Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Whether error in failing to backdate sentence for time spent in custody - Role of objective evidence in assessment of extent to which a plea of guilty facilities the administration of justice - Relevance of rejection of exculpatory evidence given by appellant at trial of co-accused - Whether sentencing judge satisfied of aggravating factors beyond reasonable doubt - Whether appellant punished for offence or offences of which he had not been convicted - Turns on own facts

Criminal Appeals Act 2004 (WA), s 31(4)(a)

Sentencing Act 1995 (WA), s 7(2)(b), s 15

Bowe v The State of Western Australia [2011] WASCA 225

Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176

King v Alan Piper, Director General, Department of Justice WA [2004] WASCA 218

Moody v French [2008] WASCA 67

Narkle v Hamilton [2008] WASCA 31

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383

The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270

Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629

Zimmerman v The State of Western Australia [2009] WASCA 211

1 McLURE P: This is an appeal against sentence. The appellant was convicted of one count of receiving a stolen motor vehicle and one count of possession of a prohibited drug (heroin) with intent to sell or supply.

2 The appellant pleaded guilty to the receiving offence at the earliest reasonable opportunity. He pleaded guilty to the drug offence on the day on which his trial was to commence, having given notice of his intention to do so the previous week.

3 On 27 January 2011, the appellant was sentenced by Birmingham DCJ to 9 months' imprisonment for the receiving offence and 3 years' imprisonment for the drug offence. The sentencing judge ordered that the sentences be served concurrently with each other and with an existing sentence the appellant was serving. The appellant committed the receiving and drug offences whilst he was on parole for prior offences for which he was sentenced on 29 May 2003 to 12 years' imprisonment, to commence from 21 August 2002. The appellant was released on parole in August 2008.

4 The imposition of terms of imprisonment for the receiving and drug offences resulted in the automatic cancellation of his parole. As at the date of sentencing for those offences, the appellant had 1471 days left to serve of the 12-year term (parole days owing), the maximum sentence date for which was 5 February 2015. The figure of 1471 days was agreed by the parties and is calculated on the basis that the cancellation of the appellant's parole resulted in the loss of any entitlement to remission which had accrued prior to the commencement of the sentencing reforms in 2003. See King v Alan Piper, Director General, Department of Justice WA [2004] WASCA 218; Bowe v The State of Western Australia [2011] WASCA 225.

5 In relation to the drug offence, the appellant was jointly charged in the indictment with a co-offender, Michael Lever. There was a second count in the same indictment charging a third person, Ahmad Sayadi, with selling the heroin in question to the appellant and Lever. Sayadi was tried together with Lever. The appellant gave evidence for Lever and Sayadi at their trial which exculpated them both. Lever was convicted and Sayadi was acquitted. The appellant and Lever were sentenced together.

6 The appellant relies on four grounds of appeal, being that the sentencing judge erred:

(1) by failing to take into account the time the appellant had spent in custody prior to sentencing for the receiving and drug offences or, alternatively, in deciding not to take into account the time spent in custody;

(2) when assessing the mitigatory effect of the appellant's plea of guilty, by taking into account that the plea 'did little to assist the administration of justice, with the trial against the others continuing';

(3) in taking into account, as aggravating factors, facts that had not been proven beyond reasonable doubt;

(4) in taking into account, as an aggravating factor, conduct constituting a different offence or offences for which the appellant had not been charged or convicted.

7 The facts of the receiving offence are as follows. Between 2.30 am and 7.15 am on 24 February 2009, unknown persons gained access to premises in Thornlie and took two sets of keys to a Ford sedan motor vehicle and stole the vehicle. The appellant was given the keys to the vehicle by the persons responsible for the theft and he drove it back to premises in Maddington. At that time the appellant had registered to him a Ford sedan which was damaged and inoperable. On 24 February 2009, the appellant ordered a set of number plates to be made using the registration number of his damaged vehicle. The appellant attached the new registration plates to the stolen Ford sedan.

8 The facts in relation to the drug offence are as follows. From early on 25 February 2009, the appellant and his co-offender, Lever, were under covert surveillance by police. All calls to and from mobile phones operated by them were intercepted and monitored. Throughout the period of the surveillance, the appellant and Lever were engaged in a significant number of street level drug transactions. At about 1.40 pm on 27 February 2009, police stopped the vehicle in which they were travelling. The appellant was searched. The sum of $1,406 was found in the appellant's wallet. A purple and white plastic bag containing 10.1 g of heroin at a purity of 24% was found in the appellant's underwear.

