JECKS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 111 (29 May 2007)

Court of Appeal (WA)|2007-05-29|Before: Steytler P

1 JUDGMENT OF THE COURT: On 23 June 2006 the appellant was convicted after trial of conspiracy to sell or supply methylamphetamine between 26 February and 17 April 2004. On 21 July 2006 he was sentenced to 4 years' imprisonment with eligibility for parole. He sought leave to appeal against that sentence. At the conclusion of argument on the appeal we refused the application for leave to appeal and said that we would provide reasons in due course. We now do so.

2 The appellant was employed as a panel beater and spray painter by two brothers, Umberto and Stefano Bova. The business premises were used to operate an amphetamine distribution network. Between 27 February 2004 and 17 April 2004 police intercepted some 4800 telephone calls to and from the business, nearly all of which were connected with the sale of methylamphetamine. Some of the buyers went to the premises to make their purchase. Others had the methylamphetamine delivered. In cases of the latter kind one or other of the Bovas would speak to the appellant, or to a co-offender, Dennis Poland, each of whom were couriers of drugs sold by the Bovas.

3 Poland, who was 25 years of age and had no relevant prior convictions, was a user of methylamphetamine at the time. He pleaded guilty shortly before he was due to be tried. The evidence against him was overwhelming. The trial Judge said that, in his case, the appropriate sentence was one of 6 years' imprisonment but that he would deduct 6 months in respect of the plea of guilty. Then, after applying the transitional provisions provided for by the Sentencing Legislation and Repeal Act 2004 (WA) ("transitional provisions"), he reduced that term to one of 3 years and 8 months' imprisonment.

4 The sentencing Judge sentenced the appellant at the same time. He was 27 years old and had no relevant prior record. He came from a stable and supportive family and had a good employment record. He was supporting a de facto spouse and young child. He assisted his father who was in seriously ill health. Character referees spoke favourably of him.

5 The evidence at the trial established that the appellant had made some 10 deliveries on behalf of the Bova brothers involving, in all, around 9 to 10.5 grams of methylamphetamine. However, the sentencing Judge said that it was difficult to confirm the extent of his involvement (and that of Poland).

6 By the time of the sentencing of the appellant and Poland, each of Umberto and Stefano Bova had been sentenced.

7 Umberto Bova had pleaded guilty on the fast track system to 14 counts of conspiracy to sell or supply methylamphetamine and to one count of possession of 89 grams of methylamphetamine, found at the business premises by the police, with intent to sell or supply. He was sentenced to 6 years' imprisonment in respect of the conspiracy charges and to a term of 7 years' imprisonment with respect to the charge of possession with intent. The terms were ordered to be served concurrently. The offences had been committed whilst he was on parole in respect of a sentence of imprisonment imposed in respect of a prior drug offence.

8 Stefano Bova pleaded guilty later than his brother. However, the sentencing Judge considered that his plea should be afforded much the same weight as that made by his brother. In his case, as was the case with the appellant and Poland, there was only one count of conspiring to sell or supply methylamphetamine (the office of the Director of Public Prosecutions (WA) seemingly regarded it as being simpler to charge him in that way). He was also charged with one count of possession of methylamphetamine with intent to sell or supply. This charge related to the 89 grams of methylamphetamine that were found at the business premises. He was also in breach of a 24 month intensive supervision order for possession of methylamphetamine with intent to sell or supply. For parity reasons, he was sentenced to a term of 6 years' imprisonment on the conspiracy charge. He was sentenced, on count 2, to a concurrent term of 6½ years' imprisonment. He was also sentenced to a term of 20 months' imprisonment for the breach of the intensive supervision order. That sentence was ordered to be served concurrently with the other sentences imposed.

9 When the sentencing Judge came to sentence the appellant and Poland, he found that the Bova brothers had operated at the highest level of the persons involved with the drug offences. This was because they were the suppliers and the source of the amphetamines. He regarded the appellant and Poland as being at the next level of seriousness. He said that the purchasers (five of whom had pleaded guilty and been sentenced to non-custodial dispositions) were at the lowest level of culpability.

