Darwell v The Queen (1997) 94 A Crim R 35

De Luce v The Queen, unreported; CCA SCt of WA; Library No 960643A-C; 8 November 1996

Legeng v The Queen, unreported; CCA SCt of WA; Library No 950391A; 8 April 1995

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

Miles v The Queen (1997) 17 WAR 518

Miller v The Queen [1999] WASCA 66

Nevermann v The Queen (1989) 43 A Crim R 347

R v Bellissimo (1996) 84 A Crim R 465

R v Voltano [2000] WASCA 144

Verschuren v The Queen (1995) 17 WAR 467

1 MALCOLM CJ: In my opinion, leave to appeal should be granted, the appeal allowed to the extent of quashing the sentence imposed in respect of count 1 on the indictment and substituting a sentence of imprisonment for 2-1/2 years, quashing the sentence imposed in respect of count 2 and imposing a sentence of imprisonment for 2-1/2 years to be served cumulatively upon the sentence in respect of count 1. That will produce an aggregate sentence of imprisonment for 5 years commencing on 18 March 2000. The other sentences imposed by the learned Judge with respect to the matters the subject of the s 32 notice and the sentence for breach of the Intensive Supervision Order will all stand, but will be ordered to be served concurrently with the sentence imposed in respect of count 1 on the indictment. The result is that the applicant is sentenced to an aggregate head sentence of imprisonment for 5 years from 18 March 2000. There will be an order for eligibility for parole in respect of each of the sentences imposed.

2 STEYTLER J: I have had the advantage of reading the reasons for decision of Stein AJ. I agree with his Honour's conclusion and have nothing further to add.

3 STEIN AJ: This is an application for leave to appeal against an aggregate sentence of 8 years' imprisonment imposed on the applicant by the District Court. At the conclusion of the hearing in the Court of Criminal Appeal, the Court granted the applicant leave to appeal and reserved its judgment on the appeal.

4 On 12 April 2000 the applicant pleaded guilty to a number of offences, mostly under the Misuse of Drugs Act 1981, on 12 April 2000 and was sentenced by Viol DCJ on 28 April 2000 as follows:

1. Possession of methylamphetamine on 18 May 1999 with intent to sell or supply, 11.03 grams of between 0.6 per cent and 30 per cent purity, (s 6(1)(a) Misuse of Drugs Act): 3 years' imprisonment with eligibility for parole.

2. Possession of heroin on 18 May 1999 with intent to sell or supply, 4.88 grams of 50 per cent purity, (s 6(1)(a)): 3 years' imprisonment with eligibility for parole to be

served cumulatively upon the sentence imposed for count 1.

Section 32 Notice

1. Sale of diazepam on 18 May 1999 contrary to s 32(c) of the Poisons Act 1964: 1 year imprisonment (91 tablets).

2. Sale of temazepam on 18 May 1999 contrary to s 32(c) of the Poisons Act: 1 year imprisonment (11 tablets).

3. Possession of cannabis on 18 May 1999 (0.8 grams): 3 months' imprisonment.

4. Possession of a smoking implement on 18 May 1999: 3 months' imprisonment.

5. Possession of cannabis with intent on 5 July 1999 (10 grams): 2 year's imprisonment.

6. Possession of amphetamine on 5 July 1999 (1 gram): 2 years' imprisonment.

7. Possession of a drug implement on 5 July 1999: 3 months' imprisonment.

8. Possession of heroin on 5 July 1999 (1 gram): 6 months' imprisonment.

5 The applicant was further sentenced to 2 years' imprisonment for breach of an Intensive Supervision Order imposed on her on 24 March 1999. This sentence was ordered to be served concurrently with the matters on the s 32 notice. All of the sentences on the s 32 notice were ordered to be served concurrently with the terms of imprisonment imposed in respect of the indictable matters except number 5 above - possession of cannabis with intent - which sentence of 2 years' imprisonment was to be served cumulatively.

6 The total effective sentence was therefore 8 years' imprisonment, with eligibility for parole, backdated to 18 March 2000 when the applicant had been taken into custody.

7 1. The learned Judge erred in failing to take into account, or adequately into account, the applicant's pleas of guilty to the offences, and

8 2. (by leave granted by the Court in substitution for the existing ground) the learned Judge erred in law in imposing cumulative sentences totalling an aggregate of 8 years' imprisonment and failing to have any or any proper regard to the principle of totality.

