Court of Appeal (WA)|2007-11-29|Before: Mr J, Steytler P, Lure JA, Miller JA

the applicant was nearly 79 years old; 2. the applicant was likely to die in prison;

the applicant would find imprisonment harder to cope with than a younger offender;

the applicant was at significant risk of suicide, with a risk factor being hopelessness for the future.
That the learned sentencing judge erred in placing too much weight on the need for general deterrence, and insufficient weight, if any, on the need to exercise mercy in the circumstances.

19 The application for leave to appeal in respect of the fourth ground has been referred to this Court to be heard together with the appeal in respect of the first three grounds. Ground 4 reads as follows:

The sentence is manifestly excessive in light of:
1. the matters set out in grounds 1 to 3; and
2. the fact that, after the sentence was passed, the applicant was diagnosed with bilateral high grade prostate cancer.

20 The appellant has also applied for leave to introduce additional evidence in support of ground 4. This consists of reports dated 10 January 2007 and 23 May 2007 prepared by Dr David Oldham, a report from Dr Mark Platell dated 13 July 2007 and a report from a urologist, Mr Stan Wisniewski, dated 23 July 2007. There are also two affidavits. The first, dated 8 March 2007, is from his former counsel. The second, dated 2 August 2007, is from the appellant.

The applications for leave to appeal and to lead further evidence

21 It is convenient, first, to deal with the applications for leave to appeal on ground 4 and to lead evidence in support of that ground.

22 Dr Oldham's report dated 10 January 2007 reveals that the appellant was examined by a practitioner, Dr P Hames, on or before 5 July 2006. On that day (about a month before the appellant was sentenced), Dr Hames referred the appellant to a urology clinic in which Dr Oldham worked. The referral was in relation to an enlarged prostate, Dr Hames having found that the appellant's prostate was irregular and that he had a PSA (prostate specific antigen) count of 22. Those findings made it likely that the appellant had prostate cancer. The appellant was reviewed by the urology clinic on 25 August 2006 and a biopsy was taken. This revealed that the appellant had bilateral high grade prostate cancer. The appellant was placed on a course of hormone therapy requiring three-monthly injections.

23 In his affidavit, the appellant's former counsel, Mr Michael Tudori, says that at no time prior to the appellant's sentencing on 4 August 2006 was he aware that the appellant had received medical attention in relation to a prostate condition. The appellant, in his affidavit, says that, at no time prior to his sentencing was he aware that his condition had developed into prostate cancer. His evidence, and that of Mr Tudori, is consistent with the report provided by Dr Oldham.

24 The later medical reports essentially establish that it is hoped that the appellant's cancer will be controlled by hormone manipulation and that, depending upon the response of the tumour to hormonal manipulation therapy, the appellant's life expectancy might be shortened. Ordinarily, the appellant could be expected to live for another 10 years. However, his cancer may shorten this period by two or three years. Mr Wisniewski says that, when the tumour 'escapes' hormone control, the appellant may develop boney metastases with pain. He would then need analgesia and other supports. However, he anticipates that the tumour will be controlled for a number of years yet.

25 The known side effects of the therapy undertaken by the appellant are tiredness, lethargy, loss of muscle bulk, a tendency to osteoporosis and an earlier onset of dementia, when that is going to occur. There is also the prospect of hot flushes. However, some patients have minimal side effects and maintain a good quality of life. Mr Wisniewski says that it is too soon to know into which category the appellant will fall.

26 Each of Dr Platell and Mr Wisniewski was asked whether the fact that the appellant is in prison would make it harder for him to manage his condition. Dr Platell said that this was possible. Mr Wisniewski did not answer the question.

27 Section 40(1) of the Criminal Appeals Act 2004 (WA) provides that the court may do any of the things mentioned in that section for the purposes of dealing with an appeal. Subsections (a) to (d) deal with the admission of specific categories of evidence. Section 40(1)(e) gives to the court the power to admit 'any other evidence'. Also, under s 31(2) the court may, in deciding an appeal against sentence, have regard to any relevant matter that has occurred between the time of conviction and the hearing of the appeal.

