Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Appeal against sentence - Conspiracy to sell methylamphetamine - Whether proper to ground appeal on starting point used by sentencing Judge - Whether sufficient discount for guilty plea - Whether sufficient weight given to personal factors

Kezkiropoulos v The Queen [2002] WASCA 352

Kirby v The Queen [2003] WASCA 164

Krakouer v The Queen, unreported; CCA SCt of WA; Library No 960438; 9 August 1996

Pinkstone v The Queen [2003] WASCA 66

R v Braham (1994) 73 A Crim R 353

Singara-Brisca v The Queen [2004] WASCA 68

Smith v The Queen, unreported; CCA SCt of WA; Library No 920285; 2 May 1994

1 TEMPLEMAN J: We have before us three applications for leave to appeal against sentence. The applicants are William and Lance Collard and their father Harry Collard. They seek leave to appeal against the sentences imposed on them in the District Court for conspiracy to sell a prohibited drug, namely, methylamphetamine. The indictment to which two pleaded guilty and one on which one was tried is dated 24 November 2003.

2 It charges that between 24 July 2001 and 2 February 2002 at Perth, Lance Murray Collard, Harry Collard and William James Collard conspired together to sell methylamphetamine to another. There is a second count relating only to Lance Collard: that on 28 January 2002 at Heathridge he supplied methylamphetamine to another. The indictment was amended at the trial, there having previously been an indictment of 5 November 2002 which contained additional charges. Mr Miocevich who appears for all the applicants today rightly drew that to our attention.

3 I mention it simply to say that nothing in the end turns on it. All the applicants were to be tried together but Lance and Harry pleaded guilty on the morning of the trial and William went on to trial and was convicted by the verdict of the jury.

4 The three applicants were running a well organised family business for the supply of methylamphetamine, particularly to young Aboriginal persons who are particularly vulnerable members of the community in this respect.

5 The business was carried out at a number of houses in the Perth metropolitan area and the applicants were charged following numerous telephone intercepts and the execution of search warrants on a number of premises. Those activities gathered evidence which demonstrated that the prosecution case was very strong.

6 In sentencing the applicants the judge set out something of the circumstances, and I will quote from p 76 and p 77 of the appeal book, in these terms:

"The gravity of the instant offence is that it lasted over a period of 6 months, and it was a business in full operation, as can be seen from the telephone intercepts. There is a degree of planning in relation to the conspiracy because of the leasing of various houses from which the drugs could be sold.

What was achieved through the conspiracy was the sale of methylamphetamine to anybody that wanted to buy it who knew where to go to ask for it and that some great sums of money, large sums of money, were referred to in the telephone intercepts over the period of time. The overall criminality of the conspiracy has to bear some resemblance to the maximum penalty which can be imposed for this type of offence and it is a serious example of a criminal conspiracy to sell methylamphetamine and numerous offences were committed during the conspiracy of sale and the one sale which is set out in the second charge to which you Lance Collard have pleaded guilty to is but an example of those sales."

7 His Honour then referred to the second charge to which Lance Collard had pleaded guilty which was but an example of those sales. Continuing with the quote:

"When one looks at the drug that was being sold, amphetamine is characterised as a drug in the higher range of seriousness in the scale of drug trafficking offences and in this regard the major sentencing consideration for trafficking in dangerous drugs of addiction such as amphetamine is deterrence, personal deterrence of you not to do it again, and general deterrence for others who may be minded to engage in such conspiracies.

It is obvious to anyone concerned in the criminal justice system that traffic in amphetamines is rife in this state and it's a tragedy that very young people are exposed to it. It has caused very widespread community concern not only because of the level of crime that it engenders but also for the devastating effect it has on the lives of the people who become addicted to amphetamine.

The numbers of people who come through this court and the Supreme Court to be dealt with who have had some contact with amphetamine is too numerous to mention. People commit drugs (sic, drug offences) while affected or people committed offences to buy the drug. The effect of that on the community is notorious. That means that severe deterrent sentences are inevitable for those who choose to become involved in the business of dealing in drugs, and conspiracy to deal in drugs is to be viewed very seriously by the courts."

8 In expressing himself in those terms, his Honour I think spoke perfectly properly in relation to the seriousness of the offences with which these applicants were charged.

9 His Honour also had regard, in sentencing, to the personal circumstances of each of the applicants and set those out on p 73, p 74 and p 75 of the appeal book. He pointed out that they were all men of mature years. They had all had trouble with the law although to various different extents. His Honour continued:

"Yet, knowing the effect of breaking the law had on your lives, you were still prepared to deal in these drugs with young Aboriginals for profit. Your crime has brought great shame on yourselves and your families and such offences should be dealt with by the court in an appropriate punishment and that can only be in significant terms of imprisonment."

10 His Honour then turned to refer to the personal circumstances; first of Lance Collard, secondly of Harry Collard and thirdly of William Collard. I am not going to refer to those in any detail. I will come back to the circumstances of Harry Collard in a moment but it is necessary only to point out that the personal circumstances were dealt with very fully by his Honour and there is no complaint that they were not dealt with in a full and proper manner.

