Court of Appeal (WA)|2007-12-19|Before: Wheeler JA, Steytler P, Lure JA, Buss JA

COHEN -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2007] WASCA 279 (19 December 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : COHEN -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2007] WASCA 279

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

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

Criminal law - Appeal against sentence - Drug offences - Possession of 167.32 g methylamphetamine (19% - 20% purity) and 13.5 g cocaine (30% purity) with intent to sell or supply - Drug trafficker declaration - Confiscation of property - Mitigatory force where particular property not acquired through drug dealing - Sentence manifestly excessive

Sentence - Mitigating factors - Admission of evidence on appeal - Prison conditions - Prospect of deportation - Potential effect on eligibility for minimum security rating and reentry (work) release - Possible denial of privileges an insufficient basis for interfering with sentence

1 STEYTLER P: The appellant was convicted after a trial on four counts of possession of prohibited drugs with intent to sell or supply. Counts 1, 2 and 4 involved quantities of methylamphetamine (1.68 g, with a purity of 19%, in the case of count 1; 164 g, with a purity of 20%, in the case of count 2; and 1.64 g, with a purity of 19%, in the case of count 4). Count 3 involved 13.5 g of cocaine with a purity of 30%. The appellant was sentenced to terms of 1 year's imprisonment on count 1, 8 years' imprisonment on count 2, 7 years' imprisonment on count 3 and 2 years' imprisonment on count 4. The sentences on counts 2, 3 and 4 were ordered to be served concurrently, but that imposed in respect of count 1 was ordered to be served cumulatively upon the sentence imposed in respect of count 2. This gave rise to a total term of 9 years' imprisonment. The appellant was made eligible for parole.

2 The appellant applied for leave to appeal on two grounds. The first was that the sentences imposed were manifestly excessive. This was said to be because they were outside the range of sentences open to the sentencing judge in the proper exercise of his sentencing discretion, having regard to the principles and sentences outlined in Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107. The second ground was that the sentencing judge erred in ordering the sentence imposed in respect of count 1 to be served cumulatively with that imposed in respect of count 2, thereby giving rise to a total effective sentence which breached the totality principle.

3 Leave to appeal was refused by Wheeler JA on both grounds. The appellant has applied for review of her decision refusing leave in respect of ground 1. He has also applied for leave to add a ground of appeal as follows:

That by reason of fresh and/or new evidence that has become available since the date of imposition of sentence and the date of refusal of leave to appeal, the appellant's sentences of imprisonment are manifestly excessive and the total effective sentence breaches the totality principle of sentencing.

Particulars

That upon the conclusion of his sentence, the appellant is likely to be deported to a country with which he has no ties (Great Britain) thereby inflicting upon him a substantial additional punishment not previously contemplated (with every likelihood that he will be refused re-entry into Australia) - see Minister for Immigration and Multicultural Affairs v Nystrom [2006] HCA 50; (2006) 230 ALR 370.

4 The appellant, a 53-year-old man, came to the attention of the police in about November 2002. Between November 2002 and January 2003 over 8,000 telephone calls between the appellant and others were intercepted. Around 75% of these were considered by the investigating officer to be drug-related. On 2 December 2002 the vehicle driven by the appellant was searched by police. They found the drugs the subject of count 1. These drugs were concealed in the airconditioning duct of the vehicle. In the course of a subsequent search of the appellant's East Perth apartment on 16 January 2003, the police found rubber gloves, clipseal bags and dextrose (an agent used for cutting methylamphetamine). In addition, they located a sum of $100,000 in cash in a basket. Other money was found in a brief case. The appellant claimed to have won $60,000 gambling on horses.

5 On 17 January 2003 the police searched an unoccupied apartment that was next door to the appellant's apartment. They found the methylamphetamine the subject of count 2. They also found the cocaine the subject of count 3. On the same day police searched a house owned by the appellant in Coolbinia. There they found the methylamphetamine the subject of count 4.