28 In the circumstances of this case, it seems to me that leave to appeal should be granted in respect of ground 4 and that the evidence relied upon should be admitted. I have said that, when sentencing the appellant, the sentencing judge remarked that he did not have any significant illnesses or health problems other than those which were consistent with, and explicable by, his age. She was not aware of the appellant's cancer which, on the medical evidence, was by then present, although its presence had not been confirmed: see, in this respect M v The Queen [2004] WASCA 236 [72]. Neither the appellant nor his counsel was then aware of the likelihood that he had cancer. Because leave to appeal has already been given in respect of grounds 1 to 3, and because ground 4 merely seeks to add the new material to the other matters raised by those grounds in support of the proposition that the sentence is manifestly excessive, that ground should, in the circumstances, be regarded as having a reasonable prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

29 Essentially, the four grounds of appeal advance the following two broad propositions:

(1) The total sentence imposed is manifestly excessive because:

(a) the sentencing judge failed to give sufficient weight to the appellant's age and factors associated with it (ground 1);

(b) she placed too much weight on the need for general deterrence and insufficient, or any, weight on the need to exercise mercy in the circumstances (ground 2); and

(2) The sentencing judge failed to consider either the crushing effect of the sentence in the circumstances or the question whether the case was an inappropriate vehicle for general deterrence and denunciation (ground 3).

30 As to the first part of the first proposition, the sentencing judge gave some consideration to the appellant's age. She said, in the course of her sentencing remarks, that it was a tragedy for any person, young or old, to be imprisoned, but the position was even worse in the appellant's case because of the prospect of spending the last years of his life in a prison. However, as I have mentioned, she also said that she would have regard to his age 'in a general rather than specific manner'. Then, after referring to Braham v The Queen (1994) 116 FLR 38 for the proposition that an individual who commits a serious crime should not receive the benefit of a substantially reduced sentence simply because of youth or advanced age, she said that examples of planned crime for wholesale profit and active large-scale trafficking in dangerous drugs would, in the ordinary course, 'attract little by way of mitigation in relation to the age of the offender'.

31 The sentencing judge plainly made no significant reduction in the sentence imposed on the appellant on account of his age. That is apparent from the fact that she reduced the sentences that she would otherwise have imposed by 25%, so as to reflect the early pleas of guilty and all other matters in mitigation. When regard is had to the discounts conventionally allowed in respect of early pleas of guilty (often 25% or more, even in cases in which conviction was inevitable), and also to the fact of the appellant's substantial cooperation with the police to his own detriment, it is obvious that very little, if anything, could have been deducted on account of his age.

32 In considering whether the sentencing judge made any material error in that regard, it is necessary to take into account some of the principles that are applicable when sentencing elderly offenders.

33 There is no uniform approach in respect of a plea for mercy on account of advanced age. In England, in R v Poh (1981) 3 Cr App R (S) 304, the court dismissed an appeal against the severity of sentences imposed upon two men, respectively aged 64 and 58, arising out of an attempt to import 32 kg of heroin. Each of them had been sentenced to a term of 14 years' imprisonment. Lord Roskill, in his reasons, said (305):

It has been said that one of them is now 64 and the other is 58, and it was suggested, both at the trial and in this Court, that on humanitarian grounds these 14 year sentences were too long. In the view of this court these men have forfeited all rights to have any humanitarian considerations to be taken into account at this stage. They were prepared to hazard the lives of literally hundreds, if not thousands, of people of all ages up and down the Continent of Europe. Why we in this Court are now being asked to extend mercy to them merely because of their age is something which this Court finds difficult to understand, however eloquently the plea may be put forward. It cannot be too clearly realised that if persons engage in this type of trade the penalties must be as heavy as the law allows them to be.

34 On the other hand, Australian courts have often extended a degree of mercy in cases of advanced age (although the age has ordinarily been a good deal more advanced than that of the offenders in Poh). The justification for this is a recognition that, for an offender of advanced age, each year of a sentence represents a substantial proportion of the period of life which is left to him or her: see R v Hunter (1984) 36 SASR 101, 103 (King CJ); R v Whyte [2004] VSCA 5; (2004) 7 VR 397, 405 - 406 (Winneke P, with Bongiorno and O'Bryan AJJA agreeing); and Braham (51) (Angel J).

