Criminal law and procedure - Sentencing - Drug offences - Possession of cocaine with intent to sell or supply - Possession of heroin with intent to sell or supply - Breach of suspended term of imprisonment for drug offence - Cocaine totalling 490.2 grams with a purity between 68 and 74% - Pleas of guilty - Whether total sentence of 8 years 2 months excessive

Criminal Appeals Act 2004 (WA), s 31

Sentencing Act 1995 (WA), s 80(1), s 80(3)

Bosworth v The State of Western Australia [2007] WASCA 144

Darwell (1997) 94 A Crim R 35

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

Jarvis v The Queen (1993) 20 WAR 201

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

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Miller v The State of Western Australia [2006] WASCA 163

Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

1 OWEN JA: I agree with the reasons to be delivered by Miller JA and with his Honour's conclusion that the appeal should be dismissed. There is nothing I can usefully add.

3 MILLER JA: The appellant was indicted on two counts of possession with intent to sell or supply prohibited drugs. The offences were alleged to have occurred on 9 July 2004 at Highgate. The first count was one of possession of cocaine with intent to sell or supply and the second was one of possession of diacetylmorphine (heroin) with intent to sell or supply. He initially pleaded not guilty to both charges, but later changed his pleas to ones of guilty. He was convicted on those pleas on 3 November 2005. On that day, he also admitted that, on 22 November 2002, in the District Court at Perth, he had been convicted of possession of a prohibited drug and sentenced to 2 years 6 months' imprisonment, suspended for 2 years. By reason of the convictions on the indictment, he admitted to breach of the suspended imprisonment order and became liable to be resentenced in respect of the original offence.

4 After hearing submissions on 3 November 2005, the learned sentencing judge remanded the appellant in custody and, on 2 December 2005, sentenced him to a term of 6 years 6 months' imprisonment on the first count on the indictment, 3 years' imprisonment on the second count on the indictment and 20 months' imprisonment in respect of the breach of the suspended order of imprisonment. The sentences imposed on the two counts on the indictment were ordered to be served concurrently, but the sentence of 20 months' imprisonment imposed in relation to the breach of suspended imprisonment was ordered to be served cumulatively. The result was an effective sentence of 8 years 2 months. The appellant was ordered to be eligible for parole.

5 The appellant was granted leave to appeal on 16 May 2006. The grounds of appeal are two:

GROUND 1 - The sentences imposed were manifestly excessive in that they were outside the range of sentences open to the Learned Sentencing Judge in the proper exercise of his sentencing discretion having regard to the principles and sentences outlined in Tulloh v [The Queen] (2004) 147 A Crim R 169 [sic 107] .

Ground 2: That by ordering that the sentences imposed in respect of counts 1 and 2 be served cumulatively upon the restored period of the sentence previously suspended, the Learned Sentencing Judge erred by imposing a total effective sentence that infringed the totality principle of sentencing.

6 Ground 1 contends that all sentences were manifestly excessive. It is said that they were manifestly excessive because they were outside the range of sentences open when regard is had to the principles and sentences outlined in Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107. This is a puzzling ground, because the decision in Tulloh, including the principles and the cases which are referred to in that case, are authority only for the proposition that sentences of up to 15 years' imprisonment (prior to application of the transitional provisions) will be imposed for possession with intent to sell or supply of large quantities of methylamphetamine (see, particularly, Miller J, [41] and McLure J, [48]). In argument, counsel for the appellant contended that each of the three sentences imposed was excessive.

7 On the afternoon of 9 July 2004, police executed a search warrant at the address of the appellant in Highgate. A search revealed two plastic bottles hidden in an air vent under the bath in the bathroom. The bottles were securely wrapped in electrical tape. When questioned about these bottles, the appellant stated that he had placed them in that position and was aware that they contained cocaine. He said that he was keeping the bottles for a friend.

8 Analysis of the contents of the bottles revealed a large amount of cocaine powder. There was a total of 490.2 grams, with a purity of between 68 and 74%.

9 During the search, a small plastic bag containing heroin powder was located. The appellant said that it belonged to him and that he had been given it as payment for holding on to the two bottles of cocaine. Analysis of the powder revealed a weight of 10.5 grams, with a purity of 18%.

10 The suspended imprisonment order had been imposed in the District Court on 22 November 2002 for the offence of possession of a prohibited drug with intent to sell or supply. That drug consisted of 25.2 grams of amphetamine paste of 18% purity. The term of imprisonment imposed was 2 1/2 years, suspended for a period of 2 years. The order was breached by the pleas of guilty entered by the appellant to the charges contained within the indictment.

