Court of Appeal (WA)|2011-06-01|Before: Mr J, Newnes JA, Lure P, Hall J

BOND -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 123 (1 June 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BOND -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 123

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentence - Possession of methylamphetamine with intent to sell or supply - 3.061 kg of methylamphetamine - 188.65 grams pure methylamphetamine - Courier - Appeal against sentence of 9 years' imprisonment allowed - Appellant sentenced to 7 years' imprisonment

Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152

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

Civello v The State of Western Australia [No 2] [2008] WASCA 163

Fernandes v The State of Western Australia [2009] WASCA 227

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

Hili v The Queen [2010] HCA 45; (2010) 272 ALR 195

Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522

Monument v The State of Western Australia [2007] WASCA 239

Stapleton v The Queen [2004] WASCA 130

The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302

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

The State of Western Australia v Tran [2008] WASCA 183

2 NEWNES JA: This is an appeal against a sentence of 9 years' imprisonment imposed on the appellant by Goetze DCJ in the District Court on one count of possession of methylamphetamine with intent to sell or supply. The appellant contends that the sentence was manifestly excessive. He also says that the sentencing judge made a material error as to the time at which the appellant had pleaded guilty to the charge.

3 On 21 December 2010, the application for leave to appeal was referred to the hearing of the appeal.

4 On 7 March 2009, the appellant was travelling from New South Wales to Western Australia when police stopped and searched his car at Eucla. The search revealed a total of 3.061 kg of methylamphetamine concealed in the car, made up of four bags containing 881 g methylamphetamine of 7% purity, 878 g of 7% purity, 882 g of 6% purity and 420 g of 3% purity, respectively. The total amount of pure methylamphetamine was therefore 188.65 g.

5 The appellant was charged with one count of possession of methylamphetamine with intent to sell or supply. After the committal papers were served but before the committal hearing took place, the appellant pleaded guilty to the charge. There was subsequently a trial of an issue as to whether the appellant was simply a courier or whether he was a drug dealer. The sentencing judge was not persuaded that the appellant was more than a courier.

6 The sentencing judge noted that the appellant was 22 years of age when the planning for the offending took place and 23 years of age when the offence occurred. He was living in a de facto relationship and his de facto partner was in the late stages of pregnancy with their first child. Since the appellant's arrest his de facto partner had moved to the eastern seaboard where she had family support. His Honour referred to a number of references which described the appellant as ordinarily hard-working and trustworthy.

7 His Honour observed that the offending had not been a spur of the moment act, but a planned undertaking. The appellant had engaged in it for personal financial gain. It involved a large amount of

methylamphetamine, a total of 3.061 kg, but at a low to moderate level of purity. His Honour described the appellant as a 'higher end' courier.

8 The sentencing judge noted that the appellant had no relevant criminal record, but, on his own admission, he had previously been involved in illicit drugs. His Honour accepted that the appellant had shown remorse for the offending.

9 His Honour noted that the appellant was entitled to a discount for his plea of guilty. In relation to the timing of the appellant's plea of guilty, the following exchange occurred in the course of his Honour's sentencing remarks:

Goetze DCJ: This was a late plea of guilty, not a fast-track plea; that's correct, isn't it Mr Walton [counsel for the State]?

Mr Walton: As I understand it, yes.

Goetze DCJ: Yes.

Ms McKenzie: Was in committal, but not - was then - so it's not at a late stage after it was listed for trial. But once committal papers were served, your Honour, he pleaded guilty.

10 Later in the course of his sentencing remarks the sentencing judge referred to the appellant having 'pleaded guilty once the matter was committed'.

11 His Honour sentenced the appellant to 9 years' imprisonment, backdated to 22 December 2009 to take into account time spent in custody. The appellant was made eligible for parole.

12 It is unnecessary to set out the grounds of appeal in full. The appellant relied in substance on two grounds: first, that the sentence was manifestly excessive and, secondly, that the sentencing judge had made a material error as to the time at which the appellant had pleaded guilty to the charge.

13 On the hearing of the appeal, counsel for the State conceded that the sentencing judge's statement that the plea of guilty occurred 'once the matter was committed' was an error. It was common ground on the appeal that the appellant had pleaded guilty to the charge after the committal papers were served on him but before the committal hearing. The issue was whether the sentencing judge's error as to the time of the plea was a material error. A material error of fact is one that affects, or is capable of affecting, the sentence actually imposed by the sentencing judge: Fernandes v The State of Western Australia [2009] WASCA 227 [10].

14 In Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Gaudron, Gummow and Callinan JJ described the significance of a plea of guilty as follows:

It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. In Siganto v The Queen it was said:

'a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case.'

It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice [11]. (footnotes omitted)

15 The earlier in proceedings that a plea of guilty is made, or indication is given that it will be made, the greater the mitigation: Sentencing Act 1995 (WA) s 8(2).

16 The sentencing judge accepted that the appellant's plea indicated both remorse and an acceptance of responsibility, and that it also played a part in facilitating the course of justice. His Honour said that the appellant was entitled to a discount for the plea. No indication was given of the extent to which the sentence was in fact reduced, but there was no requirement to do so. The sentencing judge was only required to state that the sentence was reduced from what it would otherwise have been by reason of the plea of guilty: Sentencing Act s 8(4).