35 However, the cases stress that whether leniency will be afforded to a particular offender of advanced age depends very much on the circumstances of the case. They also stress that age is only one factor in the sentencing process and that advanced age can never be a justification for an unacceptably inappropriate sentence. The punishment must still be fairly proportionate to the crime: Hunter (103) (King CJ). Some offences will be so serious that long sentences of imprisonment are necessary whatever the age of the offender. In Braham, Angel J considered '[a]ggravated armed robberies carried out with loaded firearms, particularly in dwelling-houses at night, offences involving serious violence, the unlawful use of firearms to maim, planned crime for wholesale profit and active large-scale trafficking in dangerous drugs ... [as] examples of crimes where ordinarily, little, if any, account is taken of age in mitigation of penalty' (50 - 51). In Wheeler v The State of Western Australia [2007] WASCA 109 the court (Steytler P, McLure JA and Miller AJA) considered that repeated armed robberies carried out by a career criminal were in the same category. The court stressed that, in that case, it had been the offender's choice to embark upon his offending behaviour notwithstanding that he must have known that it would result in a long term of imprisonment if he was caught [19]. The court also said that the offender was a man from whom the community should be protected and that any weight his age might have carried in the sentencing process was overwhelmed by the seriousness of his offending behaviour and its sustained character.

36 Illness may be a mitigating factor where it cannot be treated effectively in prison or where it is of a nature that will result in imprisonment being more onerous for the offender than in the ordinary case. However, it is important to bear in mind what King CJ said in R v Smith (1987) 44 SASR 587, 589 (Cox and O'Loughlin JJ agreeing):

The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.

(See also Morgan (1997) 87 A Crim R 104, 107; Iskandar v The Queen [2001] WASCA 409; (2001) 126 A Crim R 546 [44] - [45]; R v Cumberbatch [2004] VSCA 37; (2004) 8 VR 9 [12] - [13]; R v Van Boxtel [2005] VSCA 175; (2005) 11 VR 258 [29] - [33].)

37 Where ill health is a factor in mitigation, it will of course operate regardless of the age of the offender. Advanced age will only be relevant in this context if it results in the illness having a greater effect on the offender than if he or she was a younger person.

38 In this case, the fact of the appellant's illness, while relevant, does not warrant a large reduction in the sentence that might otherwise have been imposed. The medical evidence indicates that the illness, while serious, should be controlled for some years yet. As I have said, it is likely to shorten the appellant's life expectancy of 10 years by about two or three years. While his treatment may lead to side effects, it remains to be seen how significant these will be. There is presently no reason to believe that the appellant will not be able to cope adequately with these in a prison environment. I have said that the medical evidence goes no higher than to suggest that it is 'possible' that being in prison would make it harder for the appellant to manage his condition.

39 Counsel for the appellant submitted that there was not much need for general deterrence and denunciation in a case such as this, where the offender is 79 years old and had led a blameless existence until his offending behaviour began. This kind of submission has been considered in a number of cases.

40 In Braham, different opinions were expressed in this respect. In that case the offender had been convicted of two offences relating to the cultivation of cannabis. He was sentenced to a total term of 3 1/2 years' imprisonment with a 21 month non-parole period. He was 78 years of age at the time of committing the later of the two offences and 80 years old at the time of the appeal. His counsel argued that the sentencing judge had made insufficient allowance for his age.

41 The majority (Martin CJ and Thomas J) disagreed and dismissed the appeal. Martin CJ said (42):

This is not a case in which the applicant suffers from any ill health which is likely to place any greater burden upon him during his term in prison, a consideration which might otherwise be brought to bear in his favour. Nor do I accept an argument that was put that questions of personal and general deterrence should have little weight, because he should be treated upon the same basis as intellectually handicapped people or those suffering from mental disorder or abnormality, who have the misfortune to come before the courts to be dealt with for criminal conduct. The applicant fully appreciated what he did.

The second of these offences carries a maximum penalty of 25 years imprisonment, amongst the most serious of offences which can be committed in the Northern Territory. The Court must take notice of that, and in so doing, particularly bear in mind the requirement of general deterrence. With respect, I reject the proposition that in that context the Court is here only concerned about deterring other octogenarians from organising substantial cannabis crops for commercial purposes. One would expect it would have a much wider impact than that.

Thomas J, although agreeing that the appeal should be dismissed, accepted that general deterrence is only a minor consideration when sentencing a person of the offender's advanced age (62).