11 During sentencing submissions before the learned sentencing judge, the appellant was described as having fallen into 'the wrong crowd' after his arrival in Australia as a refugee at the age of 15 years. By the age of 18, he was experimenting with heroin and at the age of 24, he became addicted to it. Nevertheless, he held down a full-time job at a bakery and he maintained a de facto relationship, which led to the birth of twin boys, who were aged 6 years at the time of sentencing.

12 Counsel for the appellant conceded that, by reason of the offences committed by the appellant on 9 July 2004, there was no other course open to the court than to 'have that sentence descend upon the offender'.

13 The explanation given by the appellant's counsel for the commission of the offences the subject of the indictment was that an associate had told him that if he would hold a quantity of cocaine, he would be rewarded with a quantity of drugs. It was said that the heroin was that reward. The appellant was described as 'effectively [was] a bailee of the goods' and it was contended that the appellant had been told that he would be required to hold the drugs for only a very short period of time. The heroin that he had in his possession was said to be intended purely for his own use. It was said that he was a large-scale user of drugs, dealing in quantities of drugs to subsidise his own habit.

14 Counsel for the appellant was asked whether the appellant had assisted police by identifying the true owner of the cocaine. Counsel said that he had been precluded from giving that information because of fear of retribution to himself and his family.

15 Counsel for the appellant made mention of the plea of guilty and asked the learned sentencing judge to take into account the totality principle and to impose concurrent sentences on the indictment, which necessarily would be added to the period he was required to serve for breach of the suspended sentence. The plea of guilty was not a fast-track plea, but was described as a plea at an early opportunity.

16 The learned sentencing judge related the facts of the case and pointed out that heroin and cocaine were both regarded as hard drugs at the top of the drug hierarchy. His Honour drew attention to the problems caused within the community by the drug trade and what he described as the waste of young lives, lost or ruined and the lives of families irretrievably damaged in consequence of drugs and drug-related crime. His Honour made it clear that deterrence was the uppermost consideration in the sentencing process:

The community will not tolerate the offending of those involved in drugs at whatever level they may be participating, nor can the courts condone such conduct. Only harsh sentences can be imposed to reflect the seriousness of such offending and to deter you and those who might be like minded from offending in the future. Persons who believe there is easy money to be made by preying on the vulnerabilities of others must realise they will face lengthy terms of imprisonment for such offending.

17 Reference was made to a number of decided cases and to the maximum penalties (25 years) applicable to both counts on the indictment. Full consideration was given to the appellant's personal circumstances and the learned sentencing judge recounted what mitigating circumstances there were for the appellant. These included his addiction to drugs, his attempts to overcome that addiction and his family background.

18 The learned sentencing judge recounted the circumstances in which Hammond CJDC had imposed the suspended sentence on 22 November 2002, pointing out that his Honour had then said that the appellant must realise that if he broke the law in any significant way during the period of 2 years, he would have to return to the court and the term of 2 1/2 years' imprisonment would have to be imposed. He was asked whether he understood that and his counsel said that he did. The learned sentencing judge made it clear that the appellant could not have been more clearly warned of the consequences of reoffending.

19 The learned sentencing judge sentenced the appellant for the offences on the indictment on the basis that he was hiding cocaine for another person, by whom it was said he was exploited. His Honour added:

Even so, for whatever purpose, you were in possession of a substantial quantity of cocaine. Anyone who engages in the illicit drug trade, whatever their role in the enterprise, must expect heavy sentences in which general deterrence will be the principle [sic principal] purpose of the punishment.

20 The learned sentencing judge then had regard to what he described as the mitigating factors. He referred to co-operation with the police at the time of the execution of the search warrant and admissions which were then and later made. He referred to the pleas of guilty at an early opportunity and accepted them as indicating remorse and assistance to the administration of justice. He accepted also, evidence of remorse contained in a letter written to the court, although pointing out that much of it was self-pity. His Honour took account of the fact that the appellant had participated in a drug and alcohol workshop at the Hakea Prison.

21 When it came to sentencing, the learned sentencing judge said:

The quantities of the drugs involved is a relevant - but of course only one of the matters for consideration. 490 grams of cocaine is 245 times the amount required to satisfy the presumption of intent to sell and supply. The purity was at a high level, between 68 and 74 per cent. The 10 grams of heroin is 17.5 times [sic 5 times] the presumptive amount, 18 per cent purity is substantially above street level. Your involvement in holding the drugs and possession of them albeit not as a distributor or a courier is nevertheless significant.

