Miles v The Queen (1997) 17 WAR 518

R v Bellissimo (1996) 84 A Crim R 465

R v Darwell (1997) 94 A Crim R 35

R v Heferen [1999] WASCA 81; (1999) 106 A Crim R 89

Verschuren v The Queen (1996) 17 WAR 467

1 PIDGEON J: This is an application for leave to appeal against a sentence of 10 years imprisonment imposed by his Honour Judge Blaxell on the applicant following his plea of guilty to an indictment alleging that he had in his possession a quantity of methylamphetamine with intent to sell or supply it to another.

2 The facts as found by the sentencing Judge were that on 22 April 1999 the applicant alighted from an aircraft in Perth that had come from the Eastern States. He was spoken to by police and searched and there was found to be in his possession a plastic package which contained 5268 tablets. When analysed, they were found to be methylamphetamine, the tablets being 3 to 4 per cent pure, the total weight being 1136 kilograms. As his Honour said, it was a very substantial quantity.

3 His Honour said that the applicant participated in a record of interview but made no admissions. He referred to personal matters relating to the applicant, including the fact of a previous record of dishonesty, such as receiving, malicious wounding for which he had received 2 years imprisonment in 1978. He referred to other personal circumstances.

4 I refer to the applicant's record because no mitigation can be seen in respect of that and the offence would appear to be so serious that personal circumstances would play little part. His Honour said, and I think I consider this is important:

"Apart from the plea of guilty that you have entered, I cannot find any mitigating circumstances in your background. I note in particular you didn't cooperate with the police in terms of disclosing where the drugs had come from. It is obvious from the surrounding circumstances that you were effectively a courier for importing the methylamphetamine into Western Australia and the quantity brought into the state was a substantial number..."

"In my view, the only fair inference from the surrounding circumstances is that you were involved in committing the offence in order to gain money. I do not accept the plea that has been put on your behalf that in essence you were doing a favour for a friend."

6 Then his Honour emphasised the serious nature of these offences:

"Offences such as yours cause immense damage to our community. There are so many young offenders who appear in this court who have committed various crimes because of the problems they have with the drugs and with methylamphetamine in particular.

Given that in this case there were more than 5000 tablets, I think it's a fair inference that if you had been successful in bringing about their distribution undoubtedly those tablets and drugs would have contributed to innumerable burglaries, stealings, and other offences. The offence calls for a deterrent penalty."

7 His Honour then imposed the term of 10 years imprisonment but said:

"In view of the fact that you've pleaded guilty, I'm going to reduce that to 9 years imprisonment."

8 He backdated it and declared the applicant eligible for parole.

9 There is one and one only ground of appeal and that is understandable. The ground of appeal is that the learned sentencing Judge gave insufficient credit for the early plea of guilty. The offence was extremely serious and I would see the term of 10 years imprisonment as being not a day too long. I consider the applicant rightly abandoned a ground of appeal suggesting that this sentence was outside the range commonly imposed for sentences of this type.

10 The important question is whether a sufficient credit was given for a plea of guilty. The history of the plea is that initially there were no admissions when first interviewed but there was an abundance of evidence through what was found.

11 The applicant appeared before the Court of Petty Sessions. The date is not legible here but I would assume it must have been shortly after his arrest on 22 April 1999. He was charged there on complaint that he had in his possession a prohibited drug, namely ecstasy, with intent to sell or supply. I am told from the bar table that the actual complaint referred to ecstasy whereas he had methylamphetamine.

12 He appeared on 4 June. On 2 July he elected a preliminary hearing. On 30 July there was a further remand to 31 August. On 31 August there was a remand to 30 September. On 30 September there was a further remand to 29 October and on 29 October there was a remand to a date that I understand was 19 November for the preliminary hearing.

13 On 10 November the solicitors for the applicant wrote to the prosecution confirming that the applicant had been listed for a preliminary hearing in relation to a charge of possession of ecstasy. The letter confirmed, "Mr Cameron wishes to enter a plea of guilty to the charge of possession of a prohibited drug with intent to sell or supply." They then asked that it be listed on 16 November in the video court because the applicant was then in custody. It then requested that the charge be amended to methylamphetamine and that he would then plead guilty. That happened. The charge was amended to methylamphetamine and he did plead guilty.

14 It was submitted to this Court that it was not possible for him to enter that plea till the charge had been amended. For my part I do not consider that that is the situation. The charge when first brought had the element of being a prohibited drug and if it contained the wrong drug, it would still have been open to the applicant at a much earlier stage to indicate that he did have a prohibited drug but it was methylamphetamine and not ecstasy. It is simply that the particulars were wrong.

15 The particulars refer to a drug of equal seriousness so I see no difficulty to his pleading guilty earlier and it did not save the administration of justice to have the number of remands that there were and to have time set aside for the preliminary hearing. So at that stage in the Court of Petty Sessions there was not a saving to the administration of justice.

16 There was an undoubted saving to the administration of justice as far as the District Court was concerned because one of the objects of the fast-track is to indicate at the earliest stage to a Court what is to be a plea and it is not going to be a trial. That is a significant saving for which credit must be given. So we have the situation where there was no saving in the Magistrates Court, there was an important saving of time and administration in the District Court.

17 The next matter that must be weighed up in deciding the credit is whether it is a plea of guilty that indicates remorse. A plea of guilty that indicates remorse or the fact that there is remorse is a further factor that will increase the credit. For my part I can see no indication of remorse in these circumstances. It may be difficult to be remorseful when a considered decision is made to bring this amount of drugs into the State. When there is a planned offence of that type it is difficult to speak of remorse, but there was no other cooperation present such as assisting to identify the source and planned course of the drugs.

18 Originally there was no admission. Subsequently there were admissions and an admission that he had the necessary knowledge but there is no factor here where remorse could be a factor to increase the amount of credit being given.

19 His Honour, with those factors before him, made the reduction of 1 year and the question is - and I see it as a difficult question - whether that is sufficient. In the circumstances of this case I do not consider precedents are of any assistance. It is a matter of judgment that must be made on the facts but it is important that the credit is a meaningful and recognised credit and not just a nominal credit. Percentages are not always easy, particularly when the term is a higher one, because percentages then reach a higher figure when they might not necessarily have much meaning to them. It was a reduction of 10 per cent.

20 In the end when one sees the factors before his Honour, the plea being the only mitigating circumstance, the absence of remorse, the fact that there was no earlier cooperation in the Court of Petty Sessions but an important cooperation in the District Court, the question is whether his Honour was in error in limiting the credit to 1 year. It is, I feel, a credit of some significance.

21 Weighing up all the factors and the fact that his Honour was the sentencing judge, I am not persuaded that his Honour was wrong in not making a greater credit than he did, having regard to the number of negative factors and I do not want to detract from the positive factor, but having regard to the other negative factors, I am not persuaded that his Honour is wrong.

22 For those reasons I feel leave should be granted to argue this important question of what should be the credit, but I would dismiss the appeal.