6 When he came to sentence the appellant, the sentencing judge took into account by way of mitigation the fact that, because the appellant had been declared to be a drug trafficker pursuant to s 32A(b)(i) of the Misuse of Drugs Act 1981 (WA), his assets (worth over $1.4 million) were liable to be forfeited to the State: s 8 of the Criminal Property Confiscation Act 2000 (WA). One of the assets to be forfeited was the appellant's house in Coolbinia. He had inherited this from his mother. The house was valued at a little over $1 million. The sentencing judge said that he took into account the fact that the house had not been acquired through drug-related funds and also that, after serving his term of imprisonment, the appellant would return to the community with no assets. He also took into account the fact that the appellant had co-operated in the trial process by making admissions in respect of a number of matters and thereby shortening the length of the trial.

7 Wheeler JA, in the course of refusing the application for leave to appeal, concluded that ground 1 had no reasonable prospect of succeeding. Having recited the facts giving rise to the four charges, she mentioned that the appellant had offered a plea of guilty to simple possession of two of the parcels of drugs (those the subject of counts 1 and 4) but that this offer had not been accepted by the State. She also mentioned that the appellant had denied any knowledge of the other two parcels. In the course of mentioning the factors that were personal to the appellant, she noted that 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 had received concurrent 2-year terms of imprisonment. She also mentioned that he had very significant assets (I have said that these were worth approximately $1.4 million), that he was not an addict, that he had run legitimate businesses in the past and that he was consequently a person who was motivated solely by greed.

8 Wheeler JA went on to say that the only conceivably mitigating circumstance was the forfeiture of the appellant's assets, in particular the house in Coolbinia that had not been acquired as a result of drug dealing. However, she said in that respect that, because the house had been obtained through inheritance rather than personal labour, and because it was lost as a result of a decision to engage in a course of conduct rather than a single transaction, the loss of the house was merely a consequence of the appellant's assumption of a commercial risk. She said that, in that circumstance, the mitigatory force of the confiscation was plainly negligible.

9 After examining some of the comparable cases, Wheeler JA concluded that the sentences imposed upon the appellant could not be regarded as manifestly excessive and that an argument to that effect had no reasonable prospect of success.

Grounds relied upon in the review proceedings

10 In the review proceedings the appellant contends that leave should have been granted in respect of ground 1. Wheeler JA is said to have made two errors. Counsel for the appellant argues, first, that she should have found that the appellant had a reasonable prospect of establishing that the sentences imposed upon him were manifestly excessive having regard for sentences imposed in respect of comparable crimes and taking into account the mitigatory circumstances. In oral submissions counsel for the appellant limited this challenge to the sentences imposed in respect of counts 2 and 3 and to the total sentence of 9 years' imprisonment, which was said to have infringed the totality principle. The second error contended for on behalf of the appellant is that Wheeler JA was wrong to have concluded that the mitigatory force of the confiscation of the appellant's assets was 'plainly negligible'.

11 The test for a grant of leave is provided by s 27(2) of the Criminal Appeals Act 2004 (WA). That section provides that the Court of Appeal must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding (see, in this respect, Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473). The review of a refusal of leave is by way of rehearing, but error on the part of the single judge of appeal must be shown: Keating v The State of Western Australia [2007] WASCA 98. However, as was pointed out in Keating, while there may be some limited scope for reasonable minds to differ on the issue of whether an individual ground does or does not have a reasonable prospect of succeeding, the test is objective [23]. Consequently if, on reviewing the decision of the single judge of appeal, the Court of Appeal assesses the ground differently from the single judge and finds that there is a reasonable prospect of success, it seems inevitable that, even if no express error is found, the court will find implied error.

12 In my respectful opinion, Wheeler JA erred in her conclusion that the mitigatory force of the confiscation of the appellant's house in Coolbinia was negligible. This court has repeatedly acknowledged that the compulsory loss of assets, where those assets were not acquired through the proceeds of the crimes that led to their confiscation, is a significant punishment: see Kirby v The Queen [2003] WASCA 164 [166] - [177] (Roberts-Smith J, Wheeler J agreeing); Mada v The Queen [2003] WASCA 1; (2003) 137 A Crim R 460 [16] - [19] (Murray J, Templeman J & Rolfe AJ agreeing); Sinagra-Brisca v The Queen [2004] WASCA 68 [19] - [26] (Wheeler J, Templeman & McLure JJ agreeing). More recently, in Macri v The State of Western Australia [2006] WASCA 63 [15] - [16], Wheeler JA (Roberts-Smith & Pullin JJA agreeing), after considering the second reading speech of the Criminal Property Confiscation Bill 2000 (WA), said:

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.

