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[2008] WASCA 163
Court of Appeal (WA)
2008-08-08
Steytler P, Wheeler JA, Miller JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : CIVELLO -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2008] WASCA 163
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Criminal law - Appeal against conviction - Three counts of possession of MDMA with intent to sell or supply - Whether trial judge was unfair in summing up defence case - Whether trial judge failed to give proper direction concerning use that could be made of lies told by the accused
Criminal law - Appeal against sentence - Weight to be given in mitigation of sentence to forfeiture of property - 220 g net pure MDMA - Whether sentence imposed nevertheless properly reflected gravity of the offence
Misuse of Drugs Act 1981 (WA), s 6, s 32A
1 STEYTLER P: On 31 May 2007 the appellant was convicted, after a trial, on three charges of possession of a prohibited drug, methylamphetamine, with intent to sell or supply it to another. On 26 June 2007 he was sentenced to a total term of 10 years' imprisonment with eligibility for parole. He appeals against his conviction and against the sentence imposed upon him. We dismissed the appeal against conviction at the conclusion of argument at the hearing and said that we would give our reasons in due course. Judgment was reserved in respect of the appeal against sentence.
2 The three offences of which the appellant was convicted were committed on 17 August 2005. The appellant was also charged with an offence of manufacturing methylamphetamine on a date or dates unknown between 1 June and 18 August 2005 (count 1). He was acquitted on that charge.
3 The offences were discovered when police executed a search warrant at the home unit in which the appellant lived in Perth. He was driving his car away from the car park of his unit as the police arrived. He was stopped and his car was searched. The police found a cooler bag in his car containing 180.37 g of methylamphetamine packed in what were described as 'disposal bags'. The police then searched his unit. They found a further 287.807 g of methylamphetamine in three different places. Some was found in a freezer, some in a yellow bucket and the rest in an aluminium container next to the stereo system. On the same day, police executed a search warrant at premises in Osborne Park from which the appellant carried on his automotive repair business. There, the police found a further quantity of methylamphetamine. This weighed a total of 68.54 g.
4 Most of the methylamphetamine found in the cooler bag had a very low purity. 156 g of it had a purity of approximately 0.3% (the 156 g was accepted as having consisted of a cutting agent that had been contaminated with a small amount of methylamphetamine). 22.3 g had a purity of approximately 25%. The remaining 2.07 g had an unknown purity.
5 On the other hand, most of the methylamphetamine found in the unit had a very high level of purity. 77.9 g had a purity of approximately 79%, 158 g had a purity of approximately 76% and 45.7 g had a purity of approximately 58%. There was a further 4.54 g with a purity of approximately 20%. The rest of the methylamphetamine had an unknown purity.
6 Of the methylamphetamine found in the appellant's business premises, 10.8 g had a purity of approximately 31.6%, 2.8 g had a purity of approximately 8%, 16.8 g had a purity of approximately 3%, 28.1 g had a purity of approximately 1%, 6.42 g had a purity of approximately 0.4% and 3.62 g had a purity of approximately 0.2%.
7 In his evidence at the trial, the appellant said that he had been living in the unit for only 'a few days' at the time of the police raid. He said that one of the customers of his automotive business was a man named Craig Christian. Christian had asked him to 'look after a vast amount of property' at the business premises. This property had been removed from a nearby business that allegedly owed money to Christian. The appellant and 'a man named Corey' were asked by Christian to look through the stored items, which included a shredder, for money that might be inside them. The two men did so. They noticed that the shredder did not work. They took it apart. In the back of it they found 'a number of clipseal bags that contained ... white powder'. The appellant took the bags of white powder, and some electrical and other goods, to his unit a day or two before 17 August 2005. He said that, amongst the goods that he took to his unit, were 'DVDs and tapes and so on' which, he said, concerned what he took to be 'police corruption'.
8 The appellant suggested, in his evidence, that he had been 'set up'. He said that 'Corey' had been in the home unit when the appellant went to sleep, but that he was gone when the appellant woke up on the following morning. There was some mess in the unit which indicated that 'Corey' had, the previous night, been 'tooling around with the methylamphetamine'. 'Corey' telephoned the appellant about 15 minutes before he left the apartment and said that he had forgotten his cooler bag. He asked the appellant to bring it to him. The appellant found the cooler bag and put it in the back of his car. As soon as the appellant began to drive away from the unit, the police stopped him. He said that they had been waiting for him to drive off so that they could search his car while he was in it. He said that they went straight to the cooler bag.