9 The sentencing judge made preliminary remarks addressed to both the appellant and Lever. In relation to the drug offence he said:

The aggravating factor in relation to the possession with the intent offence is the extent to which you were both actively involved in the widespread supply of prohibited drugs throughout the community. If you'd been engaged in a single transaction of no commercial sophistication, one might probably have come to the view that there was a lesser need for personal deterrence.

Whilst the quantity in the lower percentage in respect of the current matters point to you being at the lower end of the scale, I do have regard to all of the circumstances, in particular the very significant number of transactions observed over the short period of time prior to your arrest. That points to it being part of a fairly sophisticated network. The telephone intercept materials lends further weight to that conclusion.

I find it as a fact that you were at the lower end of the hierarchy in drug dealing, but still play a very important part in the network responsible for the distribution of prohibited drugs into the community, a distribution chain that was able to shift a fairly considerable quantity of heroin and other drugs over a short period of time.

In my opinion, you are each part of the drug industry involved in commercial dealing. Whilst I accept that you, Mr Gullello, may have used some for your own use, the conclusion I draw from the evidence is that by far the substantial majority of the material found in your possession was for sale to others for profit (ts 439 - 440).

10 The sentencing judge then dealt with Lever. He concluded that, taking into account all relevant sentencing considerations for the drug offence, a term of imprisonment of 3 years was appropriate. Having regard to totality considerations, he reduced the sentence from 3 years' imprisonment to 2 years and 6 months because Lever had been in custody for unrelated matters from November 2009 until 22 December 2010. The sentencing judge ordered that the sentence be served concurrently with a sentence of 9 months' imprisonment for a receiving offence and directed that the total sentence of 2 years 6 months date from 22 December 2010, 'being the date when your previous sentence finished and you were then considered to be in custody in relation to this offence' (ts 443).

11 The sentencing judge then addressed his remarks to the appellant. The sentencing judge noted the appellant had a very significant criminal history, having been before the court repeatedly on very serious offences and that he had been in custody for the best part of his adult life (ts 444). When referring to the plea of guilty to the drug offence, the sentencing judge said:

Further, you pleaded guilty to the possession charge, indicating a change of plea the week prior to trial. Such a plea was late, and did little to assist the administration of justice, with the trial against the others continuing. I accept, however, that by such plea you lost any chance of acquittal.

I further accept that was an indicative, perhaps, of some degree of remorse, and perhaps some insight into the fact that you'd reached the end of the road. To that extent you're entitled to some consideration in relation to your plea to the possession conviction in relation to the manner in which I propose to sentence you today. Whilst it's not a factor that causes me to differentiate from the head sentence I consider appropriate in relation to the co-accused Lever, that is, having regard to the total criminality, I do regard it as an important factor to which I will return when I consider the question of whether you be made eligible for parole (ts 445).

12 Turning his attention to the drug offence, the sentencing judge said:

In relation to the possession of heroin with intent to sell or supply, taking into account all circumstances, your antecedents and the matters appropriate in this offending, I consider the appropriate sentence to be one of imprisonment for 3 years.

In imposing that sentence, I have regard to the fact that the person who seemed to be the one, on your testimony, ordering the heroin was you and if I was to identify the ringleader amongst the pair of you, it would be you, and I have regard to that.

Whilst the culpability of both in participation and distribution is the same, I think if any person out of the pair of you and Mr Lever were to be identified, it would be you as the person who arranged for the acquisition of the heroin that you were both going to distribute. Those are factors that I have regard in relation to the way in which you will be sentenced.

I'm mindful that in fixing the term of imprisonment that you must serve that you are already serving a sentence that was imposed in 2003. The consequence of your having that sentence and being sentenced to imprisonment today is that you'll be required to serve an additional 4 years and 6 months of that sentence and I understand it goes through to August 2014 (ts 446).

13 The sentencing judge concluded that the sentences for the receiving and drug offences should be served concurrently with each other and with the balance of the 12-year sentence. He also ordered that the appellant be eligible for parole.

14 The parties agreed that (1) service of the parole days owing commenced from the date of cancellation of parole, being the date (27 January 2011) on which the sentences for the receiving and drug offences were imposed; and (2) the appellant had spent 163 days in custody solely for the offences for which he was sentenced on that date.

15 The sentencing judge made no allowance for the time spent in custody. In particular, he did not backdate the sentences or expressly reduce the otherwise appropriate sentence for the receiving or drug offences. The latter clearly emerges from the sentencing remarks as a whole, including those relating to Lever. The practical effect of the failure to make any allowance is that the appellant received a total sentence of 3 years and 163 days.