... That is not to suggest that, even [where the source of confiscated property is other than drug dealing], 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.

13 In Urbano v The State of Western Australia [2006] WASCA 147 the court accepted that confiscation might be given weight as a mitigating factor where credible material was placed before the sentencing judge documenting the legitimate source of the property to be confiscated: at [5] (McLure JA) and [41], [46], [55] (Pullin JA, Martin CJ agreeing).

14 In my respectful opinion, the loss of lawfully acquired property valued at over $1 million is a real punishment. That seems to me to be so regardless of whether that asset was acquired through the sweat of the appellant's brow or through inheritance. Either way, he has lost a valuable asset that was acquired by lawful means. In circumstances in which the appellant (who, as I have said, was 53 years old when sentenced) will have no assets at all on his release from imprisonment, that punishment seems to me to be especially relevant in the sentencing process. In my opinion, it should have been given significant weight in mitigation.

15 In the light of this conclusion and taking into account that, as I shall explain below, the sentences imposed in respect of counts 2 and 3 are severe when compared with sentences normally imposed in similar cases, it seems to me that ground 1 should have been found to have had a reasonable prospect of succeeding. Leave to appeal should consequently have been granted in respect of it. It was common cause between the parties that, if we should come to this conclusion, we should go on to deal with the appeal itself.

The application to add an additional ground of appeal

16 I should, first, deal with the application to amend the grounds of appeal by adding a new ground. Because the conclusion at which I have arrived under the previous heading has the effect of restoring the appeal, there is no obstacle to that application of the kind discussed in Barry v The State of Western Australia [2007] WASCA 12.

17 The appellant has sought to adduce evidence in support of the proposed amendment in the form of an affidavit by his solicitor, Mr Andrew Williams. The Criminal Appeals Act 2004 (WA) enables evidence to be led in an appeal. Section 40(1) provides that the court may do any of the things mentioned in that subsection for the purposes of dealing with an appeal. Paragraphs (a) to (d) deal with the admission of specific categories of evidence. Section 40(1)(e) gives to the court the power to admit 'any other evidence'. Also, under s 31(2) the court may, in deciding an appeal, have regard to any relevant matter that has occurred between the time of conviction and the hearing of the appeal.

18 The affidavit of Mr Williams establishes that, on 16 May 2006 (after the appellant had been sentenced), the Department of Immigration and Citizenship sent the appellant a notification of intention to cancel his 'Resident Return Visa'. This was because information had come to the notice of the department 'whereby the Minister may reasonably suspect that [the appellant was] not of good character'. Included amongst the matters to be taken into account in that respect was the fact of the appellant's conviction in these proceedings.

19 On 16 April 2007 (after the proceedings before Wheeler JA), Mr Williams wrote to the Department of Immigration and Multicultural Affairs requesting it to inform him whether a decision had been made to deport the appellant upon his release from prison. On 19 April 2007 the Department responded, saying that no decision had yet been made (we were told from the bar table that this remains the position). Inquiries were also made, during April 2007, of the Ministry of Justice and the Parole Board Secretariat concerning the question whether the prospect of the appellant's deportation had any consequence in respect of his treatment while imprisoned. A response was received from the Department of Corrective Services by way of a letter dated 16 April 2007. That letter revealed that the appellant was under normal supervision as a medium security prisoner at Acacia Prison. Paragraphs 3 and 4 of the letter read as follows:

Eligibility to be transferred to a minimum security prison

Due to Mr Cohen being under consideration for cancellation of his visa and due to his offence type, it is Departmental policy to not allow a reduction to minimum security rating for prisoners in this situation. Should the Department of Immigration and Citizenship (DIAC) advise he is no longer of interest to them, this will be reviewed.

Work Release is now known as Re-entry Release. Mr Cohen will be eligible to apply on 1 December 2011 with an eligible commencement date of 1 March 2012. Should confirmation be received of his visa cancellation, then it has been Prisoner Review Board policy to date not to grant a Re-entry Release Order, as the prisoner is unable to work as he will be removed from Australia upon release from prison.