9 The appellant suggested that there were improprieties during the search of his unit and that the video-taping of the search was interrupted according to the convenience of the searching officers. He said that the police appeared to be far more interested in the DVDs found in the unit than in anything else. He also said that the yellow bucket in which drugs were found had been moved by police from the top of the dryer in the laundry, where it had been, before the drugs were found.
10 The appellant acknowledged that he had lied to the police when first questioned by them. The lies concerned his current address, his whereabouts on the previous night and the purpose of some security tags on his key ring. He said that each of these lies was designed to avoid having the police search his unit, because he knew that there were drugs in the unit.
11 There are two grounds of appeal against conviction in respect of which leave has been given. These are grounds 1 and 5, which read as follows:
12 In his written submissions, which were not supplemented in oral submissions, counsel for the appellant complained of the summing up under five headings. These complaints, when taken together, were said to have revealed that, having outlined the prosecution case to the jury, the trial judge was not even-handed in outlining the defence case as, after mentioning each aspect of it, he reminded the jury of the prosecution case in that respect.
13 The appellant's first complaint is that, after mentioning the appellant's evidence that he had not known that there were drugs in the cooler bag, the trial judge went on to say:
Of course, the other side of the coin, as the state would say is, look, the drugs were in the unit the night before the accused observed that there had been something happening with drugs in the unit whilst he was asleep (ts 636).
Immediately before making that comment, the trial judge had summarised the appellant's evidence, in some detail, concerning the circumstances in which he had come to have possession of the cooler bag and why it was that he did not know what was in it. There was nothing inappropriate, and no element of unfairness, in the trial judge reminding the jury of the State case in this respect. He did not suggest, in any way, that the State's contentions were more acceptable than those advanced on behalf of the appellant.
14 The next complaint relates to the fact that, after mentioning that there was no forensic evidence connecting the appellant with the cooler bag or its contents, the trial judge went on to say that the jury should not confine themselves to looking at the narrow evidence in respect of the cooler bag. He said that they should look at the whole of the evidence. Once again, I can see nothing untoward in this. Moreover, immediately after making that comment, the trial judge went on to say, 'I warn you, that you must have regard to what the accused has told you as to the circumstances of finding the drugs, the situation which he found himself in, not knowing what to do, and such matters'.
15 The appellant complains that, after mentioning the appellant's evidence that he had not known that there were drugs in the yellow bucket, the trial judge went on to tell the jury that the prosecutor suggested that they probably came from an empty aluminium container which was in a box in the storeroom at the appellant's unit. He also told the jury that they might conclude that, even though the appellant was not aware that there were drugs in the yellow bucket, those drugs might have been part of the drugs that had been put into the freezer on the previous evening. He said that, in that event, if the appellant had possession of the drugs in the freezer then he would have had possession of the drugs in the bucket, as they were the same drugs. He repeated this possibility a little later in his summing up.
16 The appellant also complains that, when the trial judge dealt with the inconsistency in the police evidence concerning the whereabouts of the yellow bucket when the drugs were found in it, he 'explained that away by setting out reasons why the officer may have been mistaken'.
17 In fact, the trial judge explained to the jury, at some length, that drugs had been retrieved from the shredder and placed in the freezer. He also explained to the jury that, as the appellant had said in his evidence, the appellant had seen, from the state of the kitchen bench on the following morning, that the drugs had been dealt with in some way. He told the jury that counsel for the appellant had conceded that the appellant had been in possession of the drugs in the freezer. He went on to say (ts 641 - 642):
The total of the methylamphetamine in the aluminium container was some 123.6 grams. The accused acknowledges that he was aware that there were drugs in the aluminium container, there were drugs in the freezer which the police subsequently found. In his evidence he denied any knowledge of the drugs which were found in the yellow bucket ... The prosecution suggest to you that you draw the inference if need be that probably that came from the other empty aluminium container which was in the box down in the storeroom.
Whether or not that is significant, that's a matter for you. The accused denied any knowledge of the methylamphetamine which was found inside the yellow bucket. The video shows clearly in the pan of the laundry area, the yellow bucket is up on top of the dryer. The dryer is on top of the washing machine down below. The sniffer drug dog didn't locate it. There is some inconsistency between the evidence of Detective Morrish and Keady as to where it was when the bag containing the powder fell out of the bucket.
