Court of Appeal (WA)|2007-02-01|Before: Steytler P, Wheeler JA, Lure JA

BORBIL -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 24 (1 February 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BORBIL -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 24

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against drug trafficker declaration - Where appellant challenged weight of drug recorded in approved analyst's certificate but did not deliver s 38B(1) notice before sentencing proceedings - Whether sentencing Judge entitled to rely on certificate in making drug trafficker declaration - Purpose of s 38 and s 38B of Misuse of Drugs Act 1981 (WA) - Meaning of "proceedings against a person for an offence" - Appellant estopped from challenging facts in certificate in "any proceedings"

Criminal law - Appeal against sentence - Multiple drug offences involving significant quantities of methylamphetamine and heroin - Whether individual sentences and total sentence manifestly excessive - Range of sentences - New sentence substituted

Criminal law - Appeal against sentence - Separate offences involving different types of drugs committed on same day and in similar circumstances - Whether sentencing Judge erred in making sentences cumulative - One transaction rule not applicable

Attorney-General v Tichy (1982) 30 SASR 84

Barnfield v Calandro [1964] VicRp 98; [1964] VR 762

Blake v Norris (1990) 20 NSWLR 300

Colangelo v The State of Western Australia [2004] WASCA 294

Coyne v The Queen, unreported; CCA SCt of WA; Library No 2325; 1 May 1978

Dixon v The State of Western Australia [2006] WASCA 255

Elliot v Auckland City [1971] NZLR 824

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

Hollingsworth v The Queen [2004] WASCA 73

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

Leonard v The Queen, unreported; CCA SCt of WA; Library No 990152; 29 March 1999

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

Macri v The State Western Australia [2006] WASCA 63

Nelis v The Queen [2000] WASCA 194

Olomi v The State of Western Australia [2004] WASCA 304

Pepper v Western Australia [2005] WASCA 177; (2005) 30 WAR 447

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

Quach v The Queen [1999] WASCA 210

Quazi v Quazi [1980] AC 744

R v Hafner [2002] WASCA 211

Reynolds v Panten [No 1] (1999) 23 WAR 215

S v The Queen [2000] WASCA 34

Samuels v The State of Western Australia (No 2) [2006] WASCA 222

Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Sinagra-Brisca v The Queen [2004] WASCA 68

Transport Ministry v Sowman [1978] 1 NZLR 218

Vodanovic v The Queen, unreported; CCA SCt of WA; Library No 960056; 9 February 1996

Watson v The Queen [2000] WASCA 119

Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363

Western Australia v Miller [2005] WASCA 53; (2005) 30 WAR 38

Wong v The State of Western Australia [2004] WASCA 286

Worthington v Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

1 STEYTLER P: On 29 November 2005 the appellant pleaded guilty to three counts of selling or supplying a prohibited drug. He was sentenced in respect of those offences and also in respect of a fourth offence, being one of possession of a prohibited drug, on 4 April 2006. The total sentence imposed was one of 7 years and 4 months' imprisonment. The appellant was declared to be a drug trafficker pursuant to the provisions of s 32A of the Misuse of Drugs Act 1981 (WA) ("Act"). He appeals, by leave, against the sentences imposed and also against the making of the declaration.

2 The three offences initially charged were committed at the appellant's home on 30 June 2005. An associate of the appellant had contacted him and arranged for him to meet a man, identified only as "Steve" ("third party"), at the appellant's home. The appellant supplied the third party with a small sample of heroin. The weight of the heroin was 0.057 grams. It had a purity of about 20 per cent. This transaction gave rise to count 1 on the indictment.

3 The third party returned to the appellant's home that afternoon. The appellant offered to supply him with an ounce of heroin for $10,000. At the same time he offered the third party a sample of methylamphetamine. After this sample was found to have been of acceptable quality, he supplied the third party with 26.806 grams of methylamphetamine with a purity of 14 per cent in return for payment, to be made later, of $4500. This last supply gave rise to count 2 on the indictment.

4 The appellant then left his home and went to a nearby bush location from which he apparently retrieved an amount of heroin. He returned home and supplied the heroin to the third party in exchange for $10,000. This gave rise to count 3 on the indictment. The heroin was later analysed by an approved analyst (for the purposes of s 38 of the Act), Charles Pierce. He signed a certificate which recorded that the weight of the heroin was 28 grams and that it had a purity of about 17 per cent.

5 The fourth charge to which the appellant pleaded guilty resulted from a search of his home on 18 July 2005 by members of the Organised Crime Squad. They found a small quantity of heroin, weighing 0.29 grams, in a tool cabinet in the garage area.

6 When questioned by the police, the appellant initially denied having committed any of the offences, but subsequently admitted to selling the drugs to the third party in order to "help out" an associate.

7 On 29 November 2005 when, as I have said, the appellant pleaded guilty to the first three offences, the State sought an order that he be declared a drug trafficker pursuant to s 32A of the Act. It relied upon the quantity of heroin the subject of count 3. Section 32A(1)(b)(i) provides that, if a person is convicted of a serious drug offence (the sale of heroin is a serious drug offence as defined in s 32A(3)) in respect of a prohibited drug in a quantity which is not less than that specified in Sch VII of the Act in relation to the prohibited drug, the court convicting that person of the serious drug offence shall, on the application of the Director of Public Prosecutions, declare the person to be a drug trafficker. Schedule VII specifies a quantity of 28 grams in the case of heroin.

8 Counsel for the appellant opposed the making of the declaration. He challenged the finding recorded in the certificate that the weight of the heroin was 28 grams. He sought to have the heroin independently weighed. The sentencing Judge referred him to s 38 and s 38B of the Act which, so far as they are relevant, read as follows:

"38**.** Certificate of approved analyst or approved botanist

(1) An approved analyst or an approved botanist may give a certificate in the prescribed form relating to any analysis or examination carried out by the approved analyst or approved botanist.

(2) In any proceedings against a person for an offence, production of a certificate purporting to be signed by an approved analyst or an approved botanist stating in relation to any thing -

...

(c) a description, and the quantity or mass, of the thing obtained or received;

...

is sufficient evidence of the facts stated in the certificate.

...

38B**. Accused may object to use of certificate**

(1) Section 38(2) does not apply if, not less than 21 days before the proceedings, the accused delivers notice in writing to the Commissioner requiring the approved analyst or approved botanist to attend as a witness in those proceedings.

(2) An accused shall be afforded a reasonable opportunity to deliver a notice referred to in subsection (1).

(3) An accused shall not in any proceedings adduce evidence in rebuttal of any facts stated in a certificate unless the accused has delivered notice in accordance with subsection (1) requiring the approved analyst or approved botanist to attend as a witness in the proceedings."

9 The then counsel for the appellant (not counsel who appeared on the appeal) informed the sentencing Judge that the issue of the weight of the heroin had "only just come to ... [his] attention". He said that he was not suggesting that the certificates had not been provided to him "in sufficient time". He reiterated that he would like to have the heroin independently weighed. The prosecutor having made no objection, the sentencing Judge adjourned the application for a declaration so as to allow a State-appointed expert to re-weigh the drug in the presence of an expert of the appellant's choosing. Although she proceeded to hear submissions in relation to sentencing, she adjourned that issue, also, until the drugs had been re-weighed.

10 On 21 February 2006 the matter came again before the sentencing Judge. She had, by then, received a statement from Mr Pierce. In it, he said that the quantity of heroin had been weighed by him prior to analysis. It had weighed 28.02 grams but that figure was rounded down to 28 grams. After he had recorded this weight, some of the heroin had been removed for analysis purposes and that portion of the drug had been destroyed. He said that this had the consequence that the weight of the remaining heroin was "obviously now less than 28.0 grams".

11 The then counsel for the appellant sought leave to cross-examine Mr Pierce. However, the prosecutor contended that it was too late for the appellant to object to the certificate, the period of 21 days provided for by s 38B of the Act having expired without the delivery of any notice in writing to the Commissioner in accordance with the terms of that section. The sentencing Judge adjourned the matter once again so as to enable the parties to lodge further submissions in respect of this contention.