17 But in relation to the stage in the proceedings at which the plea of guilty was made the sentencing judge was clearly in error, the plea having been made at an earlier point than his Honour apparently understood it to have been made. Moreover, it is by no means clear from his Honour's sentencing remarks when, or at what point, 'once the matter was committed', he understood the appellant to have pleaded guilty. The full extent of his Honour's misapprehension is therefore not evident. While it cannot be said that the error did affect the sentence imposed, it seems to me that it clearly had that capability and may have done so. In the circumstances, it cannot be known whether the appellant received the full benefit of his plea. I would uphold this ground of appeal.

18 In any event, in my respectful view the sentence was manifestly excessive. The relevant general principles are well-known. When considering whether a sentence is manifestly excessive, it is necessary to view it in light of the maximum sentence prescribed by law for the crime (in this case 25 years' imprisonment), the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type, and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342.

19 However, in considering customary sentencing standards, caution is needed when trying to determine the level of severity of a particular sentence by comparison with those imposed in other cases. That is because there will inevitably be differences in the circumstances of offenders and offences. But it is appropriate to review sentences for like offences in an attempt to achieve consistency in sentencing: see The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 [19]; Hili v The Queen [2010] HCA 45; (2010) 272 ALR 195 [53].

20 Moreover, it is well established that the major consideration in the sentencing process for an offence of this nature is personal and general deterrence: Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [52]. The amount of drugs involved is a significant factor in determining an appropriate sentence, as is the degree of purity: The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363 [9]; The State of Western Australia v Tran [2008] WASCA 183 [9]. But there are other matters which must also be taken into account including the nature and level of the offender's participation in drug dealing and whether the offending was committed solely for commercial gain: see Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [67] - [70]; Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [50]; Borbil [52]. Matters personal to the offender are of limited weight: see Tulloh [12], [43], [46].

21 The respondent, most helpfully, supplied a schedule containing a large number of cases involving sentencing for drug offences, not all of which were canvassed in the course of argument. I have considered the cases referred to in argument and a number of additional cases. It is unnecessary to refer to them all. But, always bearing in mind the limited extent to which other cases can provide useful guidance, it is appropriate to refer briefly to some of them.

22 In Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522, the offender pleaded guilty to possession of 422.5 g of methylamphetamine, with a purity of 59.3% (250.5 g of pure drug), with intent to sell or supply. His involvement was only as a courier (although, as in the present case, the court found that he knew he must have been carrying a large quantity of drugs). He had no relevant prior convictions. His application for leave to appeal against a sentence of 6 years and 7 months' imprisonment (after the operation of the transitional provisions) was dismissed.

23 In Stapleton v The Queen [2004] WASCA 130, the offender, who was 58 years of age, pleaded guilty to supplying 437 g of methylamphetamine with a purity of 58% (253.4 g of pure drug). His part in the enterprise was found to have been unsophisticated and he was to have received only a small reward in respect of his role. He had no relevant previous convictions. He was sentenced to a term of 6 years' imprisonment (after the operation of the transitional provisions).

24 In Monument v The State of Western Australia [2007] WASCA 239, the offender, who was 37 years of age, pleaded guilty to, relevantly, possession of methylamphetamine with intent to sell or supply. The offence involved 499 g of methylamphetamine at a purity of 78%, amounting to 398 g of pure drug. The appellant was described as 'close' to those manufacturing the drug. He had no relevant prior convictions. On appeal, the sentence of 6 years' imprisonment was described as 'moderate' [18].

25 In Civello v The State of Western Australia [No 2] [2008] WASCA 163, the offender was convicted after trial on three charges of possession of methylamphetamine with intent to sell or supply. He was found to be dealing in drugs on a large scale for commercial gain. The quantity of methylamphetamine involved was 381 g of varying degrees of purity, but amounting to approximately 220 g of pure drug. He was sentenced to a total effective term of 10 years' imprisonment. An appeal against the sentence, described by the court as 'relatively severe', was dismissed.

26 In Galbraith v The State of Western Australia [2011] WASCA 70, the offender, who was 27 years of age, pleaded guilty on the fast track, relevantly, to one count of possession of methylamphetamine with intent to sell or supply. The charge related to a total quantity of 971.6 g of

methylamphetamine, with a total quantity of pure drug of 738.3 g. The appellant had an extensive record of offending in relation to illicit drugs and weapons. An appeal against a sentence of 9 years' imprisonment was dismissed.

27 In my opinion, having regard, in particular, to the plea of guilty (albeit, not at the earliest stage), the quantity of drugs involved, the acceptance by the sentencing judge that the appellant was a courier rather than a drug dealer, and the appellant's age and lack of relevant prior convictions, a sentence of nine years' imprisonment in this case was manifestly excessive.

28 I would grant leave to appeal, allow the appeal and set aside the sentence imposed by the sentencing judge.

29 It is then necessary to resentence the appellant. The only appropriate sentence is a term of immediate imprisonment. I would sentence the appellant to 7 years' imprisonment, that term to commence from 22 December 2009. The appellant should be eligible for parole.

(3) set aside the sentence imposed by the sentencing judge;

(4) sentence the appellant to a term of 7 years' imprisonment, the term to commence from 22 December 2009, with eligibility for parole.

Borbil v The State of Western Australia

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Judgment (57 paragraphs)

BOND -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 123 (1 June 2011)

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