Application for leave to appeal against sentence granted

Atholwood v The Queen [2000] WASCA 76

La Rosa v The Queen, unreported; CCA SCt of WA; Library No 960628; 31 October 1996

Lang v The Queen, unreported; CCA SCt of WA; Library No 940484; 6 September 1994

Miller v The Queen [1999] WASCA 66

Quach v The Queen [1999] WASCA 210

R v Bellisimo (1996) 84 A Crim R 465

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

R v Peterson [1984] WAR 329

R v Votano [2000] WASCA 144

Sikaloski v The Queen [2000] WASCA 63

1 KENNEDY J: The applicant pleaded guilty in the District Court on 4 August 2000 to a single count in an indictment alleging that, on 2 March 2000, at Mindarie, she had in her possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. The applicant had previously pleaded guilty to the charge in the Court of Petty Sessions on 8 June 2000 and, whilst it was not a fast track plea, it was accepted by the Crown that it represented an early plea.

2 The facts presented to the learned sentencing Judge by the Crown prosecutor were extremely brief. His Honour was informed that, at about 1.10 pm on Thursday, 2 March 2000, the applicant was driving a Nissan Patrol vehicle in Marmion Avenue, Mindarie, when police stopped the vehicle and inquired of the applicant as to whether she had any drugs on her person. She responded by producing from her handbag 171 grams of homebake methylamphetamine paste of 28 per cent purity, which was wrapped in black insulation tape. Also found in her handbag were a number of plastic resealable bags. The applicant was interviewed by the police in relation to the drug and she admitted that she knew what it was.

3 Counsel for the applicant told the learned sentencing Judge that the applicant had been taking the drug out to the bush, with the intention of burying it and then either giving it back to the person who had previously concealed it at her house, or notifying him where it was buried out in the bush, so that he could recover it. No explanation was given for the applicant's having the plastic resealable bags in her handbag. It was suggested on her behalf that the applicant had co-operated fully with the police, but she had not been prepared to identify the person who was said to have left the drug at her home or otherwise to identify the source of the drug. There was no information regarding the manner in which the applicant had herself come into the possession of the methylamphetamine or as to what she intended to do with it, apart from her own statements subsequent to her interview with the police.

4 The applicant was advised by her solicitor to go to the authorities, but it was apparently also explained to her that "when people get themselves involved in drugs it can be a very, very dangerous situation that they find themselves in", and she feared what might occur when she came to be released from custody. It was conceded that she was in debt to the person who had left the drug at her house.

5 At the time of her sentencing, the applicant was 27 years of age. She had convictions in 1998 for possessing cocaine and for possessing a smoking implement, in respect of which she had been fined a total of $500. She had no other convictions.

6 A pre-sentence report indicated that the applicant had a close and loving relationship with her family, and that she maintained a close relationship with both parents, although they are now separated. She was described as having a good background, with a stable and supportive family involvement. She believed that, as a child, she suffered from attention deficit disorder and bi-polar disorder, although it was not possible for the writer of the report to verify this in the time available to her. Confirmation of these conditions, however, came from the applicant's mother. Notwithstanding these disabilities, it appears that the applicant had a good record of employment.

7 The sentencing Judge was told that the applicant had become involved with a man who was a drug user and who was abusive and violent towards her. He supplied her with amphetamine. She claimed to have used amphetamine for a period of six months before giving it up. This person was clearly not the person who was said to have left the drug at her house. The drug, she claimed, had been left while she was not at her house, but obviously she either knew, or discovered by some process which was not identified, who had left the drug at her house and where it had been hidden. There was no suggestion that she was to benefit financially from the sale of the drug.

8 The learned sentencing Judge, having stated the facts and noting that the applicant had a substantial employment record since leaving school, rightly took the view that the matter was too serious for an intensive supervision order and that a term of imprisonment would need to be imposed. Having regard to the weight and purity of the amphetamine, his Honour rejected the applicant's claim that she was only involved at the lower end of the scale, and he observed that the courts have laid down that both personal and general deterrence are the main considerations in the sentencing of such offenders. He sentenced her to a term of imprisonment of 6 years, with eligibility for parole. He backdated the sentence to 6 June 2000, the date on which the applicant was taken into custody.

9 The applicant seeks leave to appeal against her sentence, claiming that it was manifestly excessive and outside the range of a sound discretionary sentence, given -

"(1) the circumstances in which the drugs were only being held and to be given back to the original source;

(2) the amount of drugs involved;

(3) not for financial reward;

(4) personal antecedents of applicant."

10 Clearly, the applicant was assisting the owner of the drug in its continued concealment, prior to its distribution within the community. Methylamphetamine is now regarded as coming within the same general category as heroin - see R v Darwell (1997) 94 A Crim R 35, at 40. Its distribution gives rise to tremendous harm within the community. Addiction to methylamphetamine, and to similar drugs, has led to many armed robberies and home invasions by addicts in order to meet the cost of their addiction. The applicant, in acting as she did, was assisting in the ultimate distribution of the drug. The fact that she was not acting for financial reward should not in this case lead to any significant discount in the sentence.

11 The quantity of methylamphetamine of which the applicant was in possession was over six times the amount prescribed for declaring her a drug trafficker, and she was so declared. The quantity was 85 times the amount, which gives rise to the statutory presumption of an intention to sell or supply the drug.

12 Notwithstanding the applicant's generally good background, her attempts to rehabilitate herself to the extent of undertaking peer support counselling for others while she has been in custody, and the various mitigating factors to which I have referred, and while acknowledging that the sentence imposed by the learned District Court Judge was a very heavy sentence, consistently with the principle laid down in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, at 671 - 672, regarding the role of the sentencing Judge, I would not interfere with it. It must be reiterated that personal and general deterrence are important factors in this area. Although, therefore, I would give the applicant leave to appeal against her sentence, I would dismiss her appeal.

13 WALLWORK J: I agree with the reasons for judgment of Kennedy J and to the orders which have been proposed by his Honour. There is nothing I wish to add.

14 MILLER J: I have had the benefit of reading in draft the reasons published by Kennedy J. I am in agreement with those reasons and have nothing further to add.