9 Counsel for the applicant orally particularised ground 2 to the Court. No objection to the amendment was taken by the respondent.

10 In order to understand the grounds of appeal, I set forth below his Honour's reasons given on sentence. They are quite brief. His Honour said:

"On 12 April this year you pleaded guilty to two serious offences. The first was possession of amphetamines with intent to sell or supply the same, said to have occurred on 18 May 1999, and possession of heroin with intent to sell or supply, said to have occurred on the same date. There were a number of other matters to which you pleaded guilty under a section 32 notice. These did occur on 18 May 1999. You sold a poison diazepam. Additionally you sold another poison temazepam. You were in possession of cannabis and you were in possession of a smoking implement.

On 5 July 1999 these offences occurred: you were in possession of cannabis with intent to sell or supply the same; you were in possession of amphetamines; you were in possession of drug implements; and you were in possession of heroin. The facts as advised to me by the crown prosecutor showed two things clearly. You were a dealer of prohibited and dangerous drugs and a user of them.

Having heard from your counsel, several other matters also became clear. Despite a number of people in your family being involved in drugs, including a cousin that died from a heroin overdose, you were a dealer in drugs and have been over several years and you were prepared to sell and/or supply dangerous drugs to your own family and to young people. The available evidence makes it clear that because of your own addiction the need for money and the obvious ease with which you were prepared and able to distribute these terrible substances you were an important link in the chain of sale or supply of these drugs.

A severe gaol sentence is indicated. There must be a considerable degree of deterrence in such sentence. The community must see that the courts are taking this trade seriously especially when people like you do not take advantage of leniency on the part of the courts in the past."

11 His Honour proceeded to make the orders for imprisonment set out above.

12 The applicant entered early pleas of guilty to all charges under the fast-track system. Section 8(2) of the Sentencing Act 1995 provides that a plea of guilty is a mitigatory factor and the earlier in proceedings that it is made, the greater the mitigation. Section 8(4) provides that if a court reduces a sentence because of a mitigatory factor, the court must state that fact in open court.

13 In Trescuri v The Queen [1999] WASCA 172 at [25] Anderson J said that a plea of guilty at the first available opportunity was a powerful mitigatory factor in the case. He noted that sentencing discounts for pleas of guilty under the fast-track system range from 20 to 35 per cent and are commonly around 30 per cent.

14 The sentencing Judge was well aware of the applicant's plea of guilty as his opening remarks on sentence indicate. Thereafter, however, no mention was made of the timing of the plea (s 8(2)); the remorse or contrition inherent in the plea; the utilitarian value of the plea or whether any discount was given for the mitigating factor of the plea (s 8(4)).

15 His Honour was not, of course, obliged to quantify the extent of the discount for the early plea but making no remark whatever about the matter makes the task of the Court of Criminal Appeal more difficult. It may well be that his Honour, being cognisant that he was dealing with the applicant on her pleas of guilty, took the pleas into account and gave them weight. However, in the absence of reasons, it is difficult to know. In itself, this underlines the need for reasons to be given.

16 What may be concluded is that from an examination of the facts as known to the Court and the length of the sentences imposed, in particular the aggregate sentence of 8 years, it is not apparent what, if any, discount was made by his Honour.

17 The following facts have been gleaned from the address of counsel for the crown on 12 April 2000. After reciting that the matter came to the court via the fast-track procedure, she said:

"During the morning of Tuesday, 18 May 1999, police executed a Misuse of Drugs Act search warrant at room 44 of the Red Castle Motel, Lathlain, where the offender has resided for the previous two nights with another female.

Police located bags containing a total of 4.88 grams of heroin of 50 per cent purity and bags containing a total of 11.03 grams of methylamphetamine of between 0.6 and 30 per cent purity. Police also located a Nokia mobile telephone, weighing scales, small plastic deal bags and documentation detailing drug transactions which had taken place over the two nights and on previous occasions in the preceding months. The offender was arrested and her home address searched where further documentary evidence supporting the supply of narcotics was located.

The offender was interviewed and admitted possession of the heroin and methylamphetamine with the intention of selling or supply [sic] it to others.

...