16 When considering time spent in custody, the court has a discretion whether to make an allowance for that time and if so, how much of an allowance it will make. The manner in which the discretion is exercised will depend upon the individual circumstances of each case: Narkle v Hamilton [2008] WASCA 31 [40].

17 The issues are whether the sentencing judge gave any consideration to the time spent in custody for the offences and, if he did, whether he erred in failing to make an allowance for that period.

18 After identifying the term of imprisonment appropriate for the individual offences, the sentencing judge turned his attention to totality. He said:

I direct that the sentence I impose in relation to these offences be served concurrently with the existing offence. I will come back to the ultimate formulation of the way in which it will apply, however, such that you might be confident that you are not escaping punishment for these offences.

As a result of this offending and the sentence imposed, the parole order in which your existing sentence of which you are serving will be cancelled. As I've said, you'll serve another 4 years. You'll be eligible for a grant of parole during that period, subject to any minimum term that's imposed in relation to these offences (ts 447). (emphasis added)

19 After discussing and concluding that the appellant should be eligible for parole, the sentencing judge continued:

In the circumstances of this case, having regard to your offending for which you're to be sentenced today, your antecedents, I direct that the sentence imposed by me today have effect from today (ts 448). (emphasis added)

20 It is clear the sentencing judge did not intend to extend the appellant's head sentence beyond 5 February 2015. The appellant's punishment was intended to be the period of 18 months from the date of sentencing during which the appellant would be ineligible for parole.

21 I am not persuaded that the sentencing judge failed to consider whether to make an allowance for the time spent in custody for the receiving and drug offences. The italicised words and the intended nature of the punishment suggest otherwise. Further, the sentencing judge was aware that counsel for the appellant had submitted that any sentence of imprisonment should be backdated for the time he had spent in custody. He questioned counsel on the subject. His awareness of the issue is also reflected in the fact that he backdated the commencement of the sentence of imprisonment imposed on the appellant's co-offender, Lever. I infer from the reasons as a whole that the sentencing judge made a decision not to make an allowance for the time spent in custody because of his decision to order that all of the sentences, including the existing sentence, be served concurrently.

22 The sentencing judge having considered the matter, the appellant must demonstrate some other material error of fact or law vitiating the exercise of the discretion to make no allowance for the time spent in custody. No error has been demonstrated. The sentencing judge in effect increased the total sentence for the receiving and drug offences as an alternative to ordering partial cumulation of the total sentence for the receiving and drug offences with the sentence he was already serving. I would dismiss ground 1.

23 The appellant contends the sentencing judge made two express errors in dealing with the appellant's very late plea of guilty. The alleged errors are:

(a) the sentencing judge assessed the worth of the plea based on the objective consideration that the plea did little to assist the administration of justice; and

(b) that assessment was based on a factor beyond the appellant's control, namely that the trial against the co-accused continued notwithstanding his plea.

24 There is no merit in the first objection. Objective evidence of the extent to which a plea of guilty facilitates the administration of justice is ordinarily the factual foundation for any inference as to an offender's willingness to do so: Moody v French [2008] WASCA 67 [38]; Zimmerman v The State of Western Australia [2009] WASCA 211 [21].

25 The sentencing judge's conclusion that the appellant's very late plea to the drug offence did not materially assist the administration of justice explains the absence of an express reference to the next step in the analysis linking the objective fact to subjective intention.

26 There is also no merit in the second objection. The appellant contends he should not be penalised for factors beyond his control, being the continuation of the trial against his co-accused, Lever. The appellant had the onus of establishing on the balance of probabilities any mitigatory factor, including any relevant underlying facts. It is the underlying subjective facts concerning the offender's remorse, acceptance of responsibility and willingness to facilitate the administration of justice that govern the fact and extent of the mitigatory effect of a plea of guilty.

27 The objective facts relevant to an assessment of whether the appellant's plea of guilty indicated a willingness to facilitate the administration of justice are these. The appellant's plea of guilty came very late; the State case against the appellant was very strong; the appellant's plea of guilty freed him to give evidence in Lever's defence of the drug charge; the appellant's evidence exculpating Lever on the drug charge was positively rejected by the jury at trial which must have concluded he lied. Against that background, it was open to the sentencing judge to have regard to the appellant's conduct in the trial of his co-accused in assessing whether he had discharged the onus of establishing that his plea reflected a willingness to facilitate the administration of justice.

Grounds 3 and 4 - proof of aggravating factors

29 The appellant contends the sentencing judge wrongly took into account as aggravating factors:

(2) that the appellant was 'the person who arranged for the acquisition of the heroin';

(3) conduct constituting offences for which the appellant had not been charged or convicted.