42 Angel J, in dissent, would have allowed the appeal. He considered that the case was an inappropriate vehicle in which to give voice to general deterrence as opposed to personal deterrence or deterrence of others of a like age (54). He said, in this last respect, that there was no reason to suppose that other 79-year-old Territorians needed to be deterred from organising commercial drug crops. He considered that a suspended sentence was a sufficient deterrent to the individual offender and that neither retribution nor general deterrence required a custodial sentence in the circumstances. He said that a sentence of that kind was justified 'as an act of mercy in this unusual case'.

43 In Holyoak (1995) 82 A Crim R 502, Allen J, sitting in the Court of Criminal Appeal in New South Wales, disagreed with Angel J's suggestion in Braham that proportionality and general deterrence are irrelevant in a case in which advanced age is a factor justifying significant leniency (507). However, he said (507 - 508) that what was appropriate by way of full-time custody, viewed from the point of view of general deterrence:

must be considered in the light of the impact upon public perception of a gaol sentence imposed on a man of such advanced years upon whom the sentence would bear the more heavily because of his very age and the real risk that he will never walk free.

By this, I take Allen J (with whom Handley JA was in general agreement) to mean that the general public may be sufficiently deterred in a particular case by a relatively light sentence imposed on a person of advanced years because the public will appreciate that the sentence constitutes a greater punishment for that person than it would for a younger person.

44 In R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231, the South Australian Court of Criminal Appeal considered the factor of advanced age in the context of the broad objectives of sentencing. Gray J said [228]:

It is well settled that age may operate to mitigate sentence. It is a relevant matter to be considered in the fixing of a non-parole period. However age cannot be used to justify the imposition of an unacceptable or inappropriate sentence. Proper regard must be had to the punitive, deterrent, retributive and rehabilitative aspects of punishment. (footnotes omitted)

Mullighan J expressed similar views, saying [30]:

The cases clearly show that advanced age may have the effect of reducing a sentence in appropriate circumstances but it does not follow that such age necessarily has that consequence. Obviously a person in his eighties or nineties is not to be inadequately punished for serious crime, merely because of his age. It is to be expected that in such cases the effect of the sentence is that the offender will probably die in prison. Age cannot subsume all other matters to be taken into account, including the four main considerations on sentence, appropriate punishment, protection of the public, deterrence, both general and personal, and rehabilitation, although it may be said that advanced age may have an effect upon one or more of those considerations, particularly deterrence.

45 In this State the court has spoken of mercy and general deterrence in oppositional terms. In Smith v The Queen (Unreported, WASCA, Library No 940285, 2 May 1994), the Court of Criminal Appeal (Malcolm CJ, Pidgeon and Anderson JJ) said:

In our opinion, the significance of old age as a mitigating factor, particularly when combined with ill health, is that it constitutes a basis on which the Court, in the exercise of mercy, may impose a sentence significantly shorter than might otherwise be the case. To that extent the need for general deterrence may be required to surrender some ground to the need to exercise mercy and take account of the possibility that the offender may not live to be released.

46 More recently, in Collard v The State of Western Australia [2004] WASCA 297, Templeman J (with whom Wheeler and Miller JJ agreed) emphasised the use of the word 'may' in this extract [26]. The court was there dealing with a 68-year-old man who suffered from bad health, including diabetes, associated circulation problems, an enlarged heart and asthma. He was convicted of conspiracy to sell methylamphetamine. He had been running a family business selling drugs. His main clients were young boys. He was sentenced to a term of 8 years and 8 months' imprisonment. On appeal, it was argued that the sentencing judge failed to give weight to the significant mitigating circumstance of the offender's age and ill-health. Templeman J said [33]:

In my view ... this is a case unlike Smith. This is a case of a mature man, a leader in the community who engaged in this very serious criminal conspiracy despite his age and health condition. He must have been well aware of the risk he was running if detected: well aware of the risk that a substantial period of imprisonment would be imposed upon him. Nevertheless, he chose to pursue that course of conduct. In those circumstances this is not in my view a case in which the need for general deterrence should be surrendered to the personal circumstances of [the appellant].

47 In Kaye v The Queen [2004] WASCA 227 the court dealt with a 71-year-old offender who had been sentenced in respect of an offence of offering to assist a person to commit an act of indecency on a person under the age of 16 years outside Australia. In the course of her reasons, McLure JA said [65]:

The weight to be given to the applicant's age is not to be considered in isolation. What is 'old age' can change over time as the average lifespan increases and may vary according to the particular circumstances of the offender, including his or her mental and physical health and lifestyle. It is relevant to note in this context that at the time the applicant committed the offence he was in his late sixties, was running a travel business and was himself travelling overseas from time to time. He was not suffering from any physical or mental health problems that reduced the level of his culpability or otherwise reduced the weight to be given to considerations of personal and general deterrence. To the contrary, the applicant refused to accept responsibility for his offending and showed no remorse.