10 The particulars of the indictment set out the overt acts that were attributed to the appellant. He was said to have been the supplier of methylamphetamine to 15 identified individuals on seven dates between 27 February and 15 April 2004. That was the case that was presented and proved against him at the trial. The particulars in the indictment attributed to Poland overt acts in the form of the supply of methylamphetamine to 44 identified individuals and his agreement to supply an unknown individual on various dates (some 24 in all) between 1 March and 16 April 2004.

11 Because the appellant's appeal notice was filed on Monday 14 August 2006 when it had been due on the preceding Friday, he sought an extension of time in which to appeal. He relied, in that respect, upon an affidavit sworn by his solicitor. His solicitor said that the delay was attributable to a combination of difficulties in obtaining the sentencing transcript and his own work commitments.

12 There is only one ground of appeal. It is that the sentence of 4 years' immediate imprisonment was manifestly excessive having regard to the small amount of drugs involved, the appellant's limited role and the appellant's previously favourable antecedents, including the lack of any relevant prior criminal record.

13 In the course of his sentencing remarks, the sentencing Judge specifically took into account the appellant's previously favourable antecedents, including the lack of any relevant criminal record and the character references which had been provided in respect of him. He also referred to the fact that the appellant's father was very ill and relied heavily on the appellant's support. We have said that he accepted that the role played by each of the appellant and Poland was less than that of the Bova brothers but said that both had played a vital role in the conspiracy. He rejected a submission that the two men should be treated similarly to the five convicted purchasers. It is apparent from the transcript of the sentencing proceedings that the sentencing Judge was well aware of the amount of drugs with which the appellant had been directly involved, although he made no specific reference to this in the course of his sentencing remarks.

14 The appellant is consequently left only with his contention that error can be inferred from the fact that the sentence is manifestly excessive. In considering a contention of that kind, it is necessary to view the sentence imposed in the context of the maximum sentence prescribed by law, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337 at 342.

15 The maximum penalty for the offence of conspiring to sell a prohibited drug is 20 years' imprisonment. Trafficking in amphetamines is recognised as being in the higher range of seriousness in the scale of drug trafficking offences: Bellissimo (1996) 84 A Crim R 465 at 471; Collier v The Queen [2001] WASCA 69 at [10]; Kirby v The Queen [2003] WASCA 164 at [143] - [144]. The major sentencing considerations for the offence of conspiring to traffic in prohibited drugs are general and personal deterrence. This has the consequence that mitigatory circumstances personal to an offender have correspondingly less weight: The State of Western Australia v Andela [2006] WASCA 77 at [16], [17]; Macri v The State of Western Australia [2006] WASCA 63 at [25]; Yazdani v The State of Western Australia [2006] WASCA 221 at [51].

16 That brings us to the standards of sentencing customarily observed. It is relevant, in that regard, to reiterate what was said by McLure JA in Tulloh v The Queen [2004] WASCA 169; [2004] 147 A Crim R 107 at [46] as follows:

"In determining whether a sentence is within a sound discretionary range, it is proper to have regard to decisions in comparable cases. Indeed, part of this Court's role is to ensure an appropriate level of consistency in the sentences imposed in this State. At the same time I am mindful that the comparative exercise can be of limited utility because each case turns on its own facts and circumstances. However ... [because] deterrence is the dominant sentencing consideration and personal circumstances and antecedents carry little weight, the range of a legitimate variation in sentences should be materially reduced and comparisons of greater assistance."

17 Counsel for the appellant placed some reliance on cases concerning possession of bulk quantities of amphetamine with intent to sell or supply. These included Vogel v The Queen [2002] WASCA 261; Leonard v The Queen, unreported; CCA SCt of WA; Library No 990152; 29 March 1999; Samuel v The State of Western Australia [2004] WASCA 154; Schlenka v The State of Western Australia [2004] WASCA 142; Duong v Western Australia [2006] WASCA 110; (2006) 32 WAR 246 and Davies v The State of Western Australia [2006] WASCA 151. In our opinion none of those cases lends the appellant any assistance.

18 In Vogel, the offence involved a total of around 7 grams of methylamphetamine with a relatively low level of purity equating to 1.48 grams of pure methylamphetamine. The appellant claimed to have bought the drug for personal use, but was disbelieved by the jury. He was a person of prior good character with favourable antecedents. A term of 3 years' imprisonment, prior to the operation of the transitional provisions, was upheld on appeal.