Keady says it was in the hallway outside the laundry. Morrish, I think, or the video records it having been said that it fell out onto the dining room table. There is an inconsistency there, ladies and gentlemen. It's a matter for you whether or not that's significant. So if you accept that the accused did not know that there was the amphetamine in the bucket, you may accept that he was aware of the other amphetamine, which I have referred to and so when it comes to taking verdicts and I will explain to you a little later, there is a distinction to be made between those two parts of the methylamphetamine found.
On the other hand of course, the accused says that when he found methylamphetamine, the bags in the shredder, he put them in the freezer. They were in bigger bags than what was found by police the next morning and there was less amphetamine in the bag in the fridge than what he believed he had put into the fridge the night before. What that suggests is that perhaps whilst the accused was asleep Corey repackaged some of the drugs which were in the fridge. He may have repackaged and put some of the drugs in the cooler bag. It may have come from the fridge and into the cooler bag.
... So you may conclude that what was in the yellow bucket, although the accused wasn't aware that there was anything in the yellow bucket, that that was part of the drugs which were put into the freezer and was then subsequently put into the bucket by someone else other than the accused.
So you may consider that he had possession of that drug as well, if you are accepting of those circumstances. As I say it's a matter for your consideration and deliberations as to how you deal with that.
18 When he came to deal with the positioning of the bucket, the trial judge said (ts 644):
Detective Senior Constable Keady was called to give evidence as to where he found the yellow bucket. He said that he found the bucket on a shelf in the laundry cupboard, that the accused was about one and a half to two metres away.
He pulled the materials out of the bucket and a bag with white powder fell out and that was in the hallway. When you see the video, you will see that the yellow bucket is on top of the drier. To that extent, Officer Keady was wrong in saying that he found the bucket on the shelf in the laundry but you will appreciate that these events happened almost two years ago, he had not seen the video prior to coming to court and in that sense there was an inconsistency between what he said and what is recorded on the tape as to where the bag with the white powder fell out, on the dining room table as it said on the tape, or on the hallway. He was adamant that it was in the hallway in front of that laundry area where the bag fell out.
19 There is nothing unfair, or otherwise untoward, in any of these comments.
20 The appellant makes three complaints concerning that part of the summing up which dealt with drugs and other items found at the appellant's business premises.
21 The first of these is that, after telling the jury that the appellant denied any knowledge of the drugs found at his business premises, the trial judge went on to say that the appellant had used the kitchen (where traces of drugs had been found) almost daily to heat up a pie or a sandwich in the toaster or the oven and that he may have 'warmed up a pie in the oven the day before the raid'. However, in making these comments, the trial judge was doing no more than reciting the evidence which the appellant had given. The appellant had gone on to say, as the trial judge reminded the jury, that notwithstanding that he had used the kitchen, he did not notice anything that he regarded as suspicious or that might have been drug-related.
22 There is nothing unfair or untoward in what was said by the trial judge.
23 The second complaint relates to what was said concerning chemicals, found in the kitchen at the business, which were said to have been used to manufacture methylamphetamine. These comments related only to count 1, in respect of which the appellant was found not guilty. The passage complained of as being unfair reads as follows:
[I]t was nothing unusual for the acetone can to be in there or for there to have been methylated spirits in there. [The appellant] used those in the course of his work. You may accept that, but you have to look at all the evidence and consider the circumstances as to whether or not you can be satisfied that the accused had knowledge of what was found in the kitchen area of his work premises.
I am unable to discern any unfairness in that passage. Moreover, the trial judge went on to say:
You have to be satisfied that the accused was the offender, that it was he, not someone else who was manufacturing the drug at the business premises. You have to be satisfied that he manufactured it.
25 The third complaint relates to evidence that the police found a list of amphetamine prices under the appellant's secretary's desk at his business premises. They also found a clipseal envelope in his secretary's bag which contained a small amount of white powder. Counsel for the appellant complains that the trial judge told the jury that this was an 'irrelevant matter so far as these charges are concerned'. That comment (which is described by counsel for the appellant as unfair) is said to have been reinforced by the trial judge 'removing the issue concerning Jessica [the secretary] possibly being responsible for the drugs found in the work premises from the jury's consideration'.