20 As a general principle, sentencing judges may have regard to circumstances which would make imprisonment more arduous for a particular offender than is normal: Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260 [24], [49]; R v Vachalec [1981] 1 NSWLR 351, 353. Where additional evidence to that effect is led on appeal and the appellate court considers that it should lead to the imposition of a sentence different from that imposed by the sentencing judge, then, even if the sentencing judge's discretion has not miscarried, the case must be treated as one calling for appellate intervention: Eliasen v The Queen (1991) 53 A Crim R 391, 394 (Crockett J, McGarvie & Phillips JJ agreeing) and see also de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [136] (Roberts-Smith JA); and Bekink v The Queen [1999] WASCA 160; (1999) 107 A Crim R 415 [11] (Ipp J).

21 However, it is clear that the possibility of deportation alone cannot be taken into account in mitigation of sentence: Houghton [23]; Dauphin v The Queen [2002] WASCA 104 [21] - [22]; R v Latumetan [2003] NSWCCA 70; R v Van Hong Pham [2005] NSWCCA 94. Also, in Houghton Roberts-Smith JA considered that stricter and more adverse conditions of imprisonment, arising as a consequence of the prospect of deportation, could also not be taken into account in mitigation of sentence. The other two judges in that case found it unnecessary to decide the question [50] - [51].

22 The issue of adverse prison conditions has given rise to differences in approach in the cases that have considered it. These are discussed in my judgment in Houghton at some length [23] - [38]. I will not repeat what I there said. Many of the cases discussed deal with circumstances in which imprisonment is made more arduous as a consequence of subjective matters that are personal to the offender. Examples are imprisonment in a foreign environment (Juli v The Queen (1990) 50 A Crim R 31, 37); a case in which the offender is subject to a disability not catered for by the prison facilities (R v Todd [1976] Qd R 21); and special restrictions arising only because the offender was infected by HIV (Eliasen).

23 However, a number of the cases deal with conditions of imprisonment that are more severe than those that might ordinarily be anticipated for reasons having nothing to do with subjective matters that are personal to the offender (in the sense, for example, of illness or disability). Examples of these include imprisonment in lockdown conditions (Director of Public Prosecutions (Vic) v Faure [2005] VSCA 91; (2005) 12 VR 115; Bekink [11] - [16] (Ipp J), [29] - [30] (Heenan J) and cf [20] - [24] (Anderson J)); and imprisonment in solitary confinement or protective custody (R v Davies (1979) 68 Cr App R 319; R v Boon (Unreported, CCA SCt of NSW, 17 November 1983); R v Rostom [1996] VicRp 60; [1996] 2 VR 97; R v Kasulaitis [1998] 4 VR 224). In each of these cases the harsher than usual prison conditions were unrelated to the offending conduct (see, also, in this respect, R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231).

24 Some disquiet has been expressed at the notion of making allowance for an unduly harsh prison regime. In Bekink Anderson J (in dissent) said [22] - [24]:

I am not aware of any principle of sentencing that makes the sentence conditional on the prison regime being of a particular quality or which requires the sentencing court to appraise or evaluate the actual conditions in the various prisons to which the prisoner is likely to be sent, before handing down sentence. Therefore, I think it is impossible to take the next step called for by the argument. That is, that if it should turn out that the conditions are harsher than those that were assumed at the time of sentence, the sentence should be shortened on appeal.

In my opinion, there is no basis in law for this approach.

This is not to say that courts leave out of account the particular way in which imprisonment may affect a particular prisoner. It is one thing, however, to say that judges must have regard for matters personal to a convicted person in determining the appropriate punishment for him or her. It is quite another thing to say that the length of prison terms generally should be linked to some norm as regards prison conditions and adjusted according to whether the prison in question meets the norm.

Making an allowance for an unduly harsh prison regime creates considerable difficulty. Such an approach may lead to a court participating in both law enforcement and the administration of prisons. The latter is traditionally a matter for a different arm of government. A consideration of the doctrine of the separation of powers suggests that involvement of this kind by the courts is inappropriate.