11 The sentences which were imposed in the result were derived from what is said to have been a starting point of 14 years' imprisonment, reduced to 13 years for Lance and Harry Collard to take account of their respective pleas of guilty and reduced to 13 and a half years for William Collard to take account of the fact that he had cooperated during the trial. There was then of course the statutory one-third reduction as a result of the application of the recent amendments to the sentencing legislation. These brought the sentences for Lance and Harry Collard down to 8 years and 8 months' imprisonment and to 9 years for William Collard.

12 The application for leave is in substantially the same terms for each of the applicants but there is an additional consideration in relation to Harry Collard. The first ground of appeal is that the stated starting point of 14 years was excessive. That is a reference to his Honour's sentencing remarks at p 77 of the appeal book, where his Honour said:

"Coming to the terms of the sentence at this time, in relation to the three of you in my opinion under the old legislation the appropriate sentence before looking at discounts would have been 14 years -"

and his Honour then went on to refer to the discounts for the pleas, et cetera.

13 What is said by Mr Miocevich is that the starting point must in fact have been more than 14 years because the discount was said to refer only to the pleas of guilty and not to the personal circumstances. However, it is not a proper ground of appeal to complain about the stated starting point, whatever that may have been. We have been referred to the case of Kirby v The Queen [2003] WASCA 164 this morning, a decision of this Court at par [133] in the judgment of Roberts-Smith J. His Honour referred to the decision of Pinkstone v The Queen [2003] WASCA 66 at [87], in which Murray J had said:

"Whatever may be said of the sentencing process itself, it is not legitimate to couch a ground of appeal so as to complain that a 'starting point' is manifestly excessive. It is only the sentence imposed by the court of which such a complaint may be made."

14 In any event, it is I think necessary to have regard to a number of considerations in looking generally at the sentence. The first is that the maximum penalty for the conspiracy is a term of imprisonment not exceeding 20 years.

15 Methylamphetamine is now regarded as being at the high end of the scale of seriousness in the hierarchy of drugs and that is a fact which his Honour acknowledged. The particular conspiracy offence is very serious because it continued for a period of six months. It reflected a substantial business operation which was clear from the telephone intercepts. References were made to great sums of money being involved in the business.

16 There was a considerable amount of planning in relation to the conspiracy because various houses from which the drugs could be sold were leased from time to time, no doubt in an attempt to avoid detection. The business was such that, as his Honour said, the methylamphetamine was available to anybody who wanted to buy it and knew where to go to ask for it.

17 The case against the applicants was very strong and although William Collard entered into the conspiracy a little later than the others his culpability was not reduced by that fact.

18 Furthermore, the dominant sentencing consideration for offences of this kind are general and personal deterrence so that the sentence which his Honour had in mind as a sentence which would be appropriate before the discount for pleas of guilty, namely 14 years' imprisonment, was in my view well within the range of a sound sentencing discretion.

19 Mr Miocevich has referred us to cases such as Kezkiropoulos v The Queen [2002] WASCA 352 and Krakouer v The Queen, unreported; CCA SCt of WA; Library No 960438; 9 August 1996, where very much larger amounts of drugs were involved and in which sentences not much more substantial were imposed, but that I think overlooks the fact that this was an ongoing business. Although only a relatively small amount of the drug was actually detected, the inference is clear that very much more substantial quantities were being distributed in the community over that very long period.

20 The second ground on which leave is sought in relation to Lance and Harry Collard was that the discount of one year granted for the plea of guilty was insufficient. That is not a ground which has been pressed on us this morning but it is a ground of appeal and it is simply necessary to say that the amount of the discount is very much a matter for the discretion of the learned sentencing judge.

21 In the case of Singara-Brisca v The Queen [2004] WASCA 68, a decision of this Court, Wheeler J, with whom McLure J and I agreed, said in relation to this kind of issue:

"The appropriate question to be asked is whether in all the circumstances the sentencing Judge has made a proper evaluation of the worth of the plea."

22 Authority is referred to. In this case the pleas were entered very late, in the face of a very strong prosecution case and in circumstances where the offences called for very substantial terms of imprisonment so that, in my view, there is no merit in the suggestion that the discount was insufficient.

23 The additional ground of appeal in relation to Harry Collard, arises from his age and the state of his health. What is said is that insufficient weight was given to mitigating factors and factors personal to him, such as his health, his age and his family circumstances. It is therefore necessary to go back to his Honour's sentencing remarks in relation to Harry Collard which are set out on p 74. His Honour said:

"Turning to you, Harry Collard, you are now a man of mature years, the father of the other two accused. You say that you had a negligent (sic negligible) involvement. I disagree on the basis of the intercepts which I heard during the trial and what I have already said about that. I don't accept your explanation as to why you leased the several houses. It's clear from the intercept that you were being moved on because of what was occurring, and one of the intercepts refers to you receiving a notice from an agent in that regard."

24 This is all, I think, relevant to his Honour's view that Harry Collard was engaged in a supervisory role in the business. Turning to more personal circumstances, his Honour said:

"At the age of 68 you have had a sad life, being removed from your parents and put in an institution with no further contact with your mother and only a contact with your father many years after you were placed in the institution. You have married, had five surviving children and many grandchildren and great-grandchildren.

