37] (Steytler P, Wheeler, McLure & Buss JJA).

114 In R v Bugeja [2001] NSWCCA 196, Hodgson JA (James & Adams JJ relevantly agreeing) expressed the view that the range of discounts for early pleas of guilty developed by the Court of Criminal Appeal of New South Wales in the context of State offences should generally be applied to federal offences [23] - [24], [28] - [30]. See also in relation to sentencing discounts for early pleas of guilty to federal offences, Thom v The Queen [2001] WASCA 322; (2001) 126 A Crim R 196; P v The Queen [2003] WASCA 180; R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151; R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 273 ALR 324.

115 In Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616, the appellant pleaded guilty to two federal offences; one of attempting to obtain possession of a commercial quantity of ecstasy and one of attempting to obtain possession of a trafficable quantity of cocaine. He appealed against sentence. In the High Court, it was contended that the sentencing judge acted erroneously in applying peculiarly Western Australian sentencing principles to the appellant's disadvantage. Gummow, Callinan and Heydon JJ rejected the contention. Their Honours said:

To give the appellant the benefit of the so-called 'fast track plea', a benefit which was in recognition of his early plea of guilty, was a recognition which all criminal jurisdictions in this country afford to accused persons in various ways and in varying degrees according to the circumstances from time to time [23].

116 I have examined, in the course of dealing with ground 6, the range of discounts that have been given for offenders who have a mitigating factor of the kind referred to at pars 8 - 17 of the appellant's written submissions to her Honour.

117 In my opinion, the head sentence and the non-parole period imposed by the sentencing judge on the appellant were manifestly excessive when proper regard is had to his early plea of guilty, remorse and good prospects of rehabilitation, the matter referred to at pars 8 - 17 of his written submissions to her Honour and the absence of substantial commerciality in his offending. The sentencing outcome was unreasonable or plainly unjust from the perspective of the maximum penalty, the customary standards of sentencing and the objective seriousness of the appellant's offending, after taking into account the three mitigatory factors I have mentioned and other circumstances personal to him. Error in the exercise of the sentencing discretion is to be inferred.

119 Ground 8, which alleges that, in the circumstances, the totality of the errors alleged in the other grounds has resulted in a sentence that is 'excessive', adds nothing to the grounds on which the appellant has succeeded.

The result of the appeal and the appellant's resentencing

120 I would grant leave to appeal on grounds 1, 2, 6 and 7, refuse leave on grounds 3, 4, 5 and 8, and allow the appeal.

121 This court has the material necessary to resentence the appellant.

122 His objective criminality was similar to that of Mr Quaid and Mr Papadimitriou. However, unlike them, he must be given a discount on his head sentence and his non-parole period for his early plea of guilty, remorse and good prospects of rehabilitation, the matter referred to at pars 8 - 17 of his written submissions to her Honour and the absence of substantial commerciality in his offending.

123 In my opinion, the overall criminality of the appellant's offending, after having regard to the maximum sentence, the standards of sentencing customarily observed, the place which his criminal conduct occupies on the scale of seriousness of offences of the kind in question, the mitigating factors and his personal circumstances, requires a head sentence of 12 years' immediate imprisonment. The principles governing, and the proper approach to fixing, a non-parole period are set out in my reasons in Ljuboja [105] - [111]. It is unnecessary to repeat them. In all the circumstances, the appropriate non-parole period for the appellant is 7 years.

124 A head sentence of 12 years with a non-parole period of 7 years also ensures appropriate consistency with the sentences imposed on Mr Quaid and Mr Papadimitriou.

125 The new sentence should be taken to have commenced on the date on which the appellant went into custody, namely, 19 May 2008.

Billing v The State of Western Australia [No 2]

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (160 paragraphs)

MEDAN -v- THE QUEEN [2011] WASCA 142 (4 July 2011)

Parties

Cases Cited (10)