Cocaine and heroin are both in the higher range of seriousness in the hierarchy of drug types. They are so regarded because of the serious effects they have on consumers and their highly addictive properties. You well know that and you well know how such drugs can ruin the lives of young people and families. You are the living example of that. The plain fact of the matter is that good antecedents, contrition and taking steps towards rehabilitation are not weighty factors having regard to the need for general deterrence; that is, personal factors do not outweigh the need for a custodial sentence.

22 For the breach of suspended sentence, the learned sentencing judge imposed what would have been the 2 1/2 years which had been suspended for 2 years. By reason of the transitional provisions, it was reduced to 20 months.

23 The learned sentencing judge then turned to the matters the subject of the indictment. Taking into account 'all the factors' and making an allowance for the plea of guilty and the application of the transitional provisions, sentences of 6 years 6 months were imposed on count 1 and 3 years on count 2. The sentence imposed on count 2 was ordered to be served concurrently with that imposed on count 1. In this respect, the learned sentencing judge took account of the totality principle. His Honour then ordered that the sentence on count 1 should be served cumulatively upon the sentence imposed for breach of the suspended sentence. This meant a total of 8 years 2 months' imprisonment.

24 This ground contends that the sentences imposed were manifestly excessive. It adds that they were manifestly excessive because they were outside the range of sentences open, having regard to the principles outlined in Tulloh. As I have pointed out, this contention makes no sense, other than in relation to the first count on the indictment. Tulloh's case deals with possession with intent to sell or supply of large quantities of methylamphetamine. However, because of the way in which the case was argued, I am prepared to consider whether each of the sentences imposed was excessive.

25 This was by far the most substantial sentence imposed upon the appellant. 6 years 6 months' imprisonment was a severe sentence, but it was in line with what was said in Tulloh. Tulloh is authority for the proposition that possession with intent to sell or supply large quantities of methylamphetamine (with which cocaine can be equated) will, generally speaking, bring about sentences of up to 10 years' imprisonment, after application of the transitional provisions. I said as much in Bosworth v The State of Western Australia [2007] WASCA 144 [40]:

The first category of cases to consider are those cases which involve possession, with intent to sell or supply, of large quantities of methylamphetamine. Generally speaking, sentences of up to 10 years' imprisonment (where appropriate converted under the post-transitional provisions) can be said to be within the customary sentencing range: Tulloh (supra); Cameron v The Queen [2000] WASCA 286; Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19; Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522; Stapleton v The Queen [2004] WASCA 130; and Macri v The State of Western Australia [2006] WASCA 63. In some cases, even where pleas of guilty have been entered, sentences as high as 13 years or more have been imposed for multiple counts of possession of substantial quantities of methylamphetamine and MDMA: Sinagra-Brisca v The Queen [2004] WASCA 68.

It is unnecessary to refer in any detail to the cases which are cited in this passage. Many of them were referred to in Tulloh by myself at [21] et seq and by McLure J at [49]. Most of the cases there referred to involved pleas of guilty, many of them being fast-track pleas of guilty.

26 Comparison between the sentence imposed upon the appellant on the first count on the indictment and those which are set out in the judgments in Tulloh indicates that a sentence of 6 years 6 months was not outside the range of sentences that the appellant could expect.

27 Although it was argued that the appellant played a lesser role than many of the offenders in the cases to which reference is made in Tulloh, I am unable to accept that proposition. The appellant played an important part in the distribution of a very substantial quantity of cocaine. He did so in the full knowledge that he was holding with intent to sell or supply (as a party) this drug. Although counsel for the appellant suggested that a courier might be more culpable than was the appellant in this case, I am unable to accept that submission. The appellant was no less culpable than a courier. He was a vital cog in the wheel of distribution, enabling those distributing the cocaine to hide it in his possession until it was required.

28 I do not consider that because the appellant was addicted to heroin and had received a quantity of heroin in return for holding the drug, this should have resulted in a lesser sentence than that imposed. The holding of the cocaine was part of a distribution network and constituted criminality of the most serious kind. That criminality was aggravated by the quantity of drug involved. The weight and purity of the drug was not elevated by the learned sentencing judge to be the chief factor to be taken into account, but it was clearly a matter to be considered in the exercise of the sentencing discretion: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584.

29 I am unable to see any substance in the contention that the sentence imposed for the possession with intent to sell or supply the quantity of cocaine was manifestly excessive, or outside the range of sentences open.

30 The appellant was sentenced to 3 years' imprisonment for possession of the 10.5 grams of heroin. It had a purity of approximately 18%. No cases were relied upon to suggest that the sentence of 3 years was manifestly excessive, or beyond the range of sentences that could have been expected. Further, as the sentence was ordered to be served concurrently with that imposed upon count 1, it is difficult to understand how the appellant can complain about it. Nevertheless, it was submitted that the sentence of 3 years was an excessive sentence in the circumstances.

