Court of Appeal (WA)|2001-11-30|Before: Ms J, Einfeld AJ, Wallwork J, Anderson J

Cooper v The Queen [2001] WASCA 379 (30 November 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : COOPER -v- THE QUEEN [2001] WASCA 379

Criminal law - Appeal against sentence - Pleas of guilty - Three counts of possession of a prohibited drug with intent to sell or supply - Methylamphetamine and heroin - Bail as an aggravating circumstance - Whether total sentence of 8 years' imprisonment with eligibility for parole is excessive - Sole caregiver of child - Applicant correctly characterised as a middle range drug dealer - Totality principle - Sentence not outside discretion

Atholwood v The Queen [2000] WASCA 76

Cameron v The Queen [2000] WASCA 286

Chick v The Queen [2000] WASCA 231

Doherty v The Queen, CCA SCt of WA; Library No 970518B; 14 October 1997

Jarvis v The Queen (1993) 20 WAR 201

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Miller v The Queen [1999] WASCA 66

Nguyen v The Queen [2001] WASCA 119

R v Dao, unreported; CCA SCt of WA; Library No 990015; 22 January 1999

R v Votano [2000] WASCA 144

R v Weston [2000] WASCA 389

Thurling v The Queen [2000] WASCA 271

Watt v The Queen [2000] WASCA 354

1 WALLWORK J: I agree with the reasons for judgment of Einfeld AJ and to the order proposed by his Honour.

2 ANDERSON J: I have had the advantage of reading in draft form the judgment of Einfeld AJ. I entirely agree with it and there is nothing which I can usefully add. I agree that leave to appeal should be refused.

3 EINFELD AJ: This is an application for leave to appeal against a sentence of 8 years' imprisonment with eligibility for parole imposed on the applicant by the District Court (Chief Judge Hammond) on 9 March 2000 following the applicant's conviction on his plea of guilty to three counts on indictment of possessing a quantity of a prohibited drug with intent to sell or supply it to another.

4 The ground of appeal is that the sentence imposed was excessive and that the learned sentencing Judge:

"(a) failed to give any or sufficient weight to the personal antecedents of the applicant particularly to the probable effect of the sentence on the applicant's young child.

(b) erred in finding that the applicant was a middle range drug dealer when there was no evidence of drug sales.

(c) erred in not giving sufficient weight to the totality principle in reaching the sentence that was just and appropriate."

5 The thrust of the submissions on behalf of the applicant under (a) is that the applicant has a young child to whom he was the sole caregiver for a period of one year prior to his incarceration for these offences.

7 On 3 August 2000 at about 2.35 am the applicant was stopped by detectives whilst travelling south on the Kwinana Freeway at the Berrigan Drive intersection, Jandakot. The detectives conducted a videotaped search of the applicant and his vehicle during which the applicant advised them that he had a quantity of drugs in his right shirt pocket. In the pocket detectives found three packages wrapped in black electrical tape containing approximately 78.97 grams of methylamphetamine with a

purity between 12 and 20 per cent. Also in the applicant's pocket was another packet wrapped in black plastic containing 5.63 grams of heroin with a purity of 49 per cent.

8 The applicant declined to make any comment about these matters during an interview conducted at the offices of the Organised Crime Investigation Unit which was videotaped, and he was later charged with two offences of possession of a prohibited drug.

9 Then on 4 October 2000 police executed a search warrant issued under the provisions of the Misuse of Drugs Act at the applicant's residence in Withers. Upon their entering the premises the applicant ran to a rear bedroom where he was apprehended. Two packets fell from his clothing, each again wrapped in black electrical tape. One of these packets contained three small plastic bags of white powder weighing respectively 2.4, 3.4 and 0.6 grams, and a further bag with traces of white powder. The other packet contained two plastic bags of white powder weighing 15.4 and 23.9 grams respectively. The total weight of all the powder, found to be methylamphetamine, was 45.7 grams. He had $790 in his pocket. He was subsequently charged with a third offence of possession, this one committed whilst he was on bail for the earlier offences committed on 3 August 2000.

10 The applicant's sentence by the learned Chief Judge consisted of two concurrent terms of 3 and a half years for the first two offences, and 4 and a half years for the third to be served cumulatively upon the other terms.