26 In de la Espriella-Velasco Roberts-Smith JA said that the difficulty involved with taking into account the likelihood that part or all of a sentence may be served under a particular direction or regime is that it 'involves the court in making a prediction about how the offender will be dealt with in the prison system in future', when that prediction may not be fulfilled [129]. He said [138]:

[T]his Court does not supervise sentences once they have been imposed and the fact that an offender may have to serve a sentence under more onerous conditions than were apparent at the time of sentencing, will not necessarily require this Court to interfere with a sentence that was otherwise unimpeachable.

27 He went on to say in relation to Bekink [135]:

[Ipp J] referred to a comment by Kirby P ... in R v Astill (No 2) (1992) 64 A Crim R 289 at 293 - 294 to the effect that ordinary sentencing principles would require consideration to be given to the disparity between 'arduous sentencing conditions' and 'ordinary sentencing conditions'. However, Kirby P was in dissent in that case and as Anderson J pointed out in Bekink (at [24]), it is one thing to say that Judges must have regard to matters personal to an offender in determining the appropriate punishment for him or her but quite another to say that the length of prison terms generally should be linked to some norm and adjusted according to whether the offender's incarceration differs from the norm.

28 In Houghton, after mentioning that he was not prepared to assume that the consequences of the offender's potential deportation gave rise to a hardship of the kind that should be taken into account in considering whether the sentence of imprisonment that had been imposed upon him was appropriate, Roberts-Smith JA went on to say [51]:

The consequences upon which the appellant relies are that he will probably lose (or at least suffer a diminution of) the prospect of being given a minimum security rating and home leave privileges and ineligibility for a re-entry release order. It cannot be confidently said that these consequences are probable. They all involve assessments and decisions yet to be made by the Executive. More importantly, though, they do not seem to me to be hardships of the kind with which the principle is concerned. They are measures which the relevant authorities may take which would have the effect of ameliorating (if not removing to some extent) the imprisonment the offender would otherwise ordinarily have to serve. I appreciate that in one sense the denial of an amelioration of imprisonment may be said to be a hardship, but I do not consider that to fall within the scope of this principle.

29 In this case concerns of the kind discussed by Gray J, Anderson J and Roberts-Smith JA are particularly apposite. There is no evidence that the appellant will be afforded the privilege (it is not a right) of being moved to a lower security prison if his visa is not cancelled. Nor is there any evidence of when he would have been moved to a lower security prison, if that was to have happened but will not now happen. Similarly, there is nothing to say that the appellant will definitely be granted the privilege of re-entry release (again, this is not a right) if he is not to be deported. If he is to be granted that privilege, it will commence, at the earliest, on 1 March 2012, six months before he is due to be released. As I have said, no decision has yet been made whether or not the appellant will be deported. Consequently, the prospect of ineligibility for these privileges is merely speculative at this stage. The possibility that privileges that are granted only at the discretion of the executive (and, hence, would not ordinarily have been taken into account when sentencing an offender) might be denied seems to me to be an insufficient basis for interfering with the sentences imposed. Consequently, although I would be prepared to grant leave to make the amendment sought, and to introduce the evidence to which I have referred, I am not prepared to interfere with the sentences imposed upon the basis of the matters asserted in this ground.

30 There remains the question whether ground 1 has been made out.

31 A claim that a sentence is manifestly excessive depends upon an inference of error arising from the sentence imposed: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [3]. In considering whether or not it is manifestly excessive the sentence must be viewed from the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342.

32 In the case of each of the offences committed by the appellant, the maximum sentence provided for by the Misuse of Drugs Act is a term of imprisonment of 25 years or a fine of $100,000 or both: s 34(1). The offences involved a total quantity of 167.32 g of methylamphetamine and 13.5 g of cocaine. The quantity of pure methylamphetamine was 33.43 g. The quantity of pure cocaine was 4.05 g. The quantity involved in respect of count 2 was, as I have said, 164 g of methylamphetamine with a purity of 20%. When considering the appropriate sentence for each of count 2 and count 3 (the cocaine offence), it would be an error to focus exclusively on the quantity of the drug involved: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, although that may be an important consideration. It is important, also, to consider the role played by the offender in the commission of the offence, the duration of the offending behaviour, the offender's knowledge of the type and amount of drugs involved and any other relevant matters. The cases in this respect reveal that, where, to the knowledge of the offender, the dealing has involved significant quantities of serious drugs for commercial gain, substantial sentences have ordinarily been imposed.

