Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal against sentence - Sentence of 2 years' immediate imprisonment for attempting to pervert the course of justice - Whether sentence manifestly excessive - Totality principle - No error demonstrated - Turns on own facts

Sentencing Act 1995 (WA), s 32

Connell v The Queen (1994) 12 WAR 133

Librizzi v The State of Western Australia [2006] WASCA 237; (2006) 33 WAR 104

McDougall v The State of Western Australia [2009] WASCA 232

Norton v The State of Western Australia [2007] WASCA 75

Ranford v The State of Western Australia [No 2] [2006] WASCA 243

Rauhina v The Queen [2002] WASCA 91

Wilson v The State of Western Australia [2010] WASCA 82

2 BUSS JA: I agree with Mazza J, for the reasons he gives, that neither of the appellant's grounds of appeal has any prospect of success and, in consequence, leave to appeal should be refused and the appeal dismissed. I have a few additional observations.

3 The offence of attempting to pervert the course of justice is serious. Offences of this kind strike at the heart of the criminal justice system. General deterrence is a primary sentencing consideration. There is no tariff for this offence because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, after having regard to the maximum available penalty and any comparable cases. Although there is no tariff, consistency in sentencing in relation to comparable offending and offenders is a fundamental principle of the criminal justice system.

4 In Ranford v The State of Western Australia [No 2] [2006] WASCA 243, Roberts-Smith JA reviewed various authorities as to the sentences which have been imposed for the offence of attempting to pervert the course of justice. Those authorities are, however, of no real assistance in determining whether the sentence imposed on the appellant in the present case was manifestly excessive. All of the authorities reviewed, with the exception of Rauhina v The Queen [2002] WASCA 91, concerned allegations that the offender in question had given a false name to the police to avoid his or her being charged with an offence. Also, Rauhina and other cases cited by the parties, including Norton v The State of Western Australia [2007] WASCA 75, are not relevantly comparable.

5 There is no doubt that the appellant's offending in the present case was very serious, for the reasons identified by Mazza J, and that the term of 2 years' immediate imprisonment reflected a proper exercise of the sentencing judge's discretion. Similarly, nothing in the submissions put to this court by the appellant's counsel revealed any error in his Honour's application of the totality principle.

6 MAZZA J: This is an application for leave to appeal against sentence.

7 The relevant legal principles applicable to this appeal were explained by the court in Wilson v The State of Western Australia [2010] WASCA 82 [2]. There is no need for me to repeat what was said in that case.

8 On 9 November 2009, the appellant pleaded guilty to four offences set out in an indictment dated 30 October 2009 and five offences set out in a notice under s 32 of the Sentencing Act 1995 (WA).

9 Counts 1, 2 and 3 in the indictment alleged offences of possession of a prohibited drug with intent to sell or supply it to another. Count 4 is a charge of attempting to pervert the course of justice.

10 The offences in the s 32 notice were three counts of driving under suspension, one count of possession of stolen or unlawfully obtained property, and one count of driving a vehicle displaying a false numberplate.

11 The drug offences in the indictment occurred on the same day. On 15 November 2008, the appellant was driving his Holden sedan near Coolgardie. He was stopped by police for speeding. The police searched the vehicle's engine bay and found a plastic auto-electrical box containing three snaplock bags. Each of the bags contained methylamphetamine. The first contained 27.8 g at 11% purity, the second 27.6 g at 11% purity and the third 20.3 g at 13% purity. The total amount of methylamphetamine found in the auto-electrical box was 75.7 g.

12 The appellant's vehicle was then conveyed to the Kalgoorlie police station, where it was further searched. In the boot of the vehicle was found an aluminium container. Inside that container were three snaplock bags containing methylamphetamine. The first contained 27.4 g at 11% purity, the second 28.3 g at 11% purity and the third 3.74 g at 12% purity. There was a total of 59.44 g of the drug in the aluminium container.

13 Also within that container was found another snaplock bag which contained 18 ecstasy tablets weighing 5.54 g at 21% purity.

14 The total amount of illicit drugs found in the vehicle was 140.68 g, made up of 135.14 g of methylamphetamine and 5.54 g of ecstasy.

15 In relation to count 4, as a result of the discovery of the drugs in the appellant's vehicle, he was charged with three counts of possession of prohibited drugs with intent to sell or supply on 15 November 2008 and released to bail. In the weeks that followed, the appellant's telephone was intercepted by the police. He was heard, on numerous occasions, discussing with other people a plan to evade criminal responsibility for the drug charges by getting someone else to say that the drugs that the police found in the vehicle were not his.