12 The hearing resumed on 4 April 2006. By that date, senior counsel for the appellant (who had by then been instructed) and counsel for the State had provided the sentencing Judge with written submissions in relation to the application for a declaration. At the commencement of the proceedings the sentencing Judge said to senior counsel for the appellant:

" ... I have read your submissions, and rather than delay - listening to you, although I am delighted to hear you always, I think I fully appreciate your submissions ... and I think I will just hear from the State as to any reply. I think that would be the approach."

13 Counsel for the respondent then addressed the sentencing Judge. He advanced what he submitted to be the appropriate construction of s 38B having regard for what he took to be its purpose. Having listened to that submission, the sentencing Judge asked senior counsel for the appellant whether he had "any further submissions in reply to that". He responded by saying that he did not and that he would "simply rely on ... [his] written submissions ... "

Judgment on the application for a declaration

14 The sentencing Judge then delivered her judgment concerning the application for a declaration. She recited the history of the proceedings, mentioning that the appellant had been charged on 21 July 2005 with the three drug offences charged in counts 1, 2 and 3, that he had pleaded guilty before a Magistrate on the fast track on 30 September 2005 and that he had been remanded to the District Court for sentence on 29 November 2005. She said that the certificate prepared by Mr Pierce was served on the appellant on 8 November 2005, 21 days prior to the hearing on 29 November 2005. She then recounted what had taken place on that day and subsequently. She added that on 27 February 2006 the appellant had, for the first time, provided a formal notification to the Commissioner of Police pursuant to s 38B(1) of the Act.

15 The sentencing Judge then turned to the provisions of s 38B. She accepted a submission that had been advanced by the prosecutor to the effect that the word "proceedings" in s 38B(1) "includes trial proceedings, sentencing proceedings and also proceedings to declare an offender a drug trafficker", saying that that term was "well wide enough to incorporate all of those". She went on to say:

"In this case the proceedings were proceedings to sentence and they included proceedings for seeking a declaration of a drug trafficker and other orders. There were a number of orders that the State sought and properly sought in the context of the sentencing. I am satisfied that giving this section its proper meaning within the context of the Misuse of Drugs Act ... it is to provide an accused person with an opportunity in a timely way to object to the use of a certificate.

I am satisfied that in this case the proceedings were on 29 November 2005, when the offender entered his pleas of guilty before me. If the certificate was to be challenged formal notification should have been given in writing to the Commissioner of Police 21 days before that date. However, it is clear from section 38B(2) that the Parliament left some discretion to the Court. The Court must ensure that the accused is afforded a reasonable opportunity to deliver a notice.

I believe in this case where there was just a bare 21 days until 29 November 2005, that being as generous as the section can allow any written notice in this case should have been given by the end of December 2005. It was not given. I consider the belated notice given on 27 February 2006, after the second hearing had been held, was too late and of no effect, therefore, I am bound by section 38B(3) to accept the certificate of analyst and based on that certificate I order the offender be declared a drug trafficker pursuant to section 12A [sic - 32A] of the Misuse of Drugs Act."

16 She then referred to an argument put to her by senior counsel for the appellant to the effect that each hearing before her had been "another proceeding", with the consequence that "the 21-day rule would keep arising throughout adjournments" of the case. She said, in that respect:

"I don't accept that. I don't think the Parliament meant to set this so that by obtaining a delay in sentencing an offender would obtain an extension of time in which to give notice in writing to the Commissioner. The reason I've rejected that reasoning is in the words of section 38B(1), itself.

It doesn't say before 'any' proceedings it says before 'the' proceedings and in this case the proceedings were the sentencing proceedings as I have held on 29 November and the associated orders that were required to be made. However, if I am wrong about that, I also rely for my decision today on section 15 of the Sentencing Act, section 15 of the Sentencing Act provides this:

To decide on the proper sentence to be imposed or on imposing an order in addition to sentence a court sentencing an offender may inform itself in any way it thinks fit.

I notice, of course, section 16 of the Sentencing Act allows me to adjourn sentencing but not for any longer than six months; that in itself requires me to sentence today. In sentencing this offender, therefore, section 15 of the Sentencing Act allows me to rely on the statement dated 20 February 2006 from ... Charles Pierce.

Based on that statement I am satisfied beyond reasonable doubt that the offender sold 28 grams of heroin as alleged in count 3, that the true weight was 28.02 grams and that was reduced simply as a matter of the protocols within the analysis laboratory, therefore alternatively I would order the offender be declared a drug trafficker. This is not something that I have any discretion about and I proceed to sentence on the basis of those facts."

17 The sentencing Judge then turned to more general sentencing matters. She mentioned, amongst other things, that the appellant was a 52-year-old man who had never before been to prison. He had migrated to Australia from Romania as a political refugee in 1982 and had eventually brought his wife and four children to this country. He had an 11-year-old son who was in his sole care. While he was imprisoned in respect of the present offences his son was in the care of other members of the Romanian community, including his sister and other family members. The sentencing Judge mentioned that the boy suffered from learning disabilities and that the appellant (who was in poor health and had previously had by-pass surgery performed in respect of his heart) had been on a disability pension. She said that the appellant had been in a precarious financial position and that, overwhelmed with financial pressures, he had become desperate and agreed to become involved in selling drugs for financial gain. The appellant was not a user of illicit drugs.

18 The sentencing Judge also mentioned that a psychological report received by her in respect of the appellant revealed that he had a very low risk of re-offending and that his involvement in offences of this sort was out of character. She referred to "glowing references" that had been given in respect of the appellant and also of the strong bond which existed between the appellant and his son. The appellant had been an exemplary father to his son.

19 Her Honour recognised the mitigating effect of the appellant's early pleas of guilty, the cooperation that he had provided to the police, his genuine remorse (although she said that it appeared to her to be "remorse that he was caught"), the fact that he was deeply ashamed of his behaviour and the fact that he had, in difficult circumstances, been the sole carer of his son. However, she said that these factors were outweighed by the seriousness of the offending and the needs of general deterrence. She had earlier remarked that the manner in which the appellant sold the drugs showed "that he had an intimate involvement in these transactions for commercial gain" and "that he was able to access large quantities of both methylamphetamine and heroin". She accepted that the 14 per cent purity of the methylamphetamine was within the range of the level of purity found at street level, albeit at the higher end of the range, and that the purity of 17 per cent of the heroin was also "of a street level purity".

20 She imposed a sentence of 11 months' imprisonment on count 1, a term of 3 years and 4 months' imprisonment on count 2, a sentence of 4 years' imprisonment on count 3 and a term of 8 months' imprisonment on the fourth charge. She ordered that the sentences imposed on counts 1 and 3 be served concurrently with each other and with that imposed on the fourth charge but that those terms be served cumulatively with the term imposed in respect of count 2. This gave rise to the total term of 7 years and 4 months' imprisonment. She ordered that the appellant be eligible for parole and that the sentence commence on 29 November 2005, upon which day the appellant had been taken into custody.

21 There are four grounds of appeal in respect of which the appellant has been given leave to appeal. Omitting particulars, these grounds read as follows:

"1. The learned sentencing Judge erred by denying the Appellant procedural fairness in the sentencing hearing by not hearing oral submissions from Senior Counsel for the appellant on the question of the drug trafficker declaration.

2. The learned sentencing Judge erred in her interpretation of s.38B of the Misuse of Drugs Act 1981 (WA) and by denying the Appellant the opportunity to challenge the drug analysis certificate.

3. The learned sentencing Judge erred in imposing a sentence outside a broad discretionary range for such offences.

6. The learned sentencing Judge erred in law in failing to make the sentence on count 2 of the Indictment concurrent or partially concurrent with the sentences for counts 1 and 3."