33 In Cameron v The Queen [2000] WASCA 286, the offender pleaded guilty to possession of 1.1 kg of methylamphetamine with a purity of 3% to 4%, with intent to sell or supply. This translated to a quantity of about 38.5 g of pure methylamphetamine. The offender had acted as a courier. He had prior convictions that were unrelated to drug offences. His appeal against a term of 9 years' imprisonment was dismissed. However, after a successful High Court appeal, the matter was remitted to the Court of Criminal Appeal and he was sentenced to a term of 8 years' imprisonment (a discount of around 2 years was allowed in respect of the plea of guilty): Cameron v The Queen [2002] WASCA 81.

34 In Aconi v The Queen [2001] WASCA 211, the offender had pleaded guilty on the fast-track to two counts of possessing heroin with intent to sell or supply. The amounts involved were respectively 112.5 g with a purity of 43% and 480.2 g with a purity of 57% (322 g of pure heroin). The offender was not an addict. He had no prior convictions for drug offences. He was found to have been higher up in the distribution chain than a 'mere courier'. He was sentenced to a term of 13 years' imprisonment on each count, to be served concurrently.

35 In Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19 the offender was convicted, after a trial, on one count of selling 27 g of heroin and on another of possession of just under 100 g of heroin with intent to sell or supply. The purity of the drug was not identified but, in Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107, it was said to have been around 57%. The offender was a first offender and had been the principal in the offending behaviour. He was sentenced to a term of 7 years' imprisonment for the offence of selling heroin and to a term of 12 years' imprisonment, to be served concurrently, for the offence of possession of heroin with intent to sell or supply. His appeal against sentence was dismissed.

36 In Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55 the appellant, after late pleas of guilty, was convicted on one count of possession of methylamphetamine with intent to sell or supply (53.9 g with a purity of 41%) and one count of simple possession of methylamphetamine (0.1 g with a purity of 59.3%). He was a user/dealer who had been 'tasked' to collect the drugs. He was to receive part of the drug at no cost, as his reward. He was sentenced to a term of 6 years and 8 months' imprisonment on the first count and to a term of 15 months' imprisonment on the second. The terms were ordered to be served concurrently. His appeal against sentence was dismissed.

37 In Delovski v The Queen [2002] WASCA 88 the offender pleaded guilty to the sale of 524 g of heroin with a purity of 25%. He was found to have been more than 'a mere courier' and was 'the person entrusted with the task of making the sale'. He had not received any payment for his services from his brother, on whose behalf he had been acting. He had no previous convictions. He was sentenced to a term of 9 years' imprisonment. His appeal was dismissed.

38 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%, with intent to sell or supply. He was found to have been a courier. However the court also found that he knew that he must have been dealing in a large quantity of drugs. He had no relevant prior convictions. He was sentenced to a term of 10 years' imprisonment. His application for leave to appeal was refused.

39 In Kirby v The Queen [2003] WASCA 164 the offender was convicted, after pleading guilty on the fast-track, on one count of possession of cocaine with intent to sell or supply (4.85 g with a purity of 24%) and one count of possession of amphetamine with intent to sell or supply (3.168 kg with a purity of 9% to 10%). These offences were committed in circumstances in which another person had asked the appellant for the use of his premises and other items in order to store the amphetamine prior to its return to the original supplier. The appellant had previously been convicted of possession of amphetamine with intent to sell or supply, in respect of which he had been sentenced to a term of 2 years and 6 months' imprisonment. He was sentenced to a term of 4 years' imprisonment on count 1 and to a term of 9 years' imprisonment on count 2. The second term of imprisonment was ordered to commence after the appellant had served 3 years and 4 months of the term imposed in respect of count 1. His appeal against sentence was dismissed.