26 Once again, the trial judge's comments have been taken out of context. In its context, the passage complained of (ts 651) reads as follows:
There was evidence of course, of the police finding other things belonging to other people at the factory unit at the repair shop. In Jessica's bag, there was a clipseal envelope containing a small amount of white powder. There was some cannabis found in Gordon's car; I think a smoking implement and cannabis was found. A bong, something which looked like a bong was found in the office area. They are irrelevant matters so far as these charges are concerned. You can't rationalise, well, because other people had other things at the factory unit, therefore this accused must have been manufacturing drugs or otherwise involved in drugs, you can't rationalise in that way and I'm sure you wouldn't.
In so far as the factory unit was concerned, as we know there are a number of other people working there who had keys to the premises. Nick Grew, the foreman and someone else who could come and go to the premises and who could come and go to the kitchen area. They are matters that you have to take into account in so far as the charges relating to the business premises are concerned.
27 Again, there is nothing unbalanced or unfair in what was said by the trial judge in these respects. He did not remove the possible relevance of the finding of the drugs from the jury's consideration. All that he did was point out to the jury that they could not infer from the fact that other people had drugs, or drug equipment, that the appellant was likely to have been involved with drugs.
28 The next complaint deals with the manner in which the trial judge summed up the evidence of witnesses at the trial. The principal passage in respect of which complaint is made reads as follows (ts 643):
I don't propose to go in any detail to the evidence which you regurgitate [sic], the evidence which you have heard from the witnesses in this trial. Although this trial has taken a little time, I think it's quite straightforward insofar as the evidence which the witnesses have given is concerned.
The complaint is that the trial judge should have spent more time on the evidence that had been given. However, immediately after saying what appears in the quoted passage, the trial judge went on to remind the jury of some of the evidence, before saying (ts 651):
There is a transcript of the evidence which I think runs to some 600-odd pages; for various reasons the transcript doesn't go with you to the jury room. If you do wish to be refreshed on any of the evidence of the witnesses then you might send a note out through the sheriff's officer, we will reconvene and read those parts of the transcript to you if necessary, to be refreshed of any of the evidence.
Once again, there is nothing unfair in what was said by the trial judge, unfairness being the only complaint advanced by ground 1.
29 Next, in this respect, the appellant complains that, after dealing with the evidence of the appellant, the trial judge immediately concentrated on the lies he had told the police. However, it is not suggested, other than as is set out in ground 5 (with which I will shortly deal), that he was in any sense unfair in the way in which he did this. Nor am I able to discern any unfairness in the order in which the trial judge dealt with issues arising out of the appellant's evidence.
30 Finally, under this heading, the trial judge is criticised for having mentioned a defence criticism concerning an inconsistency in the evidence of the police and, at the same time, having reminded the jury of the explanation for it offered by the prosecution. There is nothing amiss with that process and, having read the passages complained of, I can find no unfairness in them.
31 Counsel for the appellant makes three complaints under this heading.
32 The first relates to a misdescription, by the trial judge during his summing up, of what had been said by the then counsel for the appellant. The trial judge told the jury that counsel for the appellant had described the appellant's evidence as 'a bizarre and unreal tale' when, in fact, the appellant's counsel had said that it was a 'bizarre and weird tale'. There is no material distinction between 'unreal' and 'weird' in this context or, at least, none that is adverse to the appellant. Moreover, the next paragraph of the transcript reveals that the trial judge reiterated the defence description of the evidence, this time using the words 'bizarre and weird tale'. In any event, when asked to re-direct in this respect, the trial judge did so as follows (ts 677):
In the context of the accused's evidence, and this is really just to correct the record if what I said was incorrect, I was referring to the accused's evidence and as his counsel described it yesterday saying that it was not an invention, it is a bizarre and weird tale. Counsel suggest that I may have used the word 'unreal'. If I did I retract it. The word that I had noted was 'unusual' and certainly it is an unusual set of circumstances and I think you would appreciate that as well.
33 The second complaint is that the trial judge should have separately set out the cases for the prosecution and defence and 'not undermine every aspect of the defence case with the countervailing position of the prosecution, and he didn't do the same regarding the state case'. This complaint adds nothing to what has already been said, no other example having been offered. I have already concluded that the trial judge's summing up was fair.
34 The third complaint under this heading is that the trial judge's 'unfavourable approach to the defence case' is further typified by the fact that he refused to allow defence counsel to develop an argument on a matter of law in the absence of the jury. This complaint was not expanded upon either in writing or orally, other than by referring to the relevant page of transcript where this is said to have happened. Examination of the transcript reveals that the trial counsel for the appellant objected to a question that had been put to a witness in the course of re-examination on a peripheral matter concerning usual sources of information provided to police officers. Having identified the nature of the objection, the trial judge ruled upon it. After he had done so, the then counsel for the appellant said that there was a matter of law that he wished to mention in connection with the ruling. The trial judge, properly, said that, having made his ruling (on what was anyway a matter of little or no significance), he did not propose to engage in further discussion with respect to it.