Age and the second limb of the totality principle

48 Advanced age has sometimes been held to be relevant to the second limb of the totality principle, which is essentially to the effect that a sentence should not be imposed that is such as to destroy any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. For example, in Bishop v The Queen [2003] WASCA 79 [75], Parker J (with whom Malcolm CJ and Murray J agreed) noted that, in the case of an offender of very advanced age, a sentence that would otherwise be appropriate may be crushing because of the prospect of death before the term has been served. The same might be true in a case in which there is the prospect that death will follow very shortly after the term has been served.

49 However, the second limb of the totality principle is not an absolute principle. In Crowley (1991) 55 A Crim R 201, 205 - 206, Crockett J (Southwell and Ashley JJ agreeing) said, in the Victorian Court of Criminal Appeal, that whilst a court may always be reluctant to impose a crushing sentence upon an offender, it does not follow that every sentence that deserves to be called crushing must on that account alone be held to be manifestly excessive. He said that there will be cases in which the offender has, by his or her criminal act or acts, forfeited the right to any hope or expectation of being released from confinement at a time that permits some useful period of life left over to enjoy.

50 Crockett J's comments were approved in Bazley (1993) 65 A Crim R 154. The court (Crockett, Hampel and Smith JJ) there said that, whilst the age of an offender is a relevant consideration of considerable significance in some cases, 'it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence' (158). The court also said that it was wrong to approach the question of an appropriate minimum term on the basis that there was a need to guarantee some measure of life after release. It said (159):

If such a course were followed it may lead ... to an impermissible disregard of factors required to be taken into account such as general deterrence and retribution. The fact that the respondent did not require to be specifically deterred or rehabilitated cannot allow the part to be played by other relevant considerations to be obscured. Nor can those other considerations be disregarded by treating the question of the respondent's age as the primary consideration.

Similarly, in Holyoak (507), Allen J said that it is not the law that it is never appropriate to impose a minimum term which will have the effect, because of the advanced age of the offender, that he or she may spend the whole of his or her remaining life in custody. (See also Cumberbatch [12] - [13]).

51 However, in R v Miller [2000] SASC 16; (2000) 76 SASR 151, Doyle CJ, when considering the sentence imposed upon a man who had been convicted of six counts of murder, took into account the possibility that he might die in prison, or at best have a limited period of liberty after serving his sentence. He said that this would ordinarily require careful consideration of the totality principle and might well result in the reduction of a sentence or non-parole period.

52 As a general principle, sentencing judges may have regard to circumstances which would make imprisonment more arduous for a particular offender than is normal: Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260 [24], [49]; R v Eliasen (1991) 53 A Crim R 391, 395. Street CJ said, in this respect, in R v Vachalec [1981] 1 NSWLR 351, 353:

It is obvious that imprisonment will always impose physical and emotional hardships and deprivation upon the person imprisoned. But there can be cases where that hardship and deprivation would be particularly aggravated by matters subjective to the prisoner and this is a proper consideration to be taken into account by a sentencing judge.

53 In Braham, Angel J referred to the rigour of imprisonment being 'generally speaking, a harsh experience for elderly offenders' (51). However, that will not inevitably be so and each case must be looked at in the context of its own circumstances.

Applicable principles in a case of this kind

54 It seems to me that the following broad general principles might be extracted as being ordinarily applicable in a case such as the present:

(1) Where moral culpability is reduced by reason of advanced age (which will inevitably mean that the advanced age is coupled with some other factor that is a consequence of it, for example when there is an age related mental impairment), allowance should be made for that factor.

(2) Where there is evidence sufficient to justify the conclusion that circumstances associated with advanced age (for example, continuous ill health, or ill health coupled with physical or mental frailty) will make imprisonment more arduous for the offender than is normal, allowance should be made for this.

(3) Account may also be taken of hardship for the offender arising out of his or her knowledge that a lengthy sentence of imprisonment is likely to destroy any reasonable expectation of useful life after release. However, the punishment must still reflect the crime and the seriousness of the offending behaviour may be such that the offender has forfeited the right to any reasonable expectation of useful life after release.