11 His Honour was asked to take into account also a number of offences on a s 32 notice that arose out of the search on 4 October 2000. Under the procedural provisions of the Sentencing Act the applicant was found guilty of five offences relating to stolen property, ammunition and a small quantity of cannabis which were found at the applicant's premises. Although all these offences were also committed while he was on bail for the previous offences, the sentences imposed for these matters were made concurrent and are not appealed.

12 The applicant was ordered eligible for parole and his sentence was backdated to commence on 4 October 2000.

13 The applicant was aged 42 at the time he committed these offences. He has a 22 year history of crime and other unlawful activities in three states, New South Wales, Queensland and Western Australia, principally for illicit drug use and traffic violations. For one year prior to committing these offences, he was the primary carer of his son now aged four years, before which time the child had been a ward of state. The child has been in foster care since the applicant's incarceration. Family and Children's Services will review the primary care of the child upon the applicant's release from custody.

14 The applicant commenced heroin use at 20 years of age and was addicted for 10 years thereafter. After a 12 year period of abstinence, he commenced amphetamine use in September 1999 and recommenced heroin use in September 2000. He is a confessed cannabis and heroin addict and has been on a methadone program since 1988.

15 The applicant firstly argued that the learned Judge gave insufficient weight to his personal antecedents, particularly the probable effect of the sentence on the applicant's child.

16 It is trite to say that the separation from a loving natural parent will have a significant impact on a child which foster care can never replace. And the deprivation of a child's parental care is a relevant consideration when sentencing an offender and the rights of children in this respect need to be protected: Nguyen v The Queen [2001] WASCA 72 at par 71 per Wallwork J; Stewart (1994) 72 A Crim R 17 at 19 per Franklyn J. However, when sentencing an offender for serious drug-related crimes there are many factors requiring consideration. As explained by Anderson J in Burns (1994) 71 A Crim R 450 at 455 (and quoted in R v Jeffree, unreported; CCA SCt of WA; Library No 980150; 6 April 1998 at 15):

"Plainly, the personal circumstances of the applicant and her dependants does not, and could not, diminish the seriousness of the crime itself. It seems to me that where the crime is of a kind as regards which the predominant sentencing consideration is general deterrence, the circumstances of the dependents must be truly exceptional before compassion for them can have any worthwhile effect on sentence. I would add the further comment that it seems to me that it is a consideration that would operate anyway with less force in a case where an extended term of imprisonment is inevitable. Whilst it is a consideration that might frequently operate on a decision whether or not to pass a custodial sentence at all, it would not often persuade the court to make a lengthy sentence somewhat shorter."

17 In H (1995) 81 A Crim R 88, a case where exceptional circumstances were found to exist, Murray J expressed this view:

"It is right then that only in an exceptional case, quite out of the ordinary, should the hardship which a proper sentencing disposition will occasion to innocent third parties be allowed to substantially mitigate the court's sentencing disposition."

18 Applying these principles in the present case, it must initially be stated that single parenthood these days is not an unusual circumstance. Similarly, to deprive a child of a parent who has been a figure in that child's life for merely a quarter of it does not, in my opinion, amount to an exceptional circumstance warranting an alteration of the sentence.

19 Moreover, allowance must also be made for the principles formulated by Ipp J in Quach v R [1999] WASCA 210 at par 13:

"The prevalence and seriousness of criminal heroin use makes deterrence the principal consideration in sentencing for heroin related offences. The terrible consequences to the community of trafficking in this drug are notorious. Where an offender consciously and deliberately, knowing full well what harm will be done thereby, participates (no matter in what capacity) in the heroin trade for commercial gain, it is ordinarily futile to argue that personal circumstances and antecedents have significant mitigatory force."

20 Counsel for the applicant acknowledged this principle by reiterating that matters personal to an offender do play a secondary role to questions of general deterrence: Malcolm CJ in Darwell v R (1997) 94 A Crim R 35 at 40.

21 It is apparent from the transcript of the sentencing hearing in this case at page 3 that the learned Chief Judge gave consideration to the applicant's personal situation:

"GRIFFIN, MR: ... and I have submitted the letter from the Department of Family and Children's Services...