35 It follows that none of the complaints made on behalf of the appellant has any substance. The respective cases for the prosecution and the defence were accurately and fairly put to the jury, so as to give them the necessary understanding of the evidence to determine the case according to the evidence: Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 [9]. The trial judge also told the jury that what he had to say about the facts was not binding upon them and that it was 'simply by way of comment designed to remind [them] of some of the evidence which [had] been given and to suggest an approach which [they] might find helpful'. He went on to say (ts 625 - 626):
I do not under any circumstances seek to persuade you to one view or the other. That's not my role and it would not be appropriate or proper for me to do that. So I can't emphasise strongly enough that it's for you as a jury to come to your own conclusions as to the truth or otherwise of any alleged fact and as to the facts generally in this case. That's your exclusive responsibility in accordance with the oath which you took at the beginning of this trial.
37 I have said that, in the course of his evidence, the appellant admitted having lied to the police in three respects. Counsel for the appellant complains that the trial judge did not, when directing the jury concerning these lies, point out to them that the lies had no bearing on the issue of whether the appellant had any intention to sell or supply the drugs. He contends that the trial judge should have told the jury that the lies related only to the appellant's fear of being found in possession of the drugs. Counsel for the appellant also complains that the trial judge did not tell the jury that 'sometimes innocent people tell lies out of fear or to bolster a genuine defence'. Finally, he contends that, the appellant having admitted that he was aware of some, but not all, of the drugs found in his unit, the trial judge should have told the jury that the lies could only relate to the drugs of which he was aware.
38 Prior to summing up to the jury, the trial judge asked counsel whether he should give an Edwards direction, being, of course, a direction of the kind discussed in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193. Both counsel said that he should do so. He consequently gave the following direction (ts 646 - 647):
One aspect which was apparent early in [the appellant's] evidence was the telling of what he acknowledged were lies to the police at the time when the police were searching his motor vehicle. Ordinarily the telling of a lie will merely affect the credit of the witness or the credibility of the witness's evidence. In certain circumstances a lie told by an accused person may go further and amount to an implied admission of guilt.
The state has submitted to you that the accused lied to police in the carpark area before they went up to unit 601 [the appellant's unit]. The subject of those lies were firstly that he gave his current address as the Greenwood address, the matrimonial home which he had left although he had been residing there until a couple of weeks before; secondly, that the security tag for the unit he said was for a roller door at home at Greenwood; and thirdly that he lied as to where he had stayed the night before.
The accused has admitted that what he told police in respect to those matters were lies. They were deliberate lies. Clearly they related to relevant matters, namely the fact that he was aware that there was methylamphetamine upstairs in the unit and clearly he wished to deflect police away from going up to the unit and there conducting a further search.
In that sense the lie is really only explicable on the basis that if he had told the truth then that would have implicated him in the possession of the methylamphetamine in unit 601; that is, his motive for the lie was a realisation of guilt and a fear of the truth. In a sense the fact that he told lies to police is neither here nor there so far as the charge of possession of the methylamphetamine in the unit is concerned because he has admitted that he did have knowledge of the methylamphetamine there and concedes that he had control or dominion over it.
By his counsel he concedes that at a minimum he was in possession of the methylamphetamine or at least some of it found in the unit. That is simple possession. He denies of course that he had it with the intention of selling or supplying it to another. So therefore you can accept that the lies told do support the state's case so far as possession of some, if not all, of the amphetamine found in unit 601. Furthermore, the telling of the lies might be something which you take into account in assessing his credibility generally. That of course is a matter for your consideration. It may be of some weight in your deliberation or you may consider that overall it adds nothing insofar as the accused's credibility generally is concerned.
39 It seems to me, first, that it must have been obvious to the jury that the lies went to the element of possession, and not to that of intention to sell or supply. The trial judge told them that the purpose of the lies was 'to deflect police away from going up to the unit and there conducting a further search'. He immediately explained that, if the appellant had told the truth, he would have been implicated in the possession of the methylamphetamine in the unit. As will be apparent, the trial judge also went on to say that, because possession was not denied in respect of at least some of the methylamphetamine found in his unit, the fact that he told lies was 'neither here nor there' so far as the charge of possession of the methylamphetamine in the unit was concerned.