22 There is no substance to the submission that the sentencing Judge erred by denying the appellant procedural fairness in the sentencing hearing. I have said that the matter was adjourned on 21 February 2006 to enable the parties to lodge further submissions with respect to the application for the declaration. That was done. Senior counsel for the appellant lodged a full written submission and this was plainly considered by the sentencing Judge. Moreover, there was no reason why the sentencing Judge should not have elected, as she did, to hear first from counsel for the State when the hearing resumed on 4 April 2006. Having done so, as I have earlier mentioned, she asked senior counsel for the appellant whether he had any further submissions to make in response to what had been said on behalf of the State. While counsel for the appellant suggested to us that he had been lulled into a false sense of security by what had been said by the sentencing Judge, it was plain from the fact that he was invited to make submissions in reply that there was at least some risk that the position advocated by him would not be accepted. Having chosen, in those circumstances, to rely upon his written submissions, it is not open to him to contend that there was any failure of natural justice even if the requirements of natural justice had not already been satisfied by the lodgement of written submissions.

23 Ground 2 turns, in part, upon the construction of the words "proceedings against a person for an offence" in s 38(2) and of the words "in any proceedings" in s 38B(3).

24 Before turning to the contentions advanced on behalf of the parties, it is instructive to have regard for some matters of context. It is, first, important to bear in mind, when considering the meaning of the words "proceedings against a person for an offence" in s 38(2), that an application for a declaration under s 32A(1) of the Act can only be made after the conviction of the offender for a serious drug offence. Moreover, it can be made after the sentencing process for that offence has been completed. Section 32A(2) provides that the application may be made at any time within six months from the day of the conviction. The consequence of such a declaration is that the offender becomes subject to s 8 of the Criminal Property Confiscation Act 2000 (WA) which provides for the confiscation of all the property that the person owns or effectively controls at the time the declaration is made and all property that the person gave away at any time before the declaration was made: see s 8(1) and s 141(1) of that Act. In Macri v The State Western Australia [2006] WASCA 63 the Court held that a sentencing court is required to disregard the confiscation of property derived from the drug offences concerned when sentencing an offender. However, it may take into account the fact of confiscation of other, lawfully acquired, property if the offender is able to demonstrate, on a balance of probabilities, that he or she has had property confiscated that was unconnected with the offence or offences being dealt with. (See also Sinagra-Brisca v The Queen [2004] WASCA 68 at [19] - [23].)

25 It is also important to consider the history of s 38 and s 38B. Section 38 was substantially amended and s 38B inserted, in 1995, by the Misuse of Drugs Amendment Act 1995 (WA) ("amending Act").

26 Prior to the amending Act, s 38 read as follows:

"In any proceedings against a person for an offence -

(a) An analyst or botanist may give a certificate in the form prescribed and signed by him with respect to any analysis or examination made by him of any drug ... obtained or received by him for analysis or examination;

(b) The production of a certificate referred to in paragraph (a) purporting to be signed by the analyst or botanist giving that certificate with respect to an analysis or examination referred to in that paragraph shall, without proof of the signature of the person appearing to have signed that certificate or that he is an analyst or botanist, be sufficient evidence of -

(i) the identity, nature and description of the thing obtained or received for analysis or examination;

(ii) the result of that analysis or examination; and

(iii) the matters relevant to those proceedings stated in that certificate,

unless the defendant by not less than 3 days notice in writing delivered to the complainant and to that analyst or botanist (opportunity to deliver which notices shall be afforded to the defendant) requires that analyst or botanist to attend as a witness in those proceedings; ... "

27 Section 38, as originally introduced, consequently contained the framework of the current s 38, s 38B(1) and s 38B(2). When the Misuse of Drugs Bill, which originally introduced s 38, was read for a second time in the Legislative Assembly, the responsible Minister said (Second Reading Speech, 4 August 1981, p 2364):

"Analysts and botanists will be permitted to issue certificates for presentation to a court concerning an analysis or examination made by them of any plant, drug, or other substance. At present such certificates are available only in respect of an analyst.

A defendant who requires an analyst or botanist to give evidence will be required to give not less than three days' notice."

28 Only s 38B(3) is without a precursor to the amending Act. As I have said, this subsection provides that:

"An accused shall not in any proceedings adduce evidence in rebuttal of any facts stated in a certificate unless the accused has delivered notice in accordance with subsection (1) requiring the approved analyst or approved botanist to attend as a witness in the proceedings."

29 It seems to me that, apart from restructuring and the addition of s 38B(3), the only relevant changes of any significance effected by the amending Act are that:

1. the current legislation contains a more comprehensive list of the matters for which the certificate constitutes sufficient evidence (although, given that the earlier version contained a broad category relating to "matters relevant to those proceedings stated in ... [the] certificate", this amendment might not have made any substantive difference); and

2. the required period of notice was increased from 3 days to 21 days.

30 That brings me to the contentions respectively advanced on behalf of the parties.

31 Counsel for the appellant essentially raised two alternative propositions concerning the proper construction of the amended provisions. The first is that the sentencing Judge erred in interpreting the phrase "in any proceedings" in s 38B(3) as referring, in the present case, only to the sentencing proceedings (which she understood to encompass the application for a declaration) and by concluding that these took place on 29 November 2005. He argued that the purpose of the notice provision in s 38B is to give the prosecution and its witnesses adequate notice of a challenge to a certificate in order to ensure that the witnesses are available to appear and are prepared to give the necessary evidence in court. He submitted that, according to the ordinary meaning of the words used, the 21 days notice period relates to the date upon which the hearing of the challenge to the certificate is to be held and determined in court. The second proposition, raised in supplementary submissions lodged, with leave, after the hearing of the appeal, is that proceedings for a drug trafficker declaration under s 32A are not proceedings to which s 38(2) applies because they are not proceedings against a person "for an offence". If this second proposition is correct it would follow, according to counsel for the appellant, that the time limit in s 38B had no application to those proceedings. He made the further submission that, if this is correct, it was not open to the sentencing Judge to rely upon the certificate, in circumstances in which its accuracy was challenged, for the purpose of making the declaration sought. He also submitted that reliance upon the certificate for sentencing purposes could not, in the circumstances, found an estoppel for the purpose of the declaration proceedings.

32 Counsel for the respondent contended that the primary purpose of the amending Act was that of enabling the Commissioner of Police to destroy large quantities of drugs without the need for an order of the court and to keep only a sample of the drugs in question. He submitted that, keeping this purpose in mind, the requirement for 21 days notice "before the proceedings" should be interpreted as meaning 21 days before the entire proceedings before the court. He also submitted that, as the sentencing Judge was anyway satisfied beyond a reasonable doubt, for the purpose of making the declaration, that the appellant had sold 28.02 grams of heroin, there has been no miscarriage of justice even if she misinterpreted the section.

33 In his supplementary submissions, counsel for the respondent's primary contention was that s 38 should be interpreted as being wide enough to include proceedings that are ancillary to the sentencing proceedings, including proceedings to have the offender declared a drug trafficker. He reiterated that the purpose of the amending Act was to enable the Commissioner of Police to destroy large quantities of drugs without the need for an order of the court and to keep only a sample of the drugs involved. He suggested that this intention can be given effect only by the interpretation of s 38 advanced by him.

34 Counsel for the respondent's secondary supplementary contention was that, even if the Court does not accept this interpretation of s 38, the provisions of s 38B(3) nevertheless apply to proceedings to declare an offender a drug trafficker and the appellant did not comply with these provisions. He pointed out that s 38B(1) provides that s 38(2) does not apply if the accused delivers the appropriate notice not less than 21 days before "the proceedings" and said that those words refer to the relevant "proceedings against a person for an offence" for the purposes of s 38(2) being, in this case, the sentencing proceedings. He then emphasised that, under s 38B(3) an accused shall not "in any proceedings" adduce evidence in rebuttal of any facts stated in a certificate unless the accused has delivered notice in accordance with subsection (1) requiring the approved analyst or approved botanist to attend as a witness in "the proceedings". He submitted that the phrase "in any proceedings" (as opposed to the phrase "proceedings against a person for an offence" in s 38(2) and the phrase "the proceedings" in s 38B(1)) is sufficiently wide to encompass proceedings under s 32A for the making of a drug trafficker declaration. He consequently submitted that the proper interpretation of s 38B is that, if the required notice is not given for "the proceedings" (being, in the present case, the sentencing proceedings), then an accused cannot adduce evidence in rebuttal of any facts stated in the certificate "in any proceedings" thereafter, including proceedings for a drug trafficker declaration.

