Gasteau v R [1999] WASCA 153

Misuse of Drugs Act 1981, s 6(1)(a)

Appeal against sentence of 8 years' imprisonment for possession of heroin with intent to sell or supply dismissed, concurrent sentence for possession of cocaine with intent to sell or supply reduced from 8 years' to 6 years' imprisonment

Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Bellissimo v R (1996) 84 A Crim R 465

Darwell v R (1997) 94 A Crim R 35

Duffy v The Queen (1996) 85 A Crim R 456

Dunn v The Queen (1986) 32 A Crim R 203

Hayes v R [1981] WAR 252

Haysdale Nominees v Shepherd (1998) 98 A Crim R 435

House v The King [1936] HCA 40; (1936) 55 CLR 499

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

Lam v R, unreported; CCA SCt of WA; Library No 960492; 5 August 1996

Miller v R [1999] WASCA 66

Parsons v The Queen (1993) 66 A Crim R 550

Pearce v The Queen [1998] HCA 57; (1998) 156 ALR 684

R v Anderson [1981] VicRp 17; [1981] VR 155

R v Calder, unreported; District Ct of WA (Hammond CJ); Library No 4612; 7 September 1995

R v Cartwright [1989] NSWLR 243

R v Cottrell (1989) 42 A Crim R 31

R v Halliday, unreported; CCA SCt of WA; Library No 980143; 3 April 1998

R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998

R v McMahon (1988) 40 A Crim R 95

R v Nagy [1992] VicRp 45; [1992] 1 VR 637

R v Roadley (1990) 51 A Crim R 336

R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398

Symonds v R, unreported; CCA SCt of WA; Library No 980616; 28 October 1998

Weng Keong Chan v The Queen (1989) 38 A Crim R 337

1 ANDERSON J: I have had the advantage of reading in draft form the reasons for judgment of White J, and I agree with them and with the orders proposed.

2 WHITE J: This is an application for leave to appeal against sentence. The applicant pleaded guilty and was convicted on 10 March 1999 of one count of possession of heroin with intent to sell or supply and one count of possession of cocaine with intent to sell or supply. These were indictable offences under s 6(1)(a) of the Misuse of Drugs Act the maximum penalty for which was a fine of $100,000 and 25 years' imprisonment. On 16 March 1999, the applicant was sentenced to 8 years' imprisonment on each count, to be served concurrently and he was made eligible for parole.

3 The quantity of heroin involved was 694.8 grams (comprising one packet of 348.9 grams of a purity of 75 per cent and one packet of 345.9 grams of a purity of 63 per cent) and the quantity of cocaine was 142 grams of a purity of 52 per cent.

4 The applicant wishes to appeal against the sentences imposed, on the following grounds:

"1. The learned sentencing judge erred in the exercise of his discretion by failing to give sufficient weight to the following factors, and thereby imposed a sentence that was manifestly excessive:-

1.1 The applicant's cooperation with prosecution authorities.

1.3 The applicant's belief that he was in possession of:-

1.3.2 A lesser quantity than that which he actually carried.

2. The learned sentencing judge erred in the exercise of his discretion by failing to give any or sufficient weight to the psychiatric illness suffered by the applicant and thereby imposed a sentence that was manifestly excessive in the circumstances."

5 The applicant was permitted to amend the proposed grounds of appeal to add the following:

"3. The learned sentencing judge erred in failing to give adequate reasons for the sentences imposed.

3.1 His Honour failed to state the starting point for the sentence which would have been appropriate absent the mitigating circumstances relating to the Applicant.

3.2 His Honour failed to articulate the specific discounts for the various mitigating factors, namely:-

(b) The Applicant's co-operation with the authorities.

(c) The psychiatric illness suffered by the Applicant.

4. The learned sentencing judge erred by imposing a term of 8 years imprisonment with respect to Count 4 on the Indictment (possession of 142 grams of cocaine with intent to sell or supply) which sentence was manifestly excessive in all the circumstances of the case."

6 The learned sentencing Judge began his sentencing remarks by describing the circumstances of the applicant's arrest. His Honour said:

"... you are before this court to be dealt with in respect of the offences of possessing heroin with the intent to sell or supply to another and possessing cocaine with the same intent. These offences were committed by you on 27 October last year when you were apprehended, having just got off a flight from Sydney. You were searched at the airport by police officers and found to be in possession of two packets of heroin and one packet of cocaine.