40 The trial judge also made it clear to the jury that the lies supported the State's case so far as possession of 'some, if not all, of the amphetamine found' in the unit. The reference to 'some' obviously related to the appellant's evidence that he was unaware of the drugs found in the yellow bucket. More fundamentally, in this respect, it was not an element of the charge against the appellant, concerning the drugs found in his unit, that he had had possession of any particular quantity of drugs. It was consequently irrelevant to his conviction whether or not his 'consciousness of guilt' extended to the drugs found in the yellow bucket as well as to the drugs found elsewhere in the unit.
41 As to the contention that the trial judge did not tell the jury that innocent people sometimes tell lies out of fear or to bolster a genuine defence, there was no need for any such direction in this case. There was no dispute concerning the reason why the appellant had told the lies.
42 I should add that the trial counsel for the appellant, an experienced senior counsel, had only one difficulty with the trial judge's summing up in respect of the lies told by the appellant. This related to a misunderstanding concerning what the trial judge had said. Once that was cleared up, he made no complaint.
44 It was for these reasons that I joined in the decision to dismiss the appeal against conviction.
45 I have said that the appellant was sentenced to a total term of 10 years' imprisonment. This was made up of sentences of 4 years' imprisonment in respect of the drugs found in the appellant's car, 8 years' imprisonment in respect of the drugs found in his unit and 2 years' imprisonment in respect of the drugs found at his business premises, with the first term to be served concurrently with the second, and the third term to be served cumulatively.
46 There are only two (alternative) grounds of appeal against sentence. They read as follows:
47 Events took an unusual course during the sentencing of the appellant. After the appellant's convictions had been entered, senior counsel for the appellant suggested to the trial judge that a pre-sentence report should be obtained. He said that submissions in respect of penalty might be made by his instructing solicitor in due course. The trial judge ordered a report and otherwise adjourned the proceedings until 26 June 2007. When the hearing resumed on that day, the trial judge immediately commenced his sentencing remarks, notwithstanding that he had heard no submissions in mitigation from counsel for the appellant. After he had made some progress, he was interrupted by counsel for the appellant. She said that she wished to make sentencing submissions. She was invited to do so.
48 In the course of her ensuing submissions, counsel for the appellant said that there had been no evidence at the trial to suggest that the appellant had a history of involvement in the drug trade. She also said that there was no evidence that the appellant had 'large amounts of unexplained wealth', although she accepted that a certain amount of cash had been located in his unit. She asserted that the appellant's evidence had been that he had built up his business over some 21 years. She also asserted that his assets appeared to reflect the proceeds of the business rather than any ongoing involvement in the drug trade. She went on to submit that, if the appellant was declared to be a drug trafficker pursuant to s 32A of the Misuse of Drugs Act 1981 (WA), his assets would be forfeited, giving rise to a significant penalty. She said that the 'matrimonial home' was valued at about $550,000 and that the appellant would consequently lose half of that sum. Also, she said that the business owned by the appellant and his wife was valued at $1.6 million, with the consequence that he was liable to lose $800,000 on that account. She went on to submit that the court should 'take into account the forfeiture of these items by way of mitigation'.
49 The prosecutor made no answering submissions in this respect.
50 The trial judge then proceeded with his sentencing remarks. When he came to deal with the forfeiture of the appellant's assets, he said (ts 713 - 714):
The pre-sentence report indicates that your assets are the subject of a freezing notice under the Criminal Property Confiscation Act of 2000. The consequence of you being declared a drug trafficker and the confiscation legislation is that all property owned or effectively controlled by you is or will be confiscated.
Save for what has been said to me from the bar table, no material has been put before me which might lead me to positively form the conclusion that all of the property to be lost or some very substantial portion of it has been lawfully acquired. In those circumstances, there is no mitigation on sentence to be accorded by reason of your property being confiscated. As to that again, see the reasons of Wheeler J in McKeagg v State of Western Australia.