35 I am not persuaded that s 38 and s 38B should be read in light of the primary purpose of the amending Act identified by counsel for the respondent. The amending Act also made amendments to s 27 of the Act and introduced s 26A and s 27A. Section 27(1)(a) provides that any detained prohibited drugs shall be caused to be destroyed when a police officer is satisfied that no person will be tried with the commission of an offence in relation to the drugs. Section 27(1)(b) outlines the procedure by which the court trying an offender may order the destruction of the relevant prohibited drugs. The substance of these subsections was provided for in the Act before the passing of the amending Act. However, the substance of s 26A, s 27(2) and s 27A was new to the Act when inserted by the amending Act.

36 Section 26A gives approved analysts or approved botanists the power to take samples of any thing seized under the Act and to analyse or examine any such thing or sample. Section 27(2) outlines a procedure by which the Commissioner of Police may direct that a prohibited drug be destroyed, before it is dealt with under s 27(1), if sufficient samples of the drug have been taken and it is not reasonably practicable to detain the drug until it is dealt with under subsection (1). Section 27A allows any person charged with an offence in relation to a prohibited drug to apply to have a sample of the drug analysed or examined by an analyst or botanist chosen by the person if a direction is given under s 27(2) for the drug's destruction. Section 27A applies, by virtue of subs (6), whether or not the drug the subject of the direction has been destroyed.

37 Prior to the introduction of these provisions, the Act did not authorise the destruction of prohibited drugs and plants prior to trial (see Second Reading Speech for Misuse of Drugs Amendment Bill, Legislative Assembly, 15 June 1995, pp 5221-5222). In my opinion, it is these and the other related amendments which were behind the references, in debates on its second reading, to the primary purpose of the amending Act being to enable seized drugs to be destroyed prior to trial (and it is important to understand that there was no reference, in the second reading speech itself, to this being a primary purpose of the amendments). In light of the fact that procedures for the disposal of drugs prior to trial and also for analysis of the drugs at the request of the accused in such circumstances are explicitly dealt with by s 27 and s 27A, it seems that s 38 and s 38B, which appear in a separate part of the Act, were not enacted for the purpose of enabling drugs to be destroyed prior to trial.

38 Section 26A, s 27 and s 27A are all contained in Pt V of the Act, which is titled "Location, seizure, detention and disposal of things used in commission of offences". On the other hand, s 38 and s 38B are located in Pt VI, which is titled "General", and are surrounded by sections dealing with matters of evidence. Section 37 stipulates that the burden of proof in relation to proving exceptions, in any proceedings against a person for an offence, lies on the person seeking to rely on the exception. Section 38D deals with the sufficiency, as evidence, of copies of any standard referred to in the Poisons Act 1964 (WA).

39 Furthermore, at least in relation to s 38 and s 38B(1), the fact that the substance of these provisions was already present in the legislation prior to the amendments effected by the amending Act also militates against any suggestion that these provisions should be interpreted in accordance with the alleged primary purpose of the amending Act.

40 As will be apparent, s 38(1) permits an approved analyst or an approved botanist to issue a certificate of analysis or examination in the prescribed form for presentation to court. Sections 38(2) and (3) provide that such a certificate is sufficient evidence of the facts stated in the certificate in relation to the relevant listed matters in any proceedings against a person for an offence, without the need for the State to prove the signature on the certificate or that the person signing the certificate is actually an approved analyst or an approved botanist. In the absence of those provisions, the State would need to prove those matters by, for example, calling an analyst or botanist as an expert witness. The purpose of s 38B consequently seems to me to be that of providing the Commissioner with sufficient notice if the approved analyst or approved botanist is required to attend as a witness in "the proceedings".

41 That brings me to the meaning of the words "In any proceedings against a person for an offence" in s 38(2). The word "proceedings", taken by itself, is imprecise: Quazi v Quazi [1980] AC 744 at 788 per Ormrod LJ; Blake v Norris (1990) 20 NSWLR 300 at 306 per Smart J; Reynolds v Panten [No 1] (1999) 23 WAR 215 at 226. However, in s 38(2) some specificity is obtained from the context in which the word is used. The proceedings can be "any" proceedings that are "against a person for an offence".

42 A similar phrase was considered in Elliot v Auckland City [1971] NZLR 824. In that case the appellant had pleaded guilty to an offence of driving a car while the proportion of alcohol in his blood exceeded 100 mg of alcohol per 100 ml of blood. However, at the time of sentencing, he sought to place evidence before the court that his "real" blood alcohol level at the time of offending was substantially below 100 mg per 100 ml. He contended that this information was one of the circumstances to which the court should have regard when sentencing him. At the time, there was a presumption in s 59C(8) of the Transport Act 1962 (NZ) that:

"For the purposes of proceedings for an offence against this Part of this Act arising out of the circumstances in respect of which a specimen of blood was provided by the defendant under this section [the proceedings against the appellant met this description], it shall be presumed that the proportion of alcohol in his blood at the time of the alleged offence was the same as the proportion of alcohol in the specimen of blood provided by the defendant."

43 Previous authority in New Zealand had held that this presumption was irrebuttable for the purposes of deciding the guilt or innocence of the offender. McMullin J held, in Elliot, that the sub-section also applied for the purpose of deciding what was the appropriate sentence. He said (at 828):

" ... The words of the sub-section which import the presumption apply not for the limited purpose of deciding the guilt or otherwise of the person charged but also for the purpose of deciding the quantum of sentence. The purposes for which the presumption is to apply are 'For the purposes of proceedings for an offence against this Part of this Act'.

... The word 'proceedings' is a word which covers not only those steps taken on an information up to the moment of conviction but also includes steps taken on that information after conviction to the point where sentence is imposed. In Federated Amalgamated Government Railway & Tramway Service Association v New South Wales Railway Traffic Employees' Association (1906) 4 CLR 488, 494 Griffith CJ said:

'The term "proceeding" is a term of very wide application. In my opinion the term "proceeding before the Court" includes every matter brought before the President in the exercise of the judicial functions conferred upon him by the Act.'

Although I need not express an opinion upon the question of whether proceedings will include steps subsequent to the imposition of sentence, such as the collection of fines, I note that in R v London, Chatham and Dover Railway Company (1868) LR 3 QB 170 the taxation of costs in a suit for a writ of mandamus was held to be a 'proceeding', and in R v Titterton [1895] 2 QB 61 it was held that the application of a penalty recovered under the Margarine Act was a part of the 'proceedings' under the Act."

In coming to his decision, McMullin J appears to have focussed on the broad general meaning of the word "proceedings". He did not explicitly consider whether this meaning was limited by the words "for an offence".

44 In Transport Ministry v Sowman [1978] 1 NZLR 218, the Court of Appeal overruled McMullin J's ultimate decision as regards the question whether the presumption precluded the court from considering evidence of the offender's actual blood alcohol level for the purposes of sentencing. However, they agreed (at 222) with his conclusion that the phrase "for the purposes of proceedings for an offence", as it appeared in the legislation, "on its ordinary and actual meaning includes not only the proceedings up to the point of conviction but also the proceedings thereafter relating to sentence".