30 The relevant passages from the sentencing remarks relating to each of the above matters are set out above.

31 A sentencing court can only take into account aggravating factors if it is satisfied of the existence of such factors beyond reasonable doubt: The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270.

32 The appellant says the sentencing judge failed to satisfy himself beyond reasonable doubt of the facts in (1) and (2). He relies on the tentative language in which the sentencing judge expressed his comments relating to the appellant as ringleader and the person ordering the heroin. The comments need to be construed in their broader context.

33 The sentencing judge made factual findings based on the evidence adduced at the trial of Lever. No objection was taken to that approach at the sentencing hearing. A sentencing judge is entitled to inform himself or herself in any way the judge thinks fit for the purposes of sentencing an offender: Sentencing Act 1995 (WA), s 15.

34 The appellant gave evidence that he had acquired the heroin the subject of the charge by purchasing it himself from a third person and that Lever did not have any role to play in the acquisition of the heroin and was not told about it by the appellant (ts 312 - 317). The appellant also testified that in the days leading up to his apprehension by police, he was the sole possessor and distributor of heroin, Lever confining himself to dealing in cannabis.

35 The appellant's evidence that he acquired the heroin the subject of the charge was not challenged by the prosecution. It was the identity of the supplier that was in issue. Further, the intercept material enabled an assessment of the relative roles of the appellant and Lever.

36 The sentencing judge understood that the criminal standard of proof applied. Earlier in his reasons he said:

The evidence adduced at trial establishes beyond reasonable doubt that each of you were directly involved in the sale of prohibited drugs, including heroin. I'm satisfied on the evidence that each of you were intimately involved in that process.

I reject the submission by Mr Lever's counsel that he was only involved in selling cannabis and that [the appellant] was responsible for the sale of heroin. I further do not accept the evidence given at trial by [the appellant] to that effect (ts 437).

37 The sentencing judge rejected the appellant's evidence given at trial only to the extent that it was exculpatory of Lever. Against the relevant background, I infer the sentencing judge's tentative language is intended to reflect some equivocation as to whether or not there was any material difference in culpability between the appellant and Lever that would justify a sentence higher than 3 years for the drug offence (which he had previously identified as being appropriate for Lever, leaving aside totality). I am not persuaded that any hesitation relates to the findings themselves which were clearly based on the appellant's sworn evidence at trial and the intercept material.

38 The next question is whether the sentencing judge erred in taking into account, as an aggravating factor, criminal conduct for which the appellant had not been charged or convicted. The appellant relies on the following statements made by the sentencing judge:

(1) The aggravating factor in relation to the possession with intent offence is the extent to which you were both actively involved in the widespread supply of prohibited drugs throughout the community (ts 439).

(2) As I've said, I consider it an aggravating factor the extent to which it was a fairly sophisticated commercial operation where you and [the appellant] were engaged seemingly constantly in the sale of prohibited drugs of all make and description (ts 442).

39 The first extract has to be read in its immediate context. The sentencing judge continued:

If you'd been engaged in a single transaction of no commercial sophistication, one might probably have come to the view that there was a lesser need for personal deterrence.

40 A sentence is not aggravated by the fact that an offender has a criminal record (Sentencing Act, s 7(2)(b)). Moreover, a person must not be punished for an offence of which he or she has not been convicted: R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, 389; Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 [32]; Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176 [26] - [29]; Zimmerman v The State of Western Australia [2009] WASCA 211.

41 However, a sentencing judge is bound to take into account all surrounding circumstances relevant to the commission of the offence. In this case the surrounding circumstances were directly relevant to an assessment of the seriousness of the drug offence for which the appellant was being sentenced. The fact that the appellant's conduct constituting the drug offence was not an isolated transaction but part of a commercial drug

dealing enterprise is a relevant circumstance that aggravates the seriousness of the offending.

42 Further, the surrounding circumstances provided the factual foundation for the sentencing judge's further finding that although the appellant may have used some of the heroin the subject of the charge, the substantial majority of it was for sale to others for profit. They were also relevant to the weight to be given to personal deterrence. The appellant was not sentenced for an offence for which he had not been charged or convicted.

44 I have concluded that the sentencing judge did not err in any of the ways contended for by the appellant in his grounds of appeal. However, even if an error was made I am not satisfied that a different sentence should be imposed, in which event the appeal must be dismissed (Criminal Appeals Act 2004 (WA), s 31(4)(a)). Having regard to all relevant sentencing considerations, a more favourable disposition would be inappropriate.