(4) Deterrence and denunciation are important even in the case of an offender of advanced age. However, where there are factors associated with age that justify a more lenient sentence, the general public will understand why the sentence is less severe than might otherwise have been the case and the purposes of deterrence and denunciation will still be served. However, if this is to be achieved, the punishment must still reflect the seriousness of the crime.

Should a different sentence have been imposed?

55 In this case there is nothing to suggest that the appellant's age contributed to, or resulted in, any factor that lessened his moral culpability. However, it seems to me that there are other reasons why it was appropriate to allow some discount in the total sentence imposed (there is no complaint concerning any of the individual sentences) because of the advanced age of the appellant. Imprisonment will be harder for him than for the ordinary person. That is because there is, in his case, no reasonable expectation of useful life after release, given his advanced age and his illness. That knowledge will inevitably exacerbate the depression from which he already suffers.

56 However, it does not assist the appellant to establish that there was an error in making no, or no sufficient, allowance in this respect if the sentence ultimately imposed was appropriate in all of the circumstances of the case, however that sentence was arrived at. In other words, the appeal must still fail if this court should conclude that no different sentence should have been imposed: s 31(4)(a) of the Criminal Appeals Act.

57 Consideration of that issue involves the application of the first limb of the totality principle, which seems to me to be more pertinent than the second limb in the case of an offender of advanced age. The first limb of the totality principle requires that the total effective sentence should bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally (one of these being his age): Woods v The Queen (1994) 14 WAR 341. In my opinion, the sentence imposed in this case does not infringe that limb. When regard is had for the level of sentences customarily imposed in respect of offences involving dealing in large quantities of serious drugs it can be seen that the total sentence imposed in this case is lower than might ordinarily have been expected, even having regard for the appellant's early pleas of guilty and co-operation with the police.

58 In Quach v The Queen [1999] WASCA 210, the offender was found by a jury to have been guilty of possession of 635 g of heroin, with a purity of between 58% and 63%, with intent to sell or supply. He committed the offence for commercial gain. He had no relevant prior convictions. He was sentenced to a term of 15 years' imprisonment. In the course of his judgment, Ipp J (with whom Wallwork and White JJ agreed) concluded that the appropriate range of sentences for cases of a similar nature was between 11 and 15 years' imprisonment.

59 In Cameron v The Queen [2000] WASCA 286 and Cameron v The Queen [2002] WASCA 81, the offender pleaded guilty to possession of 1.1 kg of methylamphetamine, with a purity of 3% to 4%, with intent to sell or supply. He had acted as a courier. He had prior convictions but these were not related to drug offences. He was sentenced, after a successful High Court appeal, to a term of 8 years' imprisonment.

60 In Aconi v The Queen [2001] WASCA 211, the offender had pleaded guilty on the fast-track to two counts of possessing heroin with intent to sell or supply. The amounts involved were respectively 112.5 g, with a purity of 43%, and 480.2 g, with a purity of 57%. The offender was not an addict. He had no prior convictions for drug offences. He was not a 'mere courier'. He was found to have been much higher up in the distribution chain. He was sentenced to a term of 13 years' imprisonment.

61 In Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19, the offender was convicted, after trial, of trafficking in 127 g of heroin with a relatively high (said in Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 to be a purity of 57%) purity. He was a first offender. He had been the principal offender. He was sentenced to a term of 12 years' imprisonment.

62 In Delovski v The Queen [2002] WASCA 88, the offender pleaded guilty to the sale of 524 g of heroin with a purity of 25%. The supplier of the drugs was the offender's brother. As a favour, the offender took the brother's place in negotiating the sale and delivery of the drugs on this occasion. He was found to have been more than a mere courier but a subordinate in the transaction. He had no criminal record. He was sentenced to a term of 9 years' imprisonment.

63 In Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522, the offender pleaded guilty to possession of 422.5 g of methylamphetamine, with a purity of 59.3%, with intent to sell or supply. He was found to have been a courier. However, the court also found that he knew that he must have been dealing in a large quantity of drugs. He had no relevant prior convictions. He was sentenced to a term of 10 years' imprisonment.