45 The issue was also considered by Gowans J in Barnfield v Calandro [1964] VicRp 98; [1964] VR 762. In that case s 92(a) of the Motor Car Act 1958 (Vic) provided that:

"In any proceedings for offences against this Act or the regulations -

(a) where it is necessary to prove ... [certain listed facts relating to registration and licensing of motors cars, trailers and drivers] or any other matter which appears in or can be calculated from the records kept in the Motor Registration Branch, a certificate in the prescribed form signed or purporting to be signed by the officer in charge of the Motor Registration Branch or his deputy setting out ... [any of these listed facts] or such other matter shall be prima facie evidence of the facts stated therein".

The offender had been convicted of an offence under that Act. Section 33(6) thereof provided that a driver of a motor car who was guilty of such an offence was liable, upon the commission of a second or any subsequent offence, to a penalty of not less than [sterling]20 and, upon conviction for a second or subsequent offence, the driver's licence was to be cancelled or suspended. The Court was satisfied, on the basis of a certificate of the kind referred to in s 92(a), that this was the offender's second offence. His licence was accordingly suspended. The offender challenged the use of the certificate as evidence that it was his second offence.

"A number of points are taken in relation to the applicability of the provision in s 92(a). The first is that the preliminary condition for the certificate to be prima facie evidence of the facts stated therein was not satisfied for the reason that it was not 'in any proceedings for an offence against the Act' that any necessity to prove the prior offence or conviction arose. In other words, this argument involves the proposition that 'proceedings for offences' conclude with conviction or acquittal, and do not embrace the sentence or the preliminaries thereto.

... If the introductory words of s 92 had been 'in any proceedings for convictions for offences under this Act', the language used would have been capable of extending to so much of the proceedings as resulted in judgment and sentence or of being confined to the verdict only: R v Blaby [1984] 2 QB 170 ... ; R v Rabjohns [1913] 3 KB 171; see also R v Tonks [1963] VicRp 19; [1963] VR 121.

In Williams v R (No 2) [1934] ... [1934] HCA 19; 50 CLR 551, at p 560, Dixon J, expressed the view that the word 'conviction' is capable of including sentence depending upon the context. However, the word 'conviction' is not used in s 92 and, in my opinion, the expression 'any proceedings for offences' is wide enough to cover the proceedings up to and including sentence or order. For example, I think it is clear that the making of an order for cancellation or suspension of a licence under s 26, after conviction, would constitute proceedings attracting so much of the provisions of s 92(a) as refers to drivers being licensed or not.

Some emphasis was placed on the word 'necessary', but once the proceedings referred to are identified as including sentence and the preliminaries thereto, it becomes clear that proof of the prior conviction was 'necessary' for the purpose of determining the appropriate penalty, just as it would be 'necessary' for the purpose of an order under s 26 to prove whether the convicted person was or was not licensed."

47 Later (at 766), after discussing the application of the ejusdem generis principle to the expression "any other matter", Gowans J said:

"The point reached as a result of these conclusions is that s 92(a) applies where, for the purpose either of proving guilt of an offence or of making an order or passing sentence thereafter, proof is required of any matter which appears in the records kept by the Motor Registration Branch."

48 If Gowans J's reasoning is accepted as correct, this would not mean that proceedings for a drug trafficker declaration would necessarily fall within the description of "proceedings against a person for an offence". Although he concluded that "proceedings for offences" include proceedings "for the purpose of either proving guilt of an offence or of making an order or passing sentence thereafter", it is not clear whether he meant by this to refer to orders that cannot be considered part of the sentence. In Barnfield the proceedings appeared to involve only the imposition of a sentence and preliminaries thereto, and not proceedings subsequent to the imposition of the sentence, because an order suspending the driver's license may be viewed as part of the sentence. A "sentence" is essentially an order relating to punishment made by a court after a person has been convicted of a criminal offence: see Butterworths Concise Australian Legal Dictionary (2nd ed) 1998 at 396.

49 Returning to the present case, it seems to me to be plain that the words "proceedings against a person for an offence" encompass the proceedings leading up to, and including, the conviction and sentencing of the offender. The question whether those words encompass an application for, or the making of, a declaration that a person is a drug trafficker is a good deal more difficult. The answer may depend on whether a drug trafficker declaration can be considered part of the sentence (as to which see R v Rowe (1992) 5 WAR 491 at 498, decided in the context of somewhat different legislation; Sinagra-Brisca at [20] - [21]; Macri at [10] - [13]) and, if not, whether the expression could still extend to proceedings for such an order. However, it seems to me that the scheme of s 38 and s 38B is such that the answer to that question is of no significance in this case. That is because, once the certificate has been obtained for the purpose of conviction and/or sentencing (it was, as the sentencing Judge said, relevant to sentencing in this case and was provided on 8 November 2005, in advance of the sentencing proceedings), it may be used in "any proceedings" subsequently arising out of the commission of the offence in question and, in such a case, the effect of s 38B(3) is that the defendant will be estopped from adducing evidence in rebuttal of any facts stated in the certificate unless he or she has delivered notice in accordance with s 38B(1) in "the proceedings", being the proceedings "for an offence" identified in s 38(2). As I have said, the sentencing proceedings were held on 29 November 2005 and s 38B(1) had not, by then, been complied with. While the effect of what was said by the sentencing Judge was that the appellant may not, by then, have had a reasonable opportunity to deliver the notice referred to in s 38B(1), it is plain from what she said that she considered that a reasonable opportunity to do so had well and truly been afforded by 21 February 2006, when the matter next came before her. The notice had, by then, still not been given. It follows, in my opinion, that she was entitled to rely upon the certificate and that she was right in her conclusion that s 38B(3) applied. I should add that, essentially for the reasons given by the sentencing Judge, I am unable to accept that there is a separate proceeding each time an adjournment is granted.

51 As will be apparent, ground 3 challenges the total sentence of imprisonment imposed upon the appellant upon the ground that it is manifestly excessive. However, in his oral submissions counsel for the appellant challenged the sentences imposed in respect of each of counts 2 and 3 as being manifestly excessive. The principles applicable to such a ground are settled. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing Judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. It may intervene if there is a material error of fact or law. Error may be inferred if an individual sentence is manifestly excessive or if the total effective sentence infringes the totality principle. That principle is to the effect that the sentences imposed in respect of individual offences must not be such as to result in an aggregate sentence which is inappropriately long, having regard to the course of criminal conduct viewed as a whole: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307 - 308 per McHugh J.

52 Dealing in heroin or methylamphetamine is a serious offence. The major consideration in the sentencing process in the case of an offence of either kind is personal and general deterrence and an offender's previous good character will carry limited weight: Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363 at [8] and the cases there cited; Quach v The Queen [1999] WASCA 210 at [13]; Le v The Queen [2004] WASCA 214; (2004) 147 A Crim R 269 at [10] - [11], [79] - [81], [89] - [94]. In determining the seriousness of an offence of this kind, the quantity of the drug involved and its purity should not be the sole focus. 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: see Marchese at [9].

53 In answering the question posed for the Court, namely whether the sentencing Judge erred in the exercise of her discretion by imposing sentences that were manifestly excessive in light of these circumstances and a total sentence that infringed the totality principle, it is appropriate to consider the range of sentences imposed in cases involving similar circumstances. I propose, first, to consider sentences imposed in respect of offences similar to each of counts 2 and 3 and then to consider the total sentence imposed.

Count 2 - 3 years and 4 months' imprisonment for supplying 26.806 grams of methylamphetamine with a purity of 14 per cent (3.75 grams net)

54 An examination of the case law reveals that the sentences ordinarily imposed for offences involving around 25 grams of methylamphetamine, to which the offender has pleaded guilty, range from 2 years to around 31/2 years' imprisonment (taking into account the effect of the "transitional provisions" enacted by the Sentencing Legislation Amendment and Repeal Act 2003 (WA)), depending upon the level of purity and other circumstances. However, the cases do not reveal a uniformly consistent approach.