51 The reference to 'McKeagg' was presumably intended to be one to Macri v The State of Western Australia [2006] WASCA 63. In that case, Wheeler JA (with whom Roberts-Smith & Pullin JJA agreed) said, after referring to the second reading speech in respect of the Criminal Property Confiscation Bill 2000, that two concepts of importance were reflected in that speech [13]. The first was that the justification for confiscation was not primarily that of deterrence, although there was a deterrent element, and that it was thought to be unjust that individuals should be permitted to retain 'ill-gotten gains'. She went on to say [14] - [17]:
The second is that it appears to be assumed that there will in many cases be persons involved in the drug trade, and particularly higher in the 'hierarchy' of that trade, who build up substantial wealth, in circumstances where it is difficult to prove that that wealth has been dishonestly acquired. Some modification of the burden of proof is therefore thought to be required. I would respectfully observe that there will be many cases in which that assumption is no doubt correct. It would be naive to assume that merely because a person has not previously been convicted of dealing in drugs, that the person has never previously done so. On the other hand, it will of course on occasion be the case that an offender does engage in only one criminal transaction, sometimes after a lifetime of otherwise honest labour. The offender's drug dependence, gambling, or other emotional pressures often provide an explanation for such a course, where that occurs.
The understanding I would gain from the Second Reading Speech, then, is largely consistent with the view that I expressed in Sinagra-Brisca. It seems to me that there is a legislative assumption that, prima facie, a person who is declared a drug trafficker and who forfeits property as a result will be losing property which is in whole or in part derived from criminal activity. The offender was never entitled to the property in the first place, since his or her means of obtaining it were criminal, and therefore there is no 'loss' which is required to be taken into account by way of mitigation. However, because the legislative intent is to attack 'ill-gotten gains', it remains open to the Court to recognise in mitigation those situations where real hardship - not merely the loss of presumptively unlawfully acquired property - may be caused to an offender as a result of a declaration pursuant to s 32A. An example given to us in argument was of a hypothetical elderly offender, who had engaged in legitimate work all his life, and who, as a result of what was conceded to be a single, rash transaction, stood to lose the fruits of a lifetime of labour in circumstances where he would be considered too old to start again. As I said in Sinagra-Brisca, much will depend upon the circumstances of the individual case.
The only modification which I would now make to the observations which I made in Sinagra-Brisca would be that, taking into account the observations of McKechnie J, and considering the legislative intent as revealed in the Second Reading Speech, I would alter somewhat the view which I expressed in [26] of those reasons. Rather than suggesting merely that some 'credible material' suggesting a source of property other than drug dealing should be placed before a sentencing Judge, it seems to me that, before a loss as a result of a s 32A declaration can be taken into account by way of mitigation, there must be material which leads a sentencing Judge positively to form the conclusion that all of the property to be lost, or some very substantial portion of it, has been lawfully acquired. In some clear cases, of course, there may be a concession by the State to that effect. That is not to suggest that, even in such cases, significant weight will be placed upon such a loss by way of mitigation. Much will depend upon the nature and scale of the loss and its impact on the offender, having regard to all of the offender's other personal circumstances.
Applying those observations to the present case, there was simply nothing placed before his Honour to suggest that the house which was sold had been acquired solely or largely as a result of the lawful endeavours of the appellant. It was true that he had been apparently lawfully engaged as a panel beater, but that was not sufficient to lead to a conclusion that the acquisition of the house was solely or largely as a result of that occupation. This circumstance should therefore have been given no weight by way of mitigation.
52 Subsequently, in Urbano v The State of Western Australia [2006] WASCA 147, the court (Martin CJ, McLure & Pullin JJA) refused an application to lead evidence, on appeal, that particular property had been lawfully acquired when that evidence had been available at the time of sentencing but had not then been adduced. Pullin JA (with whom Martin CJ agreed) said [41] that it was known at the time of sentencing in that case, by reason of decisions of this court, that, if a convicted person wishes to put forward as a point of mitigation that the declaration will mean that he or she will have property confiscated which had been lawfully acquired, he or she was entitled to do so and that no such attempt had been made by the appellant.
53 Finally, in this respect, in Cohen v The State of Western Australia [No 2] [2007] WASCA 279, McLure JA said that it should be born in mind, when considering issues of mitigation arising out of forfeiture of assets owned by those who deal in drugs, that 'those who profit from and live by their ill-gotten gains ordinarily do so to the preservation or enhancement of their legitimately sourced assets' [55].
54 Those cases might be thought to stand in the way of each of the alternative grounds of appeal raised on behalf of the appellant. As to the first, there was no adequate evidence to support the assertion by the appellant's counsel that the appellant's property had been lawfully obtained. As to the second, there was no obligation on the sentencing judge to alert defence counsel to the fact that evidence was required if the confiscation was to be given any weight as a mitigatory factor. Although it is true, as counsel for the appellant pointed out, that the State did not take issue with the assertions made on behalf of the appellant by his counsel in the course of her plea in mitigation, it is equally true that the prosecutor (who had seemingly had no warning of what would be said in mitigation) said nothing to indicate that he accepted the truth of those assertions.