HAMMOND CJDC: Yes, you have.

GRIFFIN, MR: Yes, which says that Mr Cooper has been cooperative and a good fatherly figure for the boy.

HAMMOND CJDC: Thank you very much Mr Griffin."

22 And later at page 4, the Chief Judge stated for a second time that he had been given a report on the child from Family and Children's Services.

23 When the applicant was arrested following the search on 4 October 2000, 6 grams of cannabis leaf material was found in a plastic bag on the kitchen table and cannabis resin was located in a bedroom drawer. It seems to me relevant to query whether a four-year-old child is in safe and appropriate care of a person, even a natural father, when he has a cannabis and heroin addiction and cannabis is accessible from the kitchen table.

24 In my opinion, the learned sentencing Judge gave sufficient weight to the personal antecedents of the applicant and hence this ground of appeal fails.

25 The applicant submitted that there was no or insufficient evidence to suggest that the applicant was a middle range drug dealer as found by his Honour.

26 Pidgeon J stated in R v Dao, unreported; CCA, SCt of WA; Library No 980619; 29 October 1998, and it was reiterated by Ipp J in Quach v R at par 6, that:

"The learned sentencing Judge rightly observed that the sale of illegal drugs has become a major problem in the community, particularly in relation to the extent to which drug use causes other forms of crimes to be committed ... There are at least three factors which enable [sic] drugs of this type to be available on the streets with persons having easy access to the supply... the first is that there are importers or manufacturers who handle the bulk in large quantity for high profits and make it available for further distribution. There is, in addition, often an intermediary who enables the person at the top not to be exposed to detection and who arranges the division of the bulk so as to be available to those who sell it on the streets. Thirdly, there are those who carry out the final role of obtaining the drug from someone higher in the chain of distribution and then selling it on the streets."

27 This applicant was found in possession of a total of 124.67 grams of methylamphetamine, four times the quantity required to have him declared a drug trafficker and 61 times the presumptive weight of an intention to sell and supply. He was also found with two and half times the presumptive weight of heroin and a quantity of cannabis. The applicant stated that he was addicted to cannabis and heroin. These facts, including that he was on bail when the third and s 32 offences were discovered, coupled with the money, ammunition and stolen property itself found during the search, the learned sentencing Judge was entitled to conclude that the applicant's drug habit went beyond mere personal use. In my opinion, his Honour's finding that the applicant is a street dealer of middle range was well open to him on the evidence and was not erroneous. This ground of appeal also fails.

28 The totality principle was stated by D A Thomas in "Principles of Sentencing" 2nd ed, 1979 at 56:

"When a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong."

29 At 57 - 58 the learned author suggested that a cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects.

30 The effect of this principle, then, is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate": Smith [1972] Crim L R 124.

31 It is necessary to look at the sum of the sentences and to determine whether it is excessive for the criminality of the conduct involved: Ugle v Wells [1999] WASCA 21; (1999) 106 A Crim R 452 at 457. Offences under s 6(1)(a) of the Misuse of Drugs Act attract, under s 34(1)(a), a maximum punishment of a $100,000 fine or 25 years' imprisonment or both.

32 The concurrent sentence imposed by his Honour accords with the "one transaction rule" enunciated by D A Thomas in "Principles of Sentencing" 2nd ed 1979 at 53, and restated by Forster CJ in Brown (1982) 5 A Crim R 404:

"Where two or more offences are committed in the source of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive."

33 His Honour also reduced the concurrent sentences from 5 years to 3 and a half years' imprisonment in recognition of the applicant's plea of guilty on the fast-track system.