55 In Colangelo v The State of Western Australia [2004] WASCA 294, the offender had pleaded guilty (but not at the earliest opportunity) in respect of an offence involving 74 tablets of MDMA or ecstasy and also in respect of two offences of possession of methylamphetamine (counts 1 and 3). The third count involved 26.3 grams of methylamphetamine with a purity of 37 per cent. These drugs had been discovered in the offender's possession about three months after the other two offences had been committed. The offender had been on bail for the earlier offences at the time of the discovery. A term of 2 years' imprisonment was imposed in respect of this offence. It was made cumulative upon a term of 4 years which was imposed in respect of count 1, involving 53.32 grams of methylamphetamine. The offender was described as a middle-range dealer. He was 23 years old at the time of offending and was a drug user. He had no significant prior history. An appeal against sentence was unsuccessful.

56 In Vodanovic v The Queen, unreported; CCA SCt of WA; Library No 960056; 9 February 1996, a sentence of 3 years' imprisonment in respect of an offence of possession of 24.5 grams of methylamphetamine having a 2 per cent purity, with intent to sell or supply, was upheld on appeal. The offender had purchased the drug in bulk for $1500. He repackaged some of it into 0.3 gram or 0.7 gram bags for sale. This sentence, imposed prior to the transitional provisions, is equivalent to one of 2 years' imprisonment after the coming into operation of the transitional provisions.

57 In Nelis v The Queen [2000] WASCA 194 the offender was convicted, after an early plea of guilty, on two counts of selling methylamphetamine and one count of possession of methylamphetamine with intent to sell or supply. A sentence of 7 years' imprisonment (equivalent to one of 4 years and 8 months' imprisonment after the operation of the transitional provisions) was imposed in relation to the most serious offence. This involved the sale of 54.75 grams of methylamphetamine for $13,000. Concurrent sentences of 3 years' imprisonment (equivalent to sentences of 2 years' imprisonment after the operation of the transitional provisions) were imposed in respect of each of the other two offences. One involved the sale of 27.4 grams of amphetamine with a purity of 2.5 per cent for $1200. The other involved possession of 26.95 grams of methylamphetamine with a purity of 2.5 per cent and 0.69 grams with a purity of 21 per cent, with intent to sell or supply. The offender had a prior criminal history and was a mainstream commercial dealer. He was not a drug addict. He was a family man with some psychiatric problems. These sentences were upheld on appeal.

58 In Wong v The State of Western Australia [2004] WASCA 286, a sentence of 2 years and 6 months' imprisonment was imposed in respect of an offence of possession of 26 grams of methylamphetamine with intent to sell or supply. The sentence was ordered to be served cumulatively upon sentences imposed in respect of two counts of attempted aggravated burglary and one of attempted armed robbery, with the resulting aggregate sentence being one of 5 years' imprisonment. The drugs were found in the offender's backpack, together with paraphernalia for selling drugs, when the offender was arrested in respect of these last three offences. The methylamphetamine had a purity of 6 per cent. The Court was told that this was "street level" purity. The offender, who had pleaded guilty to the offence, was a 19-year-old man with no prior convictions and very good rehabilitation prospects. The sentence was upheld on appeal.

59 In Hollingsworth v The Queen [2004] WASCA 73, the offender pleaded guilty, only six days before facing trial and in the face of overwhelming evidence, to six charges of offences involving selling and possession of methylamphetamine and MDMA. He was sentenced to a total term of 5 years' imprisonment. The most serious offence involved the sale of 29 grams of methylamphetamine with a purity of 11.2 per cent for $20,000. The sentence imposed on this count was one of 3 years' imprisonment. It was imposed cumulatively upon concurrent sentences of 2 years' imprisonment imposed in respect of each of the other offences. One of these other offences involved the sale of 17.5 grams of methylamphetamine with a purity of 2 per cent for $1800. The offender was described as a very active distributor of drugs for commercial gain. He supplied drugs to street dealers. The offender had another drug conviction in respect of an offence which he had committed while on bail for these offences.

60 In Leonard v The Queen, unreported; CCA SCt of WA; Library No 990152; 29 March 1999, a sentence of 5 years' imprisonment for selling 22.4 grams of amphetamine to an undercover police officer was upheld on appeal. The purity of the drug in that case was 8.5 per cent. The offender and a co-offender had given the full amount paid for the drug ($3500) to the supplier from whom they obtained it. Their only reward was a small portion of the drug, which they retained. The offender pleaded guilty to the offence. He had a relatively good previous record. The sentence imposed (prior to the operation of the transitional provisions) equates to one of 3 years and 4 months' imprisonment under the current sentencing regime.

61 A sentence equivalent to 4 years' imprisonment under the transitional provisions (6 years' imprisonment under the former sentencing regime) was imposed on the offender in R v Hafner [2002] WASCA 211. He had pleaded guilty on the fast track system to a charge of attempting to sell or supply 21.2 grams of methylamphetamine with a purity of 36 per cent. However, the case involved a conspiracy to export 244 grams of heroin from Melbourne to Perth. The methylamphetamine had been intended as payment for the services of another man who helped with the organisation of the heroin deal. The sentence imposed in respect of the methylamphetamine offence was ordered to be served concurrently with one of 7 years' imprisonment (equivalent to one of 4 years and 8 months' imprisonment under the transitional provisions) in respect of the heroin offence. The offender had a number of prior convictions for drug-related offences. The case came before the Court of Criminal Appeal on a Crown appeal. The appeal was dismissed.

62 In Bellissimo (1996) 84 A Crim R 465, a sentence of 5 years and 10 months' imprisonment (equivalent to 3 years and 10 months' imprisonment under the transitional provisions) was imposed upon a 36-year-old offender. He was convicted, after a trial, on a charge of possession of 20.8 grams of methylamphetamine with a purity of 6 per cent with intent to sell or supply. He had an extensive criminal record encompassing prior convictions in respect of drug offences. On appeal, this sentence was considered high, but not high enough to justify intervention.

63 In Samuels v The State of Western Australia (No 2) [2006] WASCA 222, the offender was convicted, after a trial, of one count of possession of methylamphetamine with intent to sell or supply and one count of possession of MDMA with intent to sell or supply. The quantity of methylamphetamine involved was 23.5 grams. It had a purity of 34 per cent. The quantity of MDMA was 315.8 grams. Its purity ranged from 21 to 23 per cent. The total sentence imposed was 6 years' imprisonment. This was made up of 5 years' imprisonment in respect of the methylamphetamine offence and 4 years' imprisonment, to be served partly concurrently, in respect of the MDMA offence. The Court of Appeal dismissed the appeal. Roberts-Smith JA, who wrote the lead judgment, said that "although the sentences are at the severe end, individually and in the aggregate they seem ... to fall within the general range of sentences for offences of this kind" (at [69]).

Count 3 - 4 years' imprisonment for 28 grams of heroin with a purity of 17 per cent

64 There are various cases, decided prior to the commencement of the transitional provisions, in which sentences of between 3 years and 5 years' imprisonment were considered appropriate for offences of possession of around 28 grams of heroin of varying purity with intent to sell or supply. Under the current sentencing regime, this equates to a range of between 2 years and around 31/2 years' imprisonment.

65 In R v Munro [2000] WASCA 285, the offender pleaded guilty under the fast track system to one count of possession of heroin with intent to sell or supply, 19 counts of fraud and one count of unlicensed driving. The heroin weighed 27.8 grams and had a purity of 52 per cent. The offender had become a heroin addict after a series of family tragedies. He had no relevant prior convictions and had demonstrated good rehabilitation from drug addiction prior to being sentenced. On a Crown appeal against sentence, a sentence of 3 years' imprisonment was imposed for the heroin offence (2 years' imprisonment under the transitional provisions), to be served concurrently with terms of 1 month's imprisonment in respect of each of the other 20 charges.