31 My analysis of sentences for possession with intent to sell or supply of small quantities of methylamphetamine (between 3 and 65 grams) contained in Bosworth at [41] would suggest that there is a general consistency in sentences for mid-range dealers in that drug of between 2 and 4 years' imprisonment. They are cases in which there have generally been pleas of guilty. As heroin and methylamphetamine are in the same category of prohibited drugs (Darwell (1997) 94 A Crim R 35, 40 (Malcolm CJ, Kennedy & Franklyn JJ concurring), the sentence of 3 years' imprisonment imposed for possession with intent to sell or supply of 10.5 grams of heroin of 18% purity cannot be said to have been excessive.

Sentence for breach of suspended sentence

32 Counsel for the appellant conceded at the sentencing hearing that it was inevitable that the appellant would be required to serve the 2 1/2-year sentence imposed by Hammond CJDC in the District Court at Perth, which had been suspended for a period of 2 years. By reasons of the transitional provisions, it became a 20-month sentence. The learned sentencing judge made mention of the fact that the appellant's counsel in submission was unable to 'suggest or present that there were such circumstances which would warrant anything other than the suspended imprisonment being imposed'.

33 Section 80(1) of the Sentencing Act 1995 (WA) provides that if a person has been convicted of offences such as those committed by the appellant, the court may order that the person serve any term of imprisonment that was suspended. Section 80(3) provides that a court must (my emphasis) make an order that the person serve the term of imprisonment 'unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed'.

34 There was no circumstance which was brought to the attention of the learned sentencing judge to suggest that anything other than the term of imprisonment imposed by Hammond CJDC should be imposed upon the appellant. At the hearing of the appeal, counsel for the appellant was only able to point to the fact that the appellant had served a substantial portion of the suspended term before committing the offences the subject of the indictment. However, the offences the subject of the indictment were so serious that, in my opinion, there was no alternative open to the learned sentencing judge other than to impose the term which had been fixed by Hammond CJDC. I can see no substance in the contention that to impose it was manifestly excessive in the circumstances.

35 This ground contends that, by ordering the sentences imposed in respect of counts 1 and 2 on the indictment to be served cumulatively upon the restored period of the sentence previously suspended, there was an infringement of the totality principle of sentencing. It was contended that there was no justification for ordering total accumulation and that some adjustment was required to ensure that the aggregation of the punishment was a just and appropriate measure of the total criminality involved.

36 The written submissions of the appellant called for 'the merciful intervention of [the] Court'. This submission is totally misconceived. The Court of Appeal is not empowered to intervene 'mercifully', which presumably means exercising its discretion in a manner different from the way in which the sentencing Judge exercised his or her discretion for merciful reasons. The proper principles on which an appellate court might interfere with a discretionary judgment by a sentencing Judge are well established: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); Criminal Appeals Act 2004 (WA), s 31.

37 The totality principle of sentencing is well established. It is sufficient to refer to Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 62 - 63 and to Jarvis v The Queen (1993) 20 WAR 201, where Ipp J at 207 said:

The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: see Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; Evangelista v The Queen; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika [1986] NTSC 32; (1986) 83 FLR 312.

More recently, in this court, in Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330, Malcolm CJ dealt exhaustively with the principle at [10] et seq.

38 In the present case, it was inevitable that the sentences the subject of the indictment would be accumulated with the sentence in respect of the breach of the order of suspended imprisonment. To accumulate them in that way and to lead to an effective sentence of 8 years 2 months led to a severe sentence, but it was not, in my view, one which was crushing. Instead, it was proportionate to the degree of criminality involved in the appellant's offending. In my opinion, even taking a 'last look' at the total imprisonment which was imposed by the learned sentencing judge, the sentence was still proportionate to the degree of criminality involved: Jarvis, 206 - 207 (Ipp J).

39 The appellant received a severe sentence. 8 years 2 months represents a sentence of 12 years 3 months prior to the application of the transitional provisions. That is a factor which it is appropriate to bear in mind: Miller v The State of Western Australia [2006] WASCA 163, [22] (Wheeler JA). Nevertheless, although the effective sentence imposed upon the appellant was severe, it properly represented the criminality of his conduct. He engaged in drug dealing on a large scale in relation to the first count on the indictment. He was involved in possession with intent to sell or supply of a quantity of heroin in relation to the second count on the indictment. He breached a suspended term of imprisonment which had been imposed for an earlier drug offence. When all these offences were combined, the sentence imposed by the learned sentencing judge was within the range of sentences that could have been expected. I would therefore dismiss the appeal.