40 In Sinagra-Brisca the offender was convicted, after pleading guilty on the fast-track, on four counts of possession of drugs with intent to sell or supply. Counts 1 and 2 involved possession of quantities (2.4 kg of MDMA and 5.06 kg of methylamphetamine) far in excess of that involved in this case. However, count 3 involved possession of 800 g of methylamphetamine with a purity of 28% to 70% and count 4 involved 14 g of MDMA with a purity of 18%. The offender was a significant organiser and dealer in a well-organised syndicate. He had a prior record for drug offences. He was ultimately sentenced to a total term of 20 years and 6 months' imprisonment. In respect of count 3 he was sentenced to a term of 3 years' imprisonment but the sentencing judge said that, if that had been the only charge, the term imposed would have been one of 9 years' imprisonment, discounted to 7 years in respect of the fast-track plea of guilty. He was sentenced to a term of 3 years' imprisonment in respect of count 4.

41 In Stapleton v The Queen [2004] WASCA 130, the offender pleaded guilty to supplying 437 g of methylamphetamine with a purity of 58%. He had no relevant previous convictions. His part in the enterprise was found to have been unsophisticated. He was to have received only a small reward in respect of his role. He was sentenced to a term of 9 years' imprisonment. His application for leave to appeal was dismissed.

42 In Tulloh, the offender was convicted, after a trial, of possession of a total of about 805 g of methylamphetamine, with a purity of around 60%, with the intention of selling or supplying it. He was sentenced to a term of 15 years' imprisonment. He had minor prior convictions for cultivation of cannabis and possession of an offensive weapon. His application for leave to appeal was refused.

43 All of these sentences were imposed prior to the introduction of the transitional provisions contained within sch 1 to the Sentencing Legislation (Amendment and Repeal) Act 2003 (WA). Consequently, for comparative purposes, each must be reduced by one-third. The following cases were decided after the transitional provisions came into effect.

44 In Barnes v The State of Western Australia [2004] WASCA 258 the offender was convicted of possession of methylamphetamine with intent to sell or supply. The offence involved two packets of methylamphetamine, the first containing 125 g with a purity of 74% and the second containing 246 g (in rock form) with a purity of 17%. The offender was a dealer at the upper end of the supply chain. He had pleaded not guilty and had a substantial criminal record for possession of amphetamines with intent to sell or supply. He had been sentenced, in 2001, to a term of 5 years' imprisonment for an offence that post-dated the commission of the current offence by 6 months. He was sentenced to a term of 7 years and 4 months' imprisonment. His appeal against sentence was allowed on the basis that insufficient weight had been given to the effect of the sentence imposed in 2001. His sentence was consequently altered to a term of 5 years and 10 months' imprisonment.

45 In Benter v The State of Western Australia [2005] WASCA 245 the offender was convicted on one count of possession of methylamphetamine with intent to sell or supply. The quantity involved was 222.4 g with a purity of between 53% and 65%. The offender had made a late plea of guilty. He had purchased the drugs from a co-offender (Urbano) for $40,000. He had no relevant prior convictions, although the sentencing judge took into account the fact that the offence had not been an isolated one. A term of 7 years' imprisonment was upheld on appeal.

46 In Urbano v The State of Western Australia [2006] WASCA 147 the offender was convicted, after a trial, on one count of selling 222.4 g of methylamphetamine (the drugs sold to Benter) and one count of possession of 11.4 g of methylamphetamine, with a purity of 76%, with intent to sell or supply. He had a significant criminal record, although the only prior conviction for a drug related offence was a minor one (possession of a smoking implement). He was sentenced to a total of 8 years' imprisonment. His appeal against sentence was dismissed.

47 In Ruich v The State of Western Australia [2006] WASCA 241 the offender was convicted on one count of conspiracy to sell or supply heroin, one count of supplying heroin (a quantity of 2.02 g with a purity of 36%) and one count of possession of heroin with intent to sell or supply (a quantity of 35.75 g with a purity of 38%). He pleaded guilty to all three charges. He had a significant record of relevant prior convictions. His appeal against a total sentence of 7 years and 4 months' imprisonment was dismissed.

48 In Dao v The State of Western Australia [2007] WASCA 237 the offender was convicted on 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. She pleaded guilty to both offences. She had transported the drugs (which had a street value of $390,000) from Sydney to Perth. Her appeal against a total sentence of 6 years' imprisonment was dismissed.

49 In Monument v The State of Western Australia [2007] WASCA 239 the offender was convicted of possession of 499 g of methylamphetamine with a purity of 78% with intent to sell or supply and on a second count of possession of somatropin with intent to supply (he had proposed to use half of the somatropin himself and to supply the rest to others). He pleaded guilty to both offences. He had no relevant criminal record. A sentence of 7 years' imprisonment was upheld on appeal.