66 In "S" v The Queen [2000] WASCA 34, the offender pleaded guilty at an early stage to two counts of possession of heroin with intent to sell or supply and one count of possession of cocaine with intent to sell or supply. The offender had a criminal record, but only one minor conviction in relation to cannabis was drug-related. The quantities of heroin involved in the two counts were 58 grams and 22 grams with purities of 78 per cent and 79 per cent respectively. A sentence of 5 years' imprisonment (3 years and 4 months' imprisonment under the transitional provisions) was imposed in respect of the count involving 58 grams of heroin and 3 years' imprisonment (2 years under the transitional provisions) was imposed in respect of the count involving 22 grams of heroin. The offender was described as having a culpability equivalent to a drug courier. A sentence of 21/2 years' imprisonment was imposed in relation to the third count which involved 18.29 grams of cocaine with a purity of 74 per cent. All sentences were ordered to be served concurrently, giving rise to a total of 5 years' imprisonment. Originally the aggregate sentence had been a year longer but it was reduced on appeal to a total of 5 years' imprisonment to take account of the offender's early plea of guilty and assistance that he had provided to police. The assistance had led to the conviction of another person connected to the drug trade.

67 In Mada v The Queen [2003] WASCA 1; (2003) 137 A Crim R 460, the offender pleaded guilty to six counts involving the supply of heroin or possession of heroin with intent to sell or supply. The total amount of heroin involved in these offences was over 150 grams. The offender was not an addict. He sold the drugs wholesale to retail dealers. These dealers cut the drugs before selling them to users. The appellant was a first offender. He was providing assistance to authorities in relation to another matter that had occurred in prison. He had become engaged in the distribution of heroin for financial gain at a time when his business and personal life was in some difficulty. However, two of the offences were committed while the offender was on bail. The sentence originally imposed was reduced on appeal to take account of the fact that the offender had been declared a drug trafficker and had had his property confiscated. On appeal, a total sentence of 7 years and 4 months' imprisonment (prior to the operation of the transitional provisions) was imposed. A sentence of 3 years and 8 months' imprisonment (equivalent to about 2 years and 5 months' imprisonment under the transitional provisions) was imposed in respect of count 2, which involved 21.76 grams of heroin with a purity of 42 per cent. A significantly longer sentence of 5 years and 1 month's imprisonment was imposed in respect of count 4 which involved 28 grams of heroin with a purity of 50 per cent. This is equivalent to a sentence of 3 years and 4 months' imprisonment under the transitional provisions. However this offence was one of those committed while the offender was on bail.

68 In Gyurka [2001] WASCA 113; (2001) 120 A Crim R 407, a sentence of 5 years' imprisonment (3 years and 4 months' imprisonment under the transitional provisions) was imposed in respect of a count of possession of 27.79 grams of heroin with intent to sell or supply. The purity of the drug was 74 per cent. It was offered for sale for $10,000. The offender was also sentenced to terms of 3 years' imprisonment in respect of each of two other counts of selling smaller amounts of heroin (6.93 grams and 3.3 grams respectively). One of these terms was ordered to be served cumulatively upon the term of 5 years, resulting in an aggregate sentence of 8 years' imprisonment. The offender had pleaded guilty on the fast track. He had had four minor contacts with the law, all of which had occurred when he became involved with drugs following the break up of his marriage. Each of the sales had been made to an undercover police officer and all were allegedly organised by a co-offender. However, this offender had received part of the proceeds of the sale and was considered, for the purposes of sentencing, to be more than a mere courier. On appeal, the overall sentence was upheld as not being too severe.

69 In Watson v The Queen [2000] WASCA 119, the offender pleaded guilty to 11 counts related to dealing in serious drugs. The offences had been committed on a number of separate occasions over a period of months. Some of the offences had been committed while the offender was on bail and on parole. The aggregate sentence imposed was 15 years' imprisonment (prior to the operation of the transitional provisions). A sentence of 10 years' imprisonment was imposed in respect of the most serious offence involving 222.5 grams of heroin. This sentence was ordered to be served cumulatively upon the other terms, which were made concurrent with each other. One of the other offences involved a total of 54.79 grams of heroin with a purity ranging from 10 per cent to 24 per cent. A term of 5 years' imprisonment was imposed for this offence (3 years and 4 months' imprisonment under the transitional provisions). The offender had prior drug convictions. He was described as a large scale wholesaler and retailer at the upper end of the drug hierarchy. He dealt purely for financial gain.

70 Sentences in excess of 5 years' imprisonment prior to the operation of the transitional provisions (3 years and 4 months' imprisonment under the transitional provisions) have been imposed for offences involving similar quantities of heroin where the offender did not plead guilty. For example, in Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19 the offender was sentenced to 7 years' imprisonment (equivalent to 4 years and 8 months' imprisonment under the transitional provisions) for selling 27 grams of heroin (of an unstated purity) for $14,000. A concurrent term of 12 years' imprisonment was imposed in respect of an offence of possession of 100 grams of heroin (also of an unstated purity) with intent to sell or supply. An appeal by the offender against this sentence was unsuccessful. The offender had no previous criminal record. He had pleaded not guilty and had demonstrated no real remorse. He was not a drug user and dealt purely for financial gain. He was considered to have been the principal in the enterprise. The evidence had demonstrated an ongoing course of dealing in drugs.

71 The sentence imposed in Grakalic can be contrasted with the relatively lenient sentence (in the circumstances) imposed on the offender in Humphry v The Queen [2003] WASCA 53; (2003) 138 A Crim R 417. In Humphry, a sentence of 31/2 years' imprisonment (2 years and 4 months' imprisonment under the transitional provisions) was imposed on an offender in respect of his possession of 26.4 grams of heroin with intent to sell or supply. The heroin had a purity of 62 per cent. The offender was a 43-year-old man with a long history of substance abuse. He had pleaded not guilty in respect of the offence. He had committed the offence while on bail for another drug offence. The fact that he had recruited a courier was taken into account as an aggravating factor. He had a number of convictions in respect of prior drug offences.

72 Even allowing for the fact that the quantity and the purity of a drug is by no means determinative of the sentence to be imposed and that each case depends upon its own circumstances, in my respectful opinion this review indicates that the sentences imposed in respect of each of counts 2 and 3 was so severe as to exceed the limits of an acceptable exercise of discretion. It also seems to me that this had the consequence that the total sentence of 7 years and 4 months' imprisonment imposed in respect of the entirety of the appellant's offending was too severe. This last conclusion is reinforced when regard is had to the total sentence imposed in some of the cases.

73 A total effective sentence of 6 years' imprisonment was imposed on the offender in Samuels. I have said that in that case the offender had been convicted, after a trial, of a serious offence involving a very large quantity (315.8 grams) of MDMA and of another involving 23.5 grams of methylamphetamine with a purity of 34 per cent (a good deal higher than that of 14 per cent involved in count 2 of this case).

74 I have also said that an aggregate of 6 years' imprisonment was imposed in Colangelo for three offences involving a total of 79.62 grams of methylamphetamine (with a purity ranging up to 48 per cent) and 74 tablets of MDMA.

75 A similar aggregate sentence was imposed on the offender in Le v The Queen [2004] WASCA 214; (2004) 147 A Crim R 269. This case dealt with five offences involving the sale of a total quantity of 56.42 grams of heroin (twice that in the present case) with an average purity of around 20 per cent, a total quantity of 34.84 grams of methylamphetamine (8 grams more than in the present case) with a very high purity between 81 - 83 per cent and an offence of offering to sell 340 grams of heroin. A total effective sentence of 9 years and 3 months' imprisonment (equivalent to 6 years and 2 months' imprisonment under the transitional provisions) was imposed. The offender, who was a heroin addict, had pleaded guilty on the fast track.

76 In Olomi v The State of Western Australia [2004] WASCA 304, an aggregate term of 5 years and 4 months' imprisonment was imposed on an offender in respect of two counts of possession of prohibited drugs with intent to sell or supply. The first involved 53.85 grams of MDMA and the second involved 64.48 grams of methylamphetamine (the purity of the drug was not stated). These offences had been committed while the offender was on parole in respect of an armed robbery offence. They were committed partly to fund the offender's drug habit but mainly for profit. The offender had pleaded guilty at the earliest opportunity. The Court of Criminal Appeal considered that the total sentence was lenient in all the circumstances.