Very sadly, your wife died earlier this year after prolonged illness and more recently you were granted bail after your plea of guilty so that you could organise the funeral of your young great-grandson, the grandchild of your son William.

Because of your lack of education, you were able to obtain only unskilled work and worked for many years on farms and with CBH and that, no doubt, necessitated you having to move your family to where the work was but, to your credit, you did work consistently over your life until you retired in your mid-fifties.

Currently, you're a pensioner. You were able to purchase a house at Kondinin which you had to sell when your wife was being treated. You suffer from very bad health. You have diabetes, you have associated circulation problems, an enlarged heart and suffer from asthma. You haven't used any drugs apart from alcohol."

25 What is said in relation to Harry Collard is that his Honour made no specific reference to those personal circumstances and in particular the state of his health when sentencing and therefore failed to give weight to what was, it is said, a very significant mitigating circumstance.

26 Reliance is placed on the decision of the Chief Justice in Smith v The Queen, unreported; CCA SCt of WA; Library No 920285; 2 May 1994, in which his Honour said:

"In our opinion the significance of old age is a mitigating factor, particularly when combined with ill health, is that it constitutes a basis on which a court in the exercise of mercy may -"

"impose a sentence significantly shorter than might otherwise be the case. To that extent the need for general deterrence may -"

"be required to surrender some ground to the need to exercise mercy and take account of the possibility that the offender may not live to be released."

27 Smith was quite a different case. It was a case involving a much older offender, somebody well into his 70s, who was convicted of sexual offences committed very many years earlier and in respect of which no complaint had been made until late in Mr Smith's life. It is quite a different case therefore from the present case.

28 Reliance is placed also on the decision in R v Braham (1994) 73 A Crim R 353, which is a drug-related case, which is really to the same effect. Angel J in the Supreme Court of South Australia said that age was often a relevant circumstance but there may be cases in which the circumstances of the offence are so serious that no great weight can be given to personal considerations such as that.

29 In the present case the question whether Mr Harry Collard would live to serve the sentence imposed upon him, was not raised in the course of the plea of mitigation before his Honour. Furthermore, there was no evidence before his Honour as to Mr Collard's life expectancy. He is now 69 years old. He was 68 when sentenced. We are told by Mr Miocevich that the life expectancy for an Aboriginal male is 56 years which means that Mr Collard is happily well past that and of course, the longer one lives the longer one can expect to live.

30 There is no evidence at all about his prognosis, having regard to the conditions to which I have referred and to which his Honour referred in his sentencing remarks. This is a case, in my view, in which although

there are these mitigating circumstances, they carry very little weight having regard to the seriousness of the offence concerned.

31 The inference I draw from the fact that his Honour referred to these matters immediately before sentencing and immediately before considering the discounts for pleas of guilty is that his Honour did not ignore the matters but simply regarded them as being of little weight in the overall scheme of things. In my view, that is an appropriate way to deal with this aspect of the matter.

32 There is also the fact, of course, that as was said in the plea in mitigation, Mr Harry Collard was somebody who had a leadership role in his community and to whom the community looked up. In my view, that is a matter which might have made the sentence imposed on him more substantial than it was. It was an aggravating factor, although his Honour did not make anything of it at the time.

33 In my view, therefore, this is a case unlike Smith. This is a case of a mature man, a leader in the community who engaged in this very serious criminal conspiracy despite his age and health condition. He must have been well aware of the risk he was running if detected: well aware of the risk that a substantial period of imprisonment would be imposed upon him. Nevertheless, he chose to pursue that course of conduct. In those circumstances this is not in my view a case in which the need for general deterrence should be surrendered to the personal circumstances of Mr Harry Collard.

34 For all those reasons I would not grant leave to appeal to any of the applicants and I would dismiss the applications.

35 WHEELER J: I am in agreement with the reasons of Templeman J and with the orders proposed by his Honour.

36 I would make only these additional observations in relation to each of William and Lance Collard. I note that the grounds suggest that in relation to each of them, as well as in relation to Harry Collard, insufficient weight was given to mitigating factors. The factors are only, when one looks at the submissions, these: neither is in particularly good health, although it appears that there is no exceptional medical condition which would call for the exercise of particular mercy.

37 Neither is asserted to be a person of good character. William Collard was serving a suspended sentence for possession of methylamphetamine with intent at the time of this offending, and all that could be said of him

was that he had never received a term of immediate imprisonment before. Lance Collard had a significant record, but it was said on his behalf that his last offence was in 1997 and his last period of imprisonment commenced in 1991.

38 All that is really said in the submissions, I think, is that the health of each is indifferent and that their character could have been worse. In the context of offending which the courts have repeatedly said is of such seriousness, and in relation to which considerations of deterrence are of such prominence that personal circumstances are in any event given little weight, it seems to me that these are not matters upon which either of those applicants could successfully rely, having regard to the terms actually imposed by his Honour and the seriousness of the conspiracy as his Honour explained it.

39 MILLER J: I agree with the reasons delivered by Templeman J and Wheeler J. There is nothing I wish to add. I would refuse leave to appeal on each case.