The heroin packets contained 348.9 grams and 345.9 grams of heroin respectively. The purity of the heroin was 75 per cent in one case and 63 per cent in the other. The cocaine packet was 52 per cent pure and weighed 142 grams. I have been told that the total value of the drugs which were found on you was $360,000.

You were interviewed by police officers. You at first denied any wrongdoing. You later admitted these offences, making it clear in the course of your interview with the officers that you were a courier and that you were to be paid 2 and a half thousand dollars for dropping off these drugs in Perth. You said, and you have said by your counsel since, that you thought that the drugs were in fact amphetamines and not heroin."

7 His Honour went on to refer to the fact that the applicant had no criminal record of any significance and to the pre-sentence report and the psychiatric reports, which set out, inter alia, the applicant's background and circumstances.

8 His Honour then said that a number of matters had been put in the applicant's favour and that he should mention some of them. His Honour accepted that the applicant was entitled to credit for the early plea of guilty but pointed out that the applicant had been apprehended red-handed and so had little real alternative to pleading guilty. Nonetheless, his Honour felt that the early plea of guilty reflected some degree of remorse on the part of the applicant and that he would get credit for that. His Honour then mentioned the good character references, which had been forwarded, and the fact that the applicant was a devoted father who had been at pains to promote and maintain a relationship with his son, notwithstanding the strains on his marriage.

9 His Honour expressly took into account that the applicant had had a troubled childhood and a troubled marriage and that he had suffered a significant depressive illness, albeit his Honour expressed the view that:

"At the end of the day it seems to me that you clearly knew what you were doing. You embarked deliberately upon a course of conduct for nothing other than commercial gain. It is not said on your behalf that you should be regarded as less culpable than you might otherwise have been by reason of your psychiatric condition and, in all those circumstances, I do not think that your depressive illness can count for much in your favour."

10 The value of the character references is considerably diminished by the fact that, as was admitted by him to the investigating officers and on his behalf by his counsel in addressing the learned sentencing judge, this was the third time that the applicant had carried drugs to Perth. On his own admission, therefore, the applicant could hardly have expected to be treated as a first offender, despite the absence of prior convictions for the offence.

11 In Mussarri v R, unreported; CCA SCt of WA; Library No 980662; 17 November 1998, I said:

"While a comparison of sentences passed in disparate cases is not of great utility, as circumstances differ from case to case, it may be that the sentences passed in the following cases at least indicate the general range of sentences in respect of offences against s 6 of the Misuse of Drugs Act 1981:

(1) In Bellissimo v R**,** unreported; CCA SCt of WA; Library No 4914; 23 May 1983 the appellant had been convicted of three counts of selling heroin and one count of possession with intent to sell or supply and the aggregate sentence of 10 years imposed was not disturbed on appeal;

(2) In La Rosa v R, unreported; CCA SCt of WA; Library No 960628; 31 October 1996 the appellant had been convicted of one count of possessing a quantity of heroin in excess of the trafficable quantity, one count of attempting to possess such a quantity of heroin and one count of knowingly being concerned in the importation of such a quantity of heroin, those charges being preferred by the Commonwealth Director of Public Prosecutions and also of one count of possessing heroin with intent to sell or supply, one count of possessing amphetamine with intent to sell or supply and one count of possessing cocaine with intent to sell or supply. He had pleaded guilty and was sentenced to a total of 12 years and 4 and one half months. That sentence was not disturbed on appeal;

(3) In Lam v R, unreported; CCA SCt of WA; Library No 960492; 5 August 1996, the applicant had been convicted on one count of possession of heroin with intent to sell or supply and he was sentenced to imprisonment for 8 years, which sentence was not disturbed on appeal.

The offences were very serious indeed. The maximum penalty for each contravention of s 6(1) of the Misuse of Drugs Act 1981 is imprisonment for 25 years. In the present case, the learned sentencing Judge was dealing with 6 such offences, committed over a period in excess of 17 months, extending from 30 August 1995 to 21 March 1997. In the case of such offences, deterrence forms an important part of the sentencing process."

12 As to ground 2, there is no evidence which could establish that the depressive illness from which the applicant is said to have suffered was such as to reduce his culpability for the very serious offences with which he is charged and, in my opinion, this ground fails.

13 In relation to the third ground of appeal, it is true that the learned sentencing judge did not state the starting point adopted by him for the assessment of the sentence imposed. While it is helpful where that is done, it is not an obligation and it is clear from the careful reasons expressed by his Honour that he did take into account and give credit for all relevant mitigatory matters. In Verschuren v The Queen (1996) 17 WAR 467 at 474, Malcolm CJ said:

"In my opinion, however, recognising that it is a matter for discretion of the individual judge, it is clearly desirable that the discount be quantified wherever it is practicable to do so."