16 On 12 January 2009, the appellant met with an acquaintance of his named Martin Marchese. The appellant asked Mr Marchese if he would take the blame for the drugs that were found in the appellant's vehicle. Mr Marchese agreed to do so and in return the appellant offered to give Mr Marchese a vehicle valued at approximately $10,000.

17 The appellant arranged for Mr Marchese to attend his solicitor's office the following day. The solicitor prepared a statutory declaration for Mr Marchese in which Mr Marchese stated that he had hidden the drugs in the appellant's vehicle and that the appellant knew nothing about them.

18 The statutory declaration was signed by Mr Marchese before a justice of the peace on 13 January 2009.

19 On 16 January 2009, the appellant took Mr Marchese to the Kalgoorlie police station. Mr Marchese went into the police station with the statutory declaration and presented it to the police. Shortly after, Mr Marchese was interviewed by two detectives. During the course of that interview, Mr Marchese admitted that the statutory declaration was false and that he had agreed to 'take the rap' after being approached by the appellant.

20 With respect to the offences in the s 32 notice, it is unnecessary for me to summarise the facts of those cases because, in the end, the appellant received sentences which were ordered to be served concurrently with the sentences imposed on the indictable offences.

21 The appellant pleaded guilty on the fast-track system to all offences. He was sentenced as follows:

1 x possess 75.70grams of methylamphetamine with intent to sell/supply - s 6(1)(a) MDA

$100,000 and/or 25 years imprisonment - s 34(1)(a) MDA

1 x possess 59.44grams of methylamphetamine with intent to sell/supply - s 6(1)(a) MDA

$100,000 and/or 25 years imprisonment - s 34(1)(a) MDA

1 x possess 5.54grams of MDMA with intent to sell/supply - s 6(1)(a) MDA

$100,000 and/or 25 years imprisonment - s 34(1)(a) MDA

1 x Pervert the course of justice - s 143 Code

7 years imprisonment - s 143 Code

S 32 Notice Charge 1

1 x Driving whilst under suspension - s 49(1)&(2)(a)(ii) RTA

Fine between 8 and 40PU and imprisonment for not more than 12 months - s 49(1)(c)(i) RTA

2 months concurrent and 9 months MDL disqualification

2 years imprisonment and/or $24,000 fine - s 428(1) Code

1 x Driving whilst disentitled - s 49(1)(a)&(3)(c) RTA

Fine between 20PU and 80PU, and imprisonment for not more than 12 months - s 49(1)(c)(ii) RTA

2 months concurrent and 9 months MDL disqualification

1 x Drive vehicle with false plates - s 97(f)(iii) RTA

Fine of 32PU - s 107(2) RTA

1 x Driving whilst disentitled - s 49(1)(a)&(3)(c) RTA

Fine between 20PU and 80PU and imprisonment for not more than 18 months - s 49(1)(c)(ii) RTA

2 months concurrent and 9 months MDL disqualification

22 The learned sentencing judge expressly stated that he had reduced the sentences that he imposed to take into account the appellant's pleas of guilty and his genuine remorse.

23 His Honour correctly observed that the major sentencing consideration with respect to the drug offences was personal and general deterrence and that the appellant's personal circumstances carried less weight. His Honour said that it was a significant feature of the case that the appellant was found with two separate illicit drugs.

24 With respect to the charge of attempting to pervert the course of justice, his Honour correctly observed that there is no tariff for this offence. He noted that the appellant's conduct involved the participation of another person for reward. Further, his Honour observed that a false declaration had been prepared and was proffered to the police. His Honour highlighted the need for deterrence. He categorised this offending as 'very, very serious'.

25 His Honour expressly took into account issues of concurrency and cumulacy and the totality principle.

26 There are two grounds of appeal. First, the sentence of 2 years' imprisonment for the offence of attempting to pervert the course of justice was manifestly excessive. Second, the total term of 6 1/2 years' imprisonment offended the first limb of the totality principle, that is, it was a disproportionate measure of the appellant's total criminality.

27 To determine whether a sentence is manifestly excessive, regard is had to 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 in the scale of seriousness of crimes of that type and the personal circumstances of the offender: McDougall v The State of Western Australia [2009] WASCA 232 [13] (McLure P).