34 The learned Chief Judge also took into consideration the fact that the applicant was on bail for the earlier offences when he committed the third offence. Bail can have an aggravating effect when offences are committed of the same category as those for which the offender is already on bail. In Pop v The Queen [2000] WASCA 283, McKechnie J said at par 87:

"Implicit in many judgements in this court is a recognition of the fact that an offence committed while on bail is a relevant factor to be taken into account by a sentencing judge and will aggravate the commission of the offence... In my view this principle should now be made explicit for Western Australia, essentially for the reasons advanced by Chernov J in Basso and Frazzetto [1999] VSCA 201; (1999) 108 A Crim R 392 at 397 to 398 "

35 Although it is in the sentencing Judge's discretion as to how much weight should be given to this aspect of the factual matrix, it seems to me that where the offence committed on bail is in reality a continuation of the criminal conduct embraced in the earlier charges and arose from a completely separate and discrete set of facts from those relating to other two charges, as in Pop, this consideration will have significant aggravating weight. In my view, his Honour was correct in imposing a cumulative sentence.

36 The sentencing Judge reduced the term for the third offence to four and half years because of the applicant's guilty plea on the fast-track system. In fact, it must be said generally that the applicant received substantial discounts for his fast track pleas. An admission of guilt at an early stage of proceedings saves the court time and expense and reduces the impact on any victims. As a result, it will normally earn a substantial discount from the sentence that would otherwise be imposed. Recent decisions have indicated that reduction should be in the order of 25 per cent: Little v The Queen [2001] WASCA 87; McKeagg v The Queen [2001] WASCA 99. This applicant received discounts closer to 30 per cent which may be considered generous given the circumstances in which the applicant was found in possession of the prohibited drugs.

37 Appropriate ranges for sentences resulting from offences of this kind are never easy to fix as there are so many variables. One important matter is the quantity, purity and the value of the drug at any given time: Quach at par 14. In R v Cottrell (1989) 42 A Crim R 31, the respondent pleaded guilty to two charges of importing and being in possession of 123.4 grams of heroin with a purity of 73 per cent. On the Crown's appeal, a sentence of 8 years was imposed. Pidgeon J (at 36) referred to several cases where sentences for similar offences had been imposed and concluded that:

"These cases suggest to me that the range for possessing heroin of the quantity and potential value of that imported by the respondent is between 7 and 10 years."

38 In Quach at par 15 Ipp J stated that Cottrell has long been regarded in this State as having established some kind of benchmark in sentencing for heroin offences involving couriers.

39 In a similar case, Gagliardi v R [1999] WASCA 126, the applicant was found guilty of possession of 61.6 grams of heroin with a purity of between 57 and 75 per cent. The applicant was also found guilty of two counts of possessing amounts of money and one of disposing of money reasonably suspected of being proceeds of crime. The sentencing Judge imposed an effective term of imprisonment of 8 years for all the offences.

40 In Darwell at 40 Malcolm CJ said that, taking into account the increasing prevalence of the use of amphetamines generally including methylamphetamine, the courts have tended to firm up the sentences for the sale or supply of such drugs or their possession with intent to sell or supply. The Chief Justice noted:

"...methylamphetamine is now regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs. If not equated to heroin and cocaine, it is close enough to those drugs to be regarded as in the same category: The Queen v Calder, unreported; DCt of WA; 7 September 1995 (Hammond CJDC); Bellissimo v The Queen, (1996) 84 A Crim R 465"

41 These decisions suggest that the sentences imposed here were not excessive.

42 In Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998, Ipp J said:

"The law recognises the potential for variance of judicial views in sentencing by laying down that, where no error of principle has occurred, the task of appellate courts sitting on sentencing appeals is merely to consider whether the sentencing Judge has exceeded the bounds of an appropriate sentencing discretion, not whether they would have imposed the sentence in fact ordered by the sentencing judge. There is, therefore, an acknowledgment that a difference in judicial opinion in sentencing may arise, but as long as the sentence imposed has been arrived at after a correct application of the sentencing principles, and the sentence is within an appropriate sentencing range, the sentence will not be set aside."

43 I am not persuaded that the sentence imposed by the learned Chief Judge was excessive. It does not exceed the range of an appropriate sentencing discretion so as to manifest error. In particular I treat the fact that one possession offence and the s 32 offences were committed while the applicant was on bail as an aggravating circumstance. No error of principle has been demonstrated as would justify interference by this court.

44 I propose that leave to appeal the sentence be refused.

Cooper v The Queen [2001] WASCA 379

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Judgment (75 paragraphs)

Cooper v The Queen [2001] WASCA 379 (30 November 2001)

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