77 In Hollingsworth, the total effective sentence of 5 years' imprisonment was imposed on the offender in respect of six offences involving a total quantity of 56.7 grams of methylamphetamine (with purities ranging from 2 to 11 per cent) and nine MDMA tablets. I have said that the offender was heavily implicated in the drug trade and had only pleaded guilty to the offences at a very late stage.

78 In Hafner, the total sentence of 7 years' imprisonment (which, as I have said, is equivalent to one of 4 years and 8 months' imprisonment under the transitional provisions) was, as I have also said, imposed in relation to two offences, one involving 244 grams of heroin and the other involving 21.2 grams of methylamphetamine with a purity of 36 per cent. This sentence was described on appeal as lenient, but not manifestly inadequate.

79 A very short aggregate sentence, comparatively, of 5 years' imprisonment (equivalent to 3 years and 4 months' imprisonment under the current regime) was, as I have said, imposed on the offender in "S" in respect of two offences involving a total of 80 grams of heroin with a purity of around 78 to 79 per cent and one offence involving 18.29 grams of cocaine with a purity of 74 per cent. However, as I have also said, this total sentence took into account the assistance given by the offender to the police.

80 In the present case, the appellant had, as the sentencing Judge noted, an intimate involvement in transactions of relatively large quantities of both methylamphetamine and heroin for commercial gain. He was not merely a street pedlar or conduit for the sale of drugs. He did, however, have a number of sentencing considerations in his favour. He had pleaded guilty on the fast track to the offences charged and had cooperated with the police. He was of previous good character and had demonstrated good signs of rehabilitation. Accepting that these considerations, and the others mentioned by the sentencing Judge, are very much outweighed by the seriousness of the offending and the need for personal and general deterrence, it seems to me, with due respect, that the total sentence imposed was so severe as to have been inappropriately long, having regard to the appellant's criminal conduct viewed as a whole.

81 I would consequently allow the appeal on this ground. In my opinion the appropriate total sentence should be one of 5 years and 6 months' imprisonment. I would achieve that result by setting aside the sentences imposed by the sentencing Judge in respect of counts 2 and 3 and substituting, in lieu, sentences of 2 years and 6 months' imprisonment and 3 years' imprisonment respectively (allowing for the effect of the transitional provisions), to be served cumulatively.

82 As to ground 6, in my opinion there was no error of principle arising only out of the fact that the sentence imposed on count 2 was ordered to be served wholly cumulative upon those imposed in respect of counts 1 and 3.

83 In the particulars to this ground the appellant contends (somewhat obscurely) that "The sentencing of offenders guilty of multiple counts will require particular circumstances before sentences are made cumulative". However, other particulars refer to the fact that the offences were committed on the same day and "were committed in circumstances which were very similar and formed part of the same series of offences by the Appellant". In supporting submissions, counsel for the appellant accepted that there were separate transactions involving different types of drugs, but said that the appellant was entitled to concurrent or partly concurrent sentences for the reasons particularised. He also contended that the sentencing Judge's failure to make the sentences concurrent or partially concurrent has resulted in a total effective sentence imposed that is manifestly excessive. Given the conclusion at which I have already arrived in respect of ground 3, it is unnecessary for me to deal any further with this last contention. I will accordingly deal only with the other contentions to which I have referred.

84 In Dickens v The Queen [2004] WASCA 179; (2004) 147 A Crim R 343 (at [11] - [12]), McLure J explained that:

"The question whether to make sentences for more than one offence cumulative or concurrent arises at two of the three stages in the sentencing process for multiple offences. In the ordinary course of sentencing for multiple offences, the sentencing court will firstly determine the appropriate sentence for each offence, secondly assess whether the sentences should be made concurrent or cumulative in accordance with established principle and finally review the total sentence to be imposed by reference to the principle of totality including the question whether the total sentence is crushing.

At the second stage, the relevant principle is what is variously described as the 'one transaction' or 'continuing episode' rule. It is a general rule, or what has been described as a good working rule (Ruane v The Queen (1979) 1 A Crim R 284) that when a number of offences arise out of the one transaction or continuing episode, any terms of imprisonment for the offences are to be made concurrent. However, a sentencing Judge must proceed to the third stage and consider whether the application of that general rule would result in an appropriate measure of the total criminality involved in the conduct: R v White [2002] WASCA 122; R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554. If not, then the appropriate result should be achieved, if practicable, by making the sentences wholly or partially cumulative rather than by adjusting the otherwise appropriate sentence: Mill v The Queen (1988) 166 CLR 59 at 63 ... "

85 In relation to the so-called one transaction rule (as to which see Worthington v Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 at [590] - [591]), Gleeson CJ, in Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at 618, quoted with approval what was said by Wells J in Attorney-General v Tichy (1982) 30 SASR 84 at 92 - 93. In part, Wells J had there said that:

"Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct the judge is likely to find concurrent sentences just and convenient."

86 As was explained by McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610 at 623:

"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts."

(See also Johnson at 625; Koushappis (1988) 34 A Crim R 419 at 422; Western Australia v Miller [2005] WASCA 53; (2005) 30 WAR 38 at 42 [17]; Worthington at 591 and the cases there cited.) In Johnson, Gleeson CJ suggested (at 618), when discussing an appeal against a decision to impose cumulative sentences, that:

"Ultimately, justice requires due consideration of whether, and to what extent, the appellant 'was truly engaged upon one multi-faceted course of criminal conduct', and whether the sentences imposed properly reflected the outcome of that consideration."

87 Successive crimes, each involving the commission of the same or closely related offences, committed within a short space of time, are sometimes regarded as appropriate for concurrent sentences: Pepper v Western Australia [2005] WASCA 177; (2005) 30 WAR 447 at 471 per Roberts-Smith JA. Even distinct and unrelated offences have sometimes been treated as if they were related for the purposes of concurrency because they were committed within a short period of time: Miller at 42; Worthington at 591. However, the fact that offences are committed soon after one another, or even simultaneously, does not necessarily make them part of a single transaction for the purposes of this rule: Shaw (1989) 39 A Crim R 343 at 347 per Brinsden J; Pepper at 471 per Roberts-Smith JA; Hollingsworth at [32]; Coyne v The Queen, unreported; CCA SCt of WA; Library No 2325; 1 May 1978.

88 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: Sinagra-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."

89 In my opinion, the same is true of the sale of heroin and 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.

90 I would allow the appeal in part, set aside the sentences imposed by the sentencing Judge on counts 2 and 3 and substitute, in lieu, a sentence of 2 years and 6 months' imprisonment in respect of count 2 and one of 3 years' imprisonment in respect of count 3. I would leave undisturbed the sentence of 11 months' imprisonment imposed in respect of count 1 and that of 8 months' imprisonment imposed in respect of the fourth charge. I would order that the sentences imposed in respect of count 1 and the fourth charge be served concurrently with each other and with that imposed in respect of count 3. The sentence imposed in respect of count 2 is to be served cumulatively upon the sentence imposed in respect of count 3. This gives rise to a total term of 5 years and 6 months' imprisonment, commencing from 29 November 2005. The appellant should remain eligible for parole. He would consequently have to serve a total term of 3 years and 6 months' imprisonment before becoming eligible for parole.

91 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with those reasons and have nothing to add.

Legislation Amendment and Repeal Act 2003

Property Confiscation Act 2000

Drugs Amendment Act 1995

BORBIL -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 24 (1 February 2007)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (181 paragraphs)

BORBIL -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 24 (1 February 2007)

Count 2 - 3 years and 4 months' imprisonment for supplying 26.806 grams of methylamphetamine with a purity of 14 per cent (3.75 grams net)

Count 3 - 4 years' imprisonment for 28 grams of heroin with a purity of 17 per cent

Legislation Cited (5)

Cases Cited (14)