Turning to the section 32 notice, items 1 to 4; during the search of the hotel room on the morning of 18 May 1999, the police also located 0.8 grams of cannabis leaf, one jar containing 11 temazepam tablets, two jars containing a total of 91 diazepam tablets and a smoking implement. When the offender was interviewed, she admitted possessing the temazepam and diazepam with the intention of selling or suppling [sic] it to others.

She said that she had the tablets to give the kids on the naltrexone program. She said that she had given them to some children on the program recently. She said that the cannabis was for her own use. She admitted possession of the smoking implement and stated it was for use in connection with the smoking of cannabis.

...

Item 7 and 8; at about 2.30 am in the morning, Monday, 5 July 1999, the offender was a passenger in a vehicle travelling along Wellington Street, Perth. The vehicle was stopped by police and the driver was arrested in relation to other matters. The offender's handbag was searched and police located a small clear plastic bag containing approximately 1 gram of amphetamine. When questioned by police, she stated that the drug belonged to her and was for her own personal use.

Within the same compartment of the offender's handbag police located six more clear plastic bags containing a total of approximately 1 gram of heroin. The offender denied knowledge and ownership of the heroin.

...

Items 5 and 6; at 8 am on Monday, 5 July 1999, police executed a search warrant at the offender's home. A police drug dog was used to assist and search in the premises which subsequently located a plastic sandwich bag containing 10 grams of cannabis separated into ten small plastic sachets hidden under a lounge cushion in the offender's bedroom. During the search police also seized a black ceramic smoking utensil from a lounge room cupboard and a plastic smoking utensil from under the kitchen sink.

The offender was conveyed to the 79 division office where she participated in a video interview. When interviewed, she admitted buying the cannabis the previous evening for $160 and packing it into the ten plastic sachets. She further admitted her intention to supply her brother with some of the cannabis and sell some to friends. When questioned regarding the utensils, she admitted owning both utensils and to having used them to smoke cannabis. It was also her intention to use them both in the future."

18 Further, the Court was informed that the applicant had breached an Intensive Supervision Order (imposed on 24 March 1999) by the supply of 0.5 grams of amphetamine packed in three small deal bags. The date of this breach is unclear from an examination of the appeal book.

19 The applicant has a record for drug offences, but no other criminal record. She was fined $200 in 1994 for possessing a prohibited drug; $200 in 1997 for possessing amphetamine and also cannabis; $250 in 1998 for the same offences and, as mentioned earlier, in 1999 she was placed on an Intensive Supervision Order for 2 years with 100 hours' community work with respect to an offence of possession of amphetamine with intent.

20 The antecedent report provides some sparse details of the applicant. She was born in Burma on 22 September 1954 and came to Australia in 1971. She was therefore aged almost 46 years at the time of her sentence. She has four brothers and two sisters and is the second eldest in the family. The applicant left school at 14 years, has a son aged 20 years and was unemployed at the time of her arrest. She had been in regular employment from 1992 to 1996.

21 Her counsel, however, provided the sentencing Judge with more information about the applicant. She was an addict and her family had been ravaged by drugs. Two of her brothers had serious amphetamine problems. Her son had had a serious heroin problem. There were deaths in the family due to drugs. A cousin was mentioned. Her brothers put pressure on her to supply them with amphetamines, which she did on a regular basis without charge. The relatively modest profits she made from drugs were used for her own addiction and that of her brothers. There was, it was submitted, no real commercial profit in the ordinary sense.

22 The applicant's residence had become somewhat of a half-way house for friends who were using heroin. The applicant claimed to have been pressuring them to wean themselves off heroin and the diazepam and temazepam tablets were to try to alleviate their withdrawal symptoms in the hope that they could enter a naltrexone programme.

23 The applicant's own addiction was to amphetamines and she was also a cannabis user. She came from a broken family, her father being an alcoholic and her mother often absent. The applicant claimed to have been sexually abused at the age of 13 years. She was in regular employment during the 1970s and 1980s but had a significant amphetamine problem in the 1990s. While she managed, with the help from her family doctor, to wean herself off amphetamines, various pressures, particularly with her son, meant that she slipped back into the use of amphetamines and committed the offences to which she pleaded guilty. Her counsel stated that the applicant had, since she had been in prison for three weeks, her first time in gaol, formed a genuine desire to rid herself of drugs. Counsel submitted that because of the large number of offences, the "totality [principle] will be an important consideration".