64 In Stapleton v The Queen [2004] WASCA 130, the offender pleaded guilty to supplying 437 g of methylamphetamine with a purity of 58%. He had no relevant prior convictions. His part in the enterprise was found to have been unsophisticated. He was to have received only a small reward in respect of his role. He was sentenced to a term of 9 years' imprisonment.

65 In Tulloh, the offender was convicted, after a trial, of possession of a total of about 805 g of methylamphetamine, with an average purity of around 60%, with the intention of selling or supplying it. He was sentenced to a term of 15 years' imprisonment.

66 All of these sentences were imposed prior to the introduction of the transitional provisions contained within sch 1 to the Sentencing Legislation Amendment and Repeal Act 2003 (WA). Consequently, for comparative purposes, each must be reduced by one-third. However, even making that reduction, the sentences imposed in those cases reveal that the sentence of 9 years' imprisonment imposed in this case was low, having regard for the nature, duration and scale of the appellant's offending.

67 The same is true of sentences imposed in cases decided since the transitional provisions came into effect.

68 In Benter v The State of Western Australia [2005] WASCA 245 the offender was convicted on one count of possession of methylamphetamine with intent to sell or supply. The quantity involved was 222.4 g with a purity of between 53% and 65%. The offender pleaded guilty (albeit late). He had purchased the drugs from a co-offender (Urbano) for $40,000. A term of 7 years' imprisonment was upheld on appeal.

69 In Urbano v The State of Western Australia [2006] WASCA 147 the offender was convicted, after a trial, on one count of selling 222.4 g of methylamphetamine (being the drugs sold to Benter) and one count of possession of 11.4 g of methylamphetamine, with a purity of 76%, with intent to sell or supply. He was sentenced to a total of 8 years' imprisonment. His appeal against sentence was dismissed.

70 In Ruich v The State of Western Australia [2006] WASCA 241 the offender was convicted on one count of conspiracy to sell or supply heroin, one count of supplying heroin (a quantity of 2.02 g with a purity of 36%) and one count of possession of heroin with intent to sell or supply (a quantity of 35.75 g with a purity of 38%). He pleaded guilty to all three charges. He had a significant record of relevant prior convictions. His appeal against a total sentence of 7 years and 4 months' imprisonment was dismissed.

71 In Dao v The State of Western Australia [2007] WASCA 237 the offender was convicted on one count of possession of heroin (56.03 gm with a purity of 59%) with intent to sell or supply and one count of possession of methylamphetamine (119.2 g with a purity of 49%) with intent to sell or supply. She pleaded guilty to both offences. She had transported the drugs (which had a street value of $390,000) from Sydney to Perth. Her appeal against a total sentence of 6 years' imprisonment was dismissed.

72 In Monument v The State of Western Australia [2007] WASCA 239 the offender was convicted on one count of possession of methylamphetamine (499 g with a purity of 78%) with intent to sell or supply and one count of possession of somatropin with intent to supply (he had proposed to use half of the somatropin himself and to supply the rest to others). He pleaded guilty to both offences. He had no relevant criminal record. A sentence of 7 years' imprisonment was upheld on appeal

73 Of course, it would be an error to focus exclusively on the quantity of the drug involved: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584. It is important, also, to consider the role played by the offender in the commission of the offence, the duration of the offending behaviour, the offender's knowledge of the type and amount of drugs involved and any other relevant matters, including the offender's age. In this case the appellant's offending was on a very large scale over a long period of time. He dealt repeatedly in two very serious drugs. His motive was financial gain. The quantities ordinarily sold by him, and the degree of purity of the drugs sold, indicate that he was selling at a wholesale level. He should consequently be regarded as being relatively high up in the drug hierarchy, as the sentencing judge found. In all of these circumstances any lesser sentence than that imposed would, in my opinion, undervalue

the seriousness of the appellant's offending and pay insufficient regard to the requirements of deterrence and denunciation, even taking full account of the appellant's age, his illness, his early pleas of guilty, his co-operation with the police and other factors in mitigation. I would consequently not have imposed any different sentence.

Legislation Amendment and Repeal Act 2003

Property Confiscation Act 2000

GULYAS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 263 (29 November 2007)

GULYAS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 263 (29 November 2007)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (89 paragraphs)

Age and the second limb of the totality principle

Applicable principles in a case of this kind

Should a different sentence have been imposed?

Legislation Cited (4)

Cases Cited (14)

GULYAS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 263 (29 November 2007)