55 The evidence in this case plainly revealed that the appellant dealt in drugs. It was obvious, from the verdicts of the jury, that they rejected the appellant's version of how he came to be in possession of the drugs found. The substantial quantity of methylamphetamine found in the appellant's possession (381 g, if no account is taken of the 156 g with a purity of approximately 0.3%) indicates that he was heavily involved in dealing in drugs. That conclusion is reinforced by the very high purities of some of the drugs found (and it is significant that the drugs were in a number of separate parcels). On my calculations, the quantity of pure methylamphetamine found in the appellant's possession was around 220 g. While it would be in error to focus exclusively on the quantity of the drug involved (Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584), possession of so large a quantity, with intent to sell or supply, demonstrates a knowing involvement in large-scale dealing for commercial gain. The existence of a substantial body of cutting powder likewise suggests a heavy involvement in dealing. There is nothing in the evidence adduced that should have led the judge, consistently with the verdict of the jury, to believe that this had been an isolated incident.
56 However, even if some allowance should have been made for the forfeiture of the appellant's assets, I do not consider that any different sentence should have been imposed: s 31(4)(a) of the Criminal Appeals Act 2004 (WA). There was little to be said in mitigation. The appellant was aged 40 years. He was only an occasional user of drugs. There was no plea of guilty. He had a criminal record, although this was relatively minor and the appellant had not previously been imprisoned. There is no challenge to the sentencing judge's finding that the appellant was one step removed, at most, from the manufacturing process and consequently very high in the drug hierarchy and that he played an important role in the distribution chain. In those circumstances, the individual sentences imposed were well within discretionary limits. Similarly, although the total term of imprisonment of 10 years imposed by the trial judge is relatively severe, it seems to me to have been appropriately so, in the circumstances of this case, even if some limited allowance is made in respect of the forfeiture of the appellant's property.
57 In coming to this conclusion, I rely upon the review of cases undertaken in Cohen [33] - [49]. That review provides examples of a number of cases that suggest that the total sentence imposed in this case was appropriate.
58 In Cameron v The Queen [2000] WASCA 286 the offender dealt in a quantity of about 38.5 g of pure methylamphetamine (less than 20% of the quantity involved in the present case). His involvement with the drug was only as a courier. He had prior convictions, but these were unrelated to drug offences. He pleaded guilty, unlike the appellant in the present case. He was ultimately sentenced to a term of 8 years' imprisonment (equivalent to 5 years and 4 months' imprisonment after allowing for the effect of the transitional provisions).
59 In Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522, the offender was convicted of possession of 422.5 g of methylamphetamine, with a purity of 59.3%, with intent to sell or supply. His involvement was only as a courier (although the court found that he knew that he must have been carrying a large quantity of drugs). He had no relevant prior convictions. He had pleaded guilty. He was sentenced to a term of 10 years' imprisonment (6 years and 8 months' imprisonment
after allowing for the transitional provisions). His application for leave to appeal was refused.
60 In Stapleton v The Queen [2004] WASCA 130, the offender was convicted of supplying 437 g of methylamphetamine with a purity of 58%. He was sentenced to a term of 9 years' imprisonment (6 years after the operation of the transitional provisions). However, he had pleaded guilty and his part in the enterprise was found to have been unsophisticated. Also, he was to have received only a small reward in respect of his role. He had no relevant previous convictions.
61 In Dao v The State of Western Australia [2007] WASCA 237 the offender was convicted of one count of possession of heroin (56.03 g with a purity of 59%) with intent to sell or supply and one count of possession of methylamphetamine (119.2 g with a purity of 49%) with intent to sell or supply. Her offending consequently involved less than half the quantity of pure drugs involved in the present case. She pleaded guilty to both offences. She had transported the drugs (with a street value of $390,000) from Sydney to Perth. Her appeal against a total sentence of 6 years' imprisonment (after the operation of the transitional provisions) was dismissed.
62 While there are other cases in which either more, or less, severe sentences have been imposed for similar offences, the cases to which I have referred are sufficient to establish that the total sentence imposed in this case was appropriate, taking into account all of the circumstances to which I have referred.
(1992) 173 CLR 555
(1993) 178 CLR 193
(2001) 207 CLR 584