Court of Appeal (WA)|2006-10-20|Before: Wheeler JA

Cohen v The State of Western Australia [2006] WASCA 210 (20 October 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : COHEN -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 210

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Barnes v The State of Western Australia [2004] WASCA 258

Kirby v The Queen [2003] WASCA 164

Macri v The State of Western Australia [2006] WASCA 63

Sinagra-Brisca v The Queen [2004] WASCA 68

Stapleton v The Queen [2004] WASCA 130

Urbano v The State of Western Australia [2006] WASCA 147

R v Hafner [2002] WASCA 211

1 WHEELER JA: On 6 October I heard submissions from Senior Counsel representing the appellant in relation to two proposed grounds of appeal. I refused leave in relation to ground 2. It is clear from the submissions that the argument proposed to be put in support of that ground is directly contrary to the views expressed by this Court in Sinagra-Brisca v The Queen [2004] WASCA 68. It is doomed. There is no need to say anything further about it, save to note that the argument that a person convicted in relation to multiple counts of possession of drugs with intent to sell or supply is entitled to claim that sentences in respect of all of them should run concurrently, since they are all part of the one business in which he engages - that of drug dealing - is so plainly wrong in principle that I would in future refuse leave in relation to any ground raising this proposition, on the papers, and without feeling it necessary to hear further argument.

2 So far as ground 1 is concerned, it was a complaint of manifest excess. I reserved my decision in relation to this ground in order to give a closer examination to the cases particularly referred to by the appellant's counsel during the course of the oral submissions. It seemed to me as a matter of first impression that it was not arguable the sentences imposed were manifestly excessive but, since the written submissions referred to a large number of cases without identifying any of them as being particularly analogous to the present case, it seemed to me desirable to give the matter some further consideration, after particular cases were identified. Having considered those cases, I am of the view that this ground too does not have a reasonable prospect of success.

3 Briefly, the facts are that the appellant had pleaded not guilty in relation to four charges of possession with intent to sell or supply four different parcels of drugs. He was convicted on all of these. The first parcel was one of four clipseal bags containing a total of 1.68 grams of methylamphetamine, of a purity of 19 per cent, which he had in his possession at Morley concealed in the air conditioning duct of his vehicle. The second was again methylamphetamine, one clipseal bag containing 164 grams with a purity of 20 per cent, located by police during a search of the unoccupied apartment next door to the appellant's premises in East Perth. It was located on 17 January 2003. Also on 17 January 2003 was located a further four clipseal bags of methylamphetamine secreted on a shelf in a cupboard in the kitchen of premises owned by the appellant at Coolbinia. That parcel contained 1.64 grams with a purity of 19 per cent and the evidence was that it was possible that this batch and the second batch located at East Perth may have had a common origin. Finally, there was a quantity of cocaine, being 13.5 grams with a purity of 30 per cent, also found at the unoccupied apartment in East Perth.

4 A plea of guilty to simple possession of two of the parcels of drugs had been offered prior to trial but was not accepted. The appellant denied any knowledge of the other two. The sentences imposed upon the appellant were as follows. In relation to the methylamphetamine, 8 years for the largest batch, 2 years concurrent in relation to the 1.64 grams, and 1 year cumulative in relation to the bag found in the vehicle. In addition, there was a sentence of 7 years in respect of the cocaine, to be concurrent with the other sentences. That is, there was a total effective sentence of 9 years' imprisonment, with an order for parole eligibility. For convenience, since the cases to which I will shortly refer are cases which pre-date the transitional provisions, I note that the effective term of 9 years would be equivalent to one of 131/2 years prior to those transitional provisions.

5 The charges against the appellant arose from a lengthy police operation carried out between November 2002 and January 2003. In that period of approximately two months, over 8000 calls between the appellant and others were intercepted, some 75 per cent of which were considered by the investigating officer to be drug related. The telephone intercepts formed a significant part of the evidence placed before the jury. In addition, police located at the appellant's premises rubber gloves, clipseal bags and dextrose (an agent used for cutting methylamphetamine). At the appellant's East Perth apartment, police located a sum of $100,000 in cash in a basket and other money in a briefcase. The appellant claimed that he had won a significant quantity of that gambling on horses. The methylamphetamine found in the appellant's possession was of a purity greater than that of usual street level methylamphetamine, which tends to be up to approximately 10 per cent (but will often be much less than that).

6 The appellant was 53 years of age. He had previous convictions in 1992 for possession of amphetamines with intent to sell or supply and possession of MDMA with intent to sell or supply, for which he received concurrent 2-year terms of imprisonment. He had very significant assets, which his counsel estimated at approximately $1.4 million dollars. He was not an addict. He had run legitimate businesses in the past. He was therefore plainly a person who had, motivated solely by greed, and understanding very well the unlawfulness of his actions, made a commercial decision to engage in the sale of drugs on a significant scale.