50 This review of the cases reveals that the sentences imposed in respect of counts 2 and 3 in the present case were comparatively severe. Notwithstanding this, because of the absence of any plea of guilty and because the appellant played an active role at a relatively senior level in the drug chain (having regard for the quantity and purity of the drugs possessed by him), I would have been disinclined to interfere in the sentence imposed were it not for the significant additional penalty imposed upon the appellant by way of the forfeiture of his lawfully acquired million dollar asset in the form of the Coolbinia house.

51 However, because the forfeiture of the house amounted to a significant additional penalty, and because the sentence imposed by the sentencing judge in respect of each of counts 2 and 3 was at the upper level of sentences normally imposed in comparable cases, it seems to me that, in the case of each of those counts, the penalty imposed was manifestly excessive. In my respectful opinion, appropriate penalties would have been terms of imprisonment of 6 years and 6 months' imprisonment in respect of count 2 and 5 years' imprisonment in respect of count 3.

52 The other orders made by the sentencing judge, including those for concurrency and cumulation should be left undisturbed. That is because the requirements of the totality principle are satisfied by what would then be a total sentence of 7 years and 6 months' imprisonment. That principle has two limbs. The first is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the

case, including those referrable to the offender personally: Woods v The Queen (1994) 14 WAR 341. The second limb is that the court should not impose a 'crushing' sentence, being one that destroys any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1993) 20 WAR 201, 216 (Anderson J). A total sentence of 7 1/2 years' imprisonment seems to me to be proportionate in all of the circumstances and it could not be described as crushing.

53 I would consequently uphold the application for review of the judgment of Wheeler JA, grant leave to appeal, allow the appeal, set aside the sentences imposed in respect of counts 2 and 3 and substitute, for those sentences, terms of imprisonment of 6 years and 6 months' imprisonment and 5 years' imprisonment respectively. Those sentences will be served concurrently with each other and with that imposed by the sentencing judge in respect of count 4. However the sentences imposed on counts 1 and 2 will be served cumulatively, making up a total of 7 years and 6 months' imprisonment. The sentences will date from 31 August 2005, being the date upon which the appellant was taken into custody. He will remain eligible for parole. He will consequently be eligible for parole after he has served 5 years and 6 months of his total sentence.

54 McLURE JA: I have had the advantage of reading the reasons for judgment of Steytler P. I agree with the President for the reasons he gives that Wheeler JA erred in refusing to grant leave to appeal and that the additional ground of appeal should be dismissed. I also agree that the term of imprisonment of 7 years on count 3 is manifestly excessive. I would in lieu thereof impose a sentence of 5 years' imprisonment. However, taking into account all relevant circumstances, including the confiscation of the appellant's inherited asset, I am not satisfied that the sentence of 8 years' imprisonment on count 2 is manifestly excessive or that the total effective sentence of 9 years' imprisonment offends the totality principle. These sentences are consistent with the range of sentences in the cases detailed in the President's reasons. The reduction in the length of the sentence on count 3 does not alter that assessment.

55 When considering whether an individual and total sentence is within the range customarily imposed for offences of this type, careful regard

must be given to the variables that have a material influence on the outcome. In this case the evidence established that the 53-year-old appellant carried on business as a drug trafficker, had prior convictions for drug trafficking and was not entitled to the considerable discount attracted by a plea of guilty, in particular a fast-track plea. I would in this case give some weight to the only mitigating factor being the forfeiture of the appellant's inherited property. However, it must be borne in mind 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. I am not satisfied that the market value of the inherited property reflects a loss that is wholly untainted by his criminal conduct.

56 Although the sentence on count 2 and the total sentence are towards the high end of the range, I am satisfied they are within a sound sentencing discretion. I would grant leave to appeal, but dismiss the appeal.

Legislation (Amendment and Repeal) Act 2003

Property Confiscation Act 2000

COHEN -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2007] WASCA 279 (19 December 2007)

At a glance

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Judgment (79 paragraphs)

COHEN -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2007] WASCA 279 (19 December 2007)

Legislation Cited (4)

Cases Cited (11)