"5. The courts are becoming more and more aware of the horrific consequences of the drug trade. There is considerable justification for "firming up" sentences for offences involving drug trafficking, particularly where the trafficking is organised and for private gain. In areas such as serious drug offences, personal mitigatory factors have less of a role to play. Consequently, the learned sentencing Judge was not required to give significant weight to factors personal to the Applicant. La Rosa, unreported; CCA SCt of WA; Library No 960628; 31 October 1996 at 14, 16 per Owen J

6. The sentences imposed correctly reflect the seriousness of the offences including the following factors:

* the Applicant was found in possession of 2 packets of heroin and l packet of cocaine [AB 42D];

* 1 heroin packet contained 348.9 grams of heroin of 75% purity and the other contained 345.9 grams of heroin of 63% purity [AB 42E];

* the cocaine packet contained 142 grams of cocaine of 52% purity [AB 42E];

* the total value of the drugs was $260,000 [AB 42E];

* the Applicant's motive for committing these offences relating to significant quantities of drugs was purely commercial [AB 46B];

* although the Applicant does not have a significant criminal record he admitted transporting drugs to Perth from Sydney on 2 prior occasions [AB 16];

* this offence consequently demonstrated the Applicant's continuing involvement in the drug trade.

7. An offender who co-operates with the authorities deserves to have that fact recognised by an appropriate reduction in the sentence. However, there is no tariff for assistance because each case depends upon its own facts and upon the value and genuineness of the assistance provided. It is generally for the learned sentencing Judge to assess the credit to be given for the co-operation.

Duffy (1996) 85 A Crim R 456 at 457 per Kennedy J

8. A person is not an informer in the true sense of the word unless they are used by the police as an undercover agent and are exposed to the risk and difficulties which are referred to as giving rise to the need for discount penalties to be imposed upon informers.

McMahon (1988) 40 A Crim R 95 per Crockett J at 98, at 100 per O'Bryan J (with whom Gobbo J agreed)

9. The learned sentencing Judge recognised that the Applicant offered to assist the authorities by giving them the name of his supplier and by making an offer to the police officers at the airport to assist them in apprehending persons who were going to pick up the drug from him. He received a benefit in that respect. The extent of that benefit was a question for the discretion of the learned sentencing Judge."

15 In my opinion, it is clear from the reasons given and the nature of the sentence imposed that the learned sentencing judge acted within the range of a sound sentencing discretion.

17 As to the fourth ground of appeal, the quantity of the drug involved was less than that referred to in the first count. In the case of each offence, a substantial and significant quantity of an illegal drug was involved. I accept the Crown submission that:

"15. It is not relevant that the Applicant believed that he was carrying amphetamines not heroin. Amphetamines are now regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs and considered in the same category as cocaine and heroin. As a result, this would not have affected the sentence imposed.

Darwell v R (1997) 94 A Crim R 35 per Malcolm CJ at 40.

Bellissimo v R (1996) 84 A Crim R 465 per Rowland J at 469, Anderson J at 471.

16. In any event, the learned sentencing Judge took into account the fact that the Applicant believed he was in possession of amphetamines not heroin. He was aware of the authorities discussing the relevance of the offender's state of mind. There was no evidence that the Applicant would not have carried the drugs had he been aware of their true nature. The learned sentencing Judge did not give insufficient weight to the Applicant's mistaken belief.

18 While the degree of criminality involved in each count is similar, the fact that the quantity of the drug the subject of the second count was substantially less than the quantity to which the first count related should, I consider, have been reflected in the sentence imposed. I consider that the sentence on the second count should have been somewhat less than that on the first count. I say that, although, standing alone, a sentence of 8 years' imprisonment for the offence in relation to the cocaine would not, in my opinion, have warranted interference on appeal.

19 In the result, I would grant leave to appeal but would dismiss the appeal against the sentence of 8 years' imprisonment on the charge of possession of heroin with intent to sell or supply. In relation to the charge of possession of cocaine with intent to sell or supply, I would allow the appeal, set aside the sentence of 8 years' imprisonment and substitute in place thereof a sentence of 6 years' imprisonment, to be served concurrently with the sentence on the first count.

20 HEENAN J: For the reasons stated by White J, I also would grant leave to appeal but would dismiss the appeal.