7 The only conceivably mitigating circumstance was the forfeiture of assets which included assets unrelated to drug dealing. While it seems clear that a significant proportion of the assets to be confiscated from the appellant would be likely to fall within the description of "ill-gotten gains", there was a house in Coolbinia which the appellant had inherited from his mother and which was, according to a certificate of valuation, valued at a little over $1 million dollars. In that connection, the appellant refers to the decisions of this Court in Macri v The State of Western Australia [2006] WASCA 63 and Urbano v The State of Western Australia [2006] WASCA 147. In Macri, at [15], I said that it was open to the Court to recognise in mitigation situations where real hardship may be caused to an offender as a result of a declaration pursuant to s 32A of the Misuse of Drugs Act 1981 (WA). I gave an example of an hypothetical elderly offender, who had engaged in legitimate work all his life and who, as a result of a single rash transaction, stood to lose the fruits of a lifetime of labour in circumstances where he would be too old to start again. I observed that much would depend upon the circumstances of the individual case. Roberts-Smith and Pullin JJA agreed with those observations. Looking at this case, while his Honour the learned sentencing Judge accepted that "at least the house" had been honestly obtained by the appellant, it had not been obtained as a result of his personal labour, but had been inherited. He was not losing that property as a result of a single transaction, but as a result of a decision to engage in a course of conduct. In short, he had assumed a commercial risk and was suffering the consequences. The mitigatory force of confiscation in those circumstances is plainly negligible.

8 Turning to the cases particularly mentioned by the appellant's counsel for comparison, they were Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107, Stapleton v The Queen [2004] WASCA 130, Kirby v The Queen [2003] WASCA 164 and Barnes v The State of Western Australia [2004] WASCA 258.

9 Tulloh, Stapleton and Kirby would all support the proposition that sentences of up to 15 years would be imposed (prior to the transitional provisions) for possession with intent of large quantities of methylamphetamine (Tulloh at [41], Stapleton at [46]). Tulloh involved two packages of methylamphetamine, of a total of approximately 800 grams and a purity in excess of 50 per cent, and a sentence of 15 years was imposed. Stapleton involved 437 grams at a purity of approximately 58 per cent, and a sentence of 9 years was imposed following a late plea of guilty. Kirby involved a significant quantity (just over 3 kilograms) of methylamphetamine, of a purity of roughly 10 per cent. There was an early plea of guilty, some weight was given to what the appellant said was his limited role in relation to the drug (he asserting that his only role was to allow another to store it on his property) and it was at that time accepted that "significant" weight should be given to the forfeiture of his assets. A sentence of 9 years was held not to be excessive.

10 The appellant's counsel points out that the quantity of drug in question here is less than in those cases and that its purity was less than in Tulloh and Stapleton. However, while weight and quantity of the drug is of relevance, it is not decisive, and one does not arrive at an appropriate sentence merely by some mathematical calculation related to the weight and quantity of the drug: see Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584. What is important in this case is that, so far as the methylamphetamine was concerned, there was more than 167 grams at a purity more than double street purity. That, together with the other factors that I have mentioned, plainly indicates that the appellant was a dealer of some significance. There was, in addition, the quantity of cocaine. A sentence equivalent to 131/2 years prior to the transitional provisions for the totality of that conduct is not, in my view, capable of being considered to be manifestly excessive and a ground that asserts manifest excess has, in my view, no reasonable prospect of success.

11 Finally, I mention the case of Barnes, only because the appellant's counsel did so. That involved the reduction of a sentence of 7 years 4 months to one of 5 years and 10 months for possession with intent to sell or supply two packages of methylamphetamine totalling a little over 370 grams. About one-third was of 74 per cent purity and the remainder approximately 17 per cent. Barnes was accepted to be a dealer at the "upper end" of the spectrum. However, there were very unusual circumstances in that case. Those offences had been committed at the same time as offences for which Barnes had been dealt with some years previously. It is not clear from the decision in that case why the offences had not been dealt with earlier. The total effective sentence in relation to these and the earlier offences, had the 7 years 4 months been allowed to stand, would have been one of 16 years. Further, Barnes had, during the years since the earlier offences, committed himself significantly to rehabilitation, and the Court accepted that his rehabilitation was genuine. That case is therefore not a useful comparator for present purposes.

12 I would therefore refuse leave in relation to ground 1. As noted, I have already refused leave in relation to ground 2.

Cohen v The State of Western Australia [2006] WASCA 210

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Cohen v The State of Western Australia [2006] WASCA 210 (20 October 2006)

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