28 The maximum penalty for attempting to pervert the course of justice is 7 years' imprisonment.

29 There is no tariff for the offence of attempting to pervert the course of justice because of the broad spectrum of behaviour that can constitute the offence. However, it is an offence which is ordinarily punished by an immediate term of imprisonment: Librizzi v The State of Western Australia [2006] WASCA 237; (2006) 33 WAR 104 [168] (Buss JA). In Rauhina v The Queen [2002] WASCA 91 [16], Wheeler J (Malcolm CJ and McKechnie J concurring) noted that cases in which an offender gives a false name to police, enters into a false recognisance and the like in the context of traffic offences have not unusually attracted pre-transitional sentences of 12 to 18 months (post-transitional 8 to 12 months), while more serious offences such as in Connell v The Queen (1994) 12 WAR 133 have been met with longer sentences.

30 In Ranford v The State of Western Australia [No 2] [2006] WASCA 243 [36], Roberts-Smith JA referred to some of the factors which bear upon the assessment of the seriousness of the offence of attempting to pervert the course of justice. These factors include:

(a) the nature and seriousness of the consequences sought to be avoided;

(b) the period of time over which the deception occurred, whether it was merely allowed to continue or was repeated or persisted in and what else was done to maintain it;

(c) whether the deception involved some other person either as an accomplice or as a victim;

(d) whether there was any threat or violence involved;

(e) whether the deception caused diversion of investigative police or court resources;

(f) whether the offence was a 'spur of the moment' response or was premeditated and, if so, the degree of premeditation, planning and persistence; and

(g) whether the deception was carried through to the extent of deceiving a court or the creation of false public records, and, if so, the extent and consequence of that.

31 In my opinion, the learned sentencing judge was correct to categorise this case as a very serious instance of offending of this type. The appellant was motivated to avoid conviction for serious drug offences. He was caught in possession of a large quantity of methylamphetamine and a not insignificant quantity of ecstasy. Because he had already served a term of imprisonment for the offence of possession of methylamphetamine with intent to sell or supply it to another, he must have realised that he faced a lengthy term of imprisonment.

32 It is plainly an aggravating factor that the appellant involved Mr Marchese in the commission of the offence with the promise of financial reward. Although Mr Marchese was involved for approximately four days, the telephone conversations intercepted by the police showed that the offence was premeditated and planned. It was hardly a 'spur of the moment' response by the appellant when faced with being charged with the drug offences.

33 It was submitted by the appellant's counsel that the offence was ineptly carried out. It was 'always doomed to fail'. This, counsel said, was because Mr Marchese had been given little information about the quantity of the drugs involved and it quickly became obvious to the police that Mr Marchese had no involvement in the offences. While I accept that the enterprise was badly planned, the intention was to allow an innocent person to be convicted and punished for a serious offence. While the offence could have been more serious had it been better planned, it was, nonetheless, a serious offence of its type.

34 With respect to the appellant's antecedents, he was at the time of his offending a mature man aged 36 years. While he had a good work record and was well thought of by members of the community who had provided character references to the sentencing judge, he had been convicted and sentenced to 12 months' imprisonment in 1998 for possession of amphetamine with intent to sell or supply it to another.

35 In my opinion, the sentence imposed by his Honour was not, in all of the circumstances of this case, manifestly excessive. His Honour paid due regard to the aggravating and mitigating circumstances of the offence. I have not been persuaded that his Honour erred in the exercise of his sentencing discretion.

37 Apart from the sentence imposed for the offence of attempting to pervert the course of justice, no criticism was levelled at the individual sentences imposed on counts 1, 2 and 3. Counsel for the appellant conceded that the terms of imprisonment imposed on those counts were well within the appropriate range.

38 At the hearing of the appeal, the appellant's submission on totality came down to a submission that the 2-year term of imprisonment imposed for attempting to pervert the course of justice should have been partly concurrent and not wholly cumulative.

39 In my opinion, his Honour was correct to impose a wholly cumulative sentence for attempting to pervert the course of justice. The offending was not part of one transaction, but rather offending which was separated in nature and time from the drug offending. It was committed while the appellant was on bail for those offences.

40 In my opinion, the overall sentence of 6 1/2 years was not disproportionate to the total criminality engaged in by the appellant.

42 Neither of the appellant's grounds of appeal have, in my opinion, a reasonable prospect of succeeding.

1. Leave to appeal is refused on both grounds of appeal.
2. The appeal is dismissed.