19 In Leonard, the appellant had pleaded guilty to an offence involving 22.4 grams of methylamphetamine with a purity of 8.5 per cent (1.9 grams pure). He was a person of good antecedents. He was sentenced to a term of 5 years' imprisonment prior to the operation of the transitional provisions. The sentence was upheld on appeal.

20 Samuel involved a very small quantity of methylamphetamine (6.25 grams with a purity of 25 per cent). The offender pleaded not guilty and was convicted after a trial. He was a family man aged 47 with an unblemished record and a good employment history. There was no apparent explanation for his commission of the offence. On appeal, a sentence of 2 years' imprisonment was suspended for 2 years.

21 In Schlenka the appellant was convicted after a trial. His offence involved 12.7 grams of methylamphetamine with a purity of 47 per cent. He was a young offender with no prior convictions. He had been a heavy drug user at the time of offending. He was sentenced to a term of 2 years and 4 months' imprisonment which was reduced on appeal to 1 year and 8 months' imprisonment. The initial sentence was said to have been within an appropriate range, but, because no sufficient weight had been given to the exceptional personal rehabilitation of the appellant since the time of his offence, it was considered appropriate to reduce the sentence.

22 Duong involved 6.7 grams of methylamphetamine with a purity of 25 per cent. The offender, a 25-year old man, had pleaded guilty. He was a heavy drug user. He intended to use some of the drug himself and share some with his friends. He had only one prior conviction for a minor offence committed some seven years previously. He was sentenced to a term of 18 months' imprisonment, after allowing for the operation of the transitional provisions. His appeal was dismissed.

23 In Davies, the offender was convicted after a trial. Her offence involved 13 grams of methylamphetamine with a purity of 70 per cent. She was imprisoned for 5 years, after allowing for the operation of the transitional provisions. That sentence was ordered to be served cumulatively upon a prior sentence of imprisonment, resulting in a total sentence of 5 years and 8 months' imprisonment. She successfully appealed against her conviction. While it was unnecessary to consider the appeal against sentence, the court considered that the sentence was within the range of a permissible sentencing discretion.

24 All that these cases reveal is that there is a substantial range that has customarily been imposed in offences of the kind there dealt with (none of which involved a conspiracy in the course of an ongoing drug trafficking business). Moreover, the cases of Vogel, Leonard and Davies seem to us to suggest that the sentence imposed in this case was well within the range of sentences customarily imposed. There are other cases that support that proposition: see, for example, those mentioned in Tulloh; and see also Macri and the cases there referred to.

25 Counsel for the appellant also referred to Votano v The Queen [2000] WASCA 144 and to Miller v The Queen [1999] WASCA 66. In the first of those cases the appellant had brought a large quantity of drugs from Sydney to Perth. One package contained 164 grams of methylamphetamine and the other 237.9 grams. However the drugs in the second package were of a relatively low purity. In all, the packages contained about 106 grams of pure methylamphetamine. The appellant was sentenced to a term of 7 years' imprisonment prior to the coming into operation of the transitional provisions. In the second case, Miller, the appellant was described as a courier who had attempted to sell 454 grams of methylamphetamine with a purity of only 6 per cent to an undercover police officer. He was sentenced to 7 years' imprisonment, also prior to the coming into operation of the transitional provisions. Neither of these cases is comparable to the present case which, as we have stressed, involves a conspiracy concerning the implementation of a series of drug sales in the course of a drug trafficking business in which the appellant, while not the principal offender, played an important role.

26 Finally, counsel for the appellant sought to persuade us that in this case the role of the appellant was so limited as to fit him within the description of a street vendor selling small quantities of the drug. We were not at all persuaded by that submission. The appellant was correctly categorised as a courier.

27 Given the breadth of the conspiracy in which the appellant was involved, the absence of any mitigation from a plea of guilty and the lack of any remorse for his offending, and given also that the matters in mitigation could not be given substantial weight (and all of these were taken into account by the sentencing Judge), we are not persuaded that the sentence imposed could reasonably be described as manifestly excessive. For these reasons, while we were prepared to grant the extension of time, we refused leave to appeal.

Sentencing Legislation and Repeal Act 2004(WA)

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