24 Counsel submitted to the District Court that the applicant was a relatively small-scale street supplier dealing with family members and a small circle of associates, who were addicts, and to support her own addiction. None of this was disputed by the crown although its counsel stressed the serious nature of the offences.

25 His Honour then adjourned the sentencing for 16 days to 28 April 2000 so he could give consideration to the matter. As indicated earlier, on 28 April his Honour proceeded to sentence the applicant.

26 In my view, the circumstances are such that if his Honour gave some discount for the entering of an early plea of guilty, it was an inadequate discount. Indeed, Mr Bates, counsel for the respondent, concedes that there was error by the learned Judge in not stating the discount for the plea of guilty in mitigation. He further concedes that the aggregate head sentence of 8 years' imprisonment was excessive when one examines the total criminality involved.

27 This must be correct. A proper exercise of sentencing discretion called for a discount of at least 25 per cent. It is not apparent what, if any, discount the applicant received, because of the absence of reasons. However, to the extent that the applicant may have received some discount for her plea of guilty, it was clearly an inadequate one. This is demonstrably so when one matches the facts surrounding the total criminality involved in the offences with the aggregate sentence of 8 years' imprisonment. This is not to detract from the very serious nature of the offences, especially those on the indictment. Counsel for the applicant accepts the serious nature of the offences and accepts that a significant term of imprisonment was warranted.

28 As I have recounted, his Honour accumulated the 3-year sentences on each of the counts in the indictment. That meant a total of 6 years' imprisonment. His Honour then accumulated a further 2 years' imprisonment on the fifth charge in the s 32 notice, possession of cannabis with intent (10 grams). This made for an aggregate head sentence of 8 years. Just why his Honour picked count 5 is somewhat of a mystery. It certainly is a lengthy sentence for possession of 10 grams of cannabis with intent to supply. It is possible that his Honour selected one of the eight offences randomly. The other charges on the s 32 notice and the breach of the Intensive Supervision Order, were ordered to be served concurrently with each other and with the terms of imprisonment imposed on the indictment.

29 This is clearly a case where the totality principle comes into play. The offender was being sentenced to a series of offences. In Mill v The Queen (1988) 166 CLR 59 63 the High Court said that an appropriate result may be achieved by making the sentences wholly or partly concurrent or by lowering the individual sentence below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. The former course was to be preferred where practicable. The totality principle requires the sentencing Judge to review the aggregate sentence and consider whether it is "just and appropriate". The totality of the criminal behaviour must be looked at and the Court must ask itself, what is the appropriate sentence for all the offences? See also Jarvis v The Queen (1993) 20 WAR 201 applying Mill.

30 Here there is a multiplicity of offences and the totality of the sentence must be proportionate to the totality of the criminal behaviour. The crown concedes that the aggregate term of 8 years imposed by the District Court was disproportionate to the gravity of the total criminality involved in the offences. In my opinion, an analysis of the facts as known to the court leads inexorably to that conclusion. The sentencing discretion of the learned trial Judge miscarried. The sentences imposed must accordingly be set aside and this Court must resentence the applicant.

31 In my view, having regard to the serious nature of the offences on the indictment, and giving proper credit for the entry of pleas of guilty at an early time, an aggregate sentence of 5 years' imprisonment is appropriate. This can best be achieved by the imposition of a sentence of 2-1/2 years' imprisonment with respect to the first count on the indictment and a like term of imprisonment with respect to the second count on the indictment, that to be served cumulatively upon the sentence for count 1. That is, an aggregate sentence of 5 years' imprisonment commencing on 18 March 2000 with eligibility for parole. The other sentences imposed by his Honour with respect to the matters in the s 32 notice may be left intact, as also the sentence for breach of the Intensive Supervision Order, except that they are all to be served concurrently with the sentence of 2-1/2 years' imprisonment on the first count in the indictment. The sentences imposed by his Honour in respect of counts 1 and 2 on the indictment are accordingly set aside, as is the accumulation of the sentence with respect to count 5 on the s 32 notice.

32 The result is that the applicant is sentenced to an aggregate head sentence of 5 years' imprisonment from 18 March 2000 with eligibility for parole.