© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the official source for authoritative text.
[2002] WASCA 102
Court of Appeal (WA)
2002-05-01
Malcolm CJ
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : JOHNSON -v- THE QUEEN [2002] WASCA 102
Criminal law and procedure - Sentencing - Commonwealth drug offences - Attempts to obtain prohibited imports - Ecstasy 1.4887 kg (805.2 g pure MDMA) and Cocaine 500.9 g (131.7 g pure) - Sentences of 11 and a half years and 3 and a half years with a single minimum term of 5 and a half years not manifestly excessive
Customs Act 1901 (Cth) s 233B, s 235(2)
Respondent : Commonwealth Deputy Director of Public Prosecutions
Attorney General v Tichy (1982) 30 SASR 84
Bellissimo (1996) 84 A Crim R 465
Chua v R [2001] WASCA 353
Darwell v R (1997) 94 A Crim R 35
Holland v R [1999] WASCA 43
Little v R [2001] WASCA 87
O'Brien v R (1991) 57 A Crim R 80
Oancea (1990) 51 A Crim R 141
Olbrich [1999] HCA 54; (1999) 166 ALR 330
Paunovic (1990) 51 A Crim R 174
R v Mills [1998] 4 VR 235
R v Tait and Bartley (1979) 24 ALR 473
Radebe v R [2001] WASCA 254
Ryan v R [2001] HCA 21; (2001) 179 ALR 193
Sinclair (1990) 51 A Crim R 418
1 MALCOLM CJ: This was an application for leave to appeal against sentence. On 6 March 2001 the applicant was convicted in the Supreme Court on his plea of guilty to two counts, namely that:
1. On or about 2 November 2000 at Perth the applicant did without reasonable excuse, attempt to obtain possession of prohibited imports to which s 233B of the Customs Act 1901 (Cth) applied namely, narcotic goods consisting of a quantity of 3,4 Methylenedioxymethamphetamine (commonly called "Ecstasy"), being not less than the commercial quantity applicable to that narcotic substance, contrary to s 233B(1)(c) of the Customs Act 1901.
2. On or about 2 November 2000 at Perth the applicant did without reasonable excuse, attempt to obtain possession of prohibited imports to which s 233B of the Customs Act 1901 applied namely, narcotic goods consisting of a quantity of Cocaine, being not less than the trafficable quantity applicable to that narcotic substance, contrary to s 233B(1)(c) of the Customs Act 1901.
2 The quantity of Ecstasy referable to count 1 on the indictment was 5,533 tablets weighing in bulk 1.4887 kg containing 805.2 g pure MDMA. This was in excess of the commercial quantity of Ecstasy which is 0.50 kg: Sch VI to the Customs Act. The quantity of Cocaine the subject of count 2 was 500.9 g with a net purity of 131.7 g. This was in excess of the trafficable quantity of Cocaine which is 2.0 g: ibid. The maximum penalty in respect of count 1 was life imprisonment and in respect of count 2 was a fine of $100,000 or imprisonment for 25 years or both: s 235(2) of the Customs Act.
3 The essential facts were that a co-offender with the applicant, one Schwarz, brought the drugs into Australia and was detected upon arrival on 2 November 2000. He subsequently agreed to participate in a controlled delivery of inert substances substituted for the drugs. In accordance with instructions he had been given by or on behalf of the organiser of the importation in Indonesia, Mr Schwarz checked into a hotel in Como. He had been instructed that, upon checking in, he was to make a call to the organiser and ask for further instructions. He was asked by the person in Indonesia for his room number which he gave. He was then told that a person would attend his room some time before midday on that day and give him envelopes containing money in exchange for the drugs. The applicant attended at the hotel room later and received the bag containing the substituted inert substances from Mr Schwarz. He then made to leave the room and was arrested by Australian Federal Police Officers.
4 A second co-offender, one Smart, was arrested sitting in the applicant's sister's car outside the hotel. He had $10,688 in cash on him. The Crown case was that the $10,000 was to be paid to the co-offender Mr Schwarz.
5 The applicant pleaded guilty at the earliest opportunity to the indictment in its final form, following the withdrawal of two additional charges by the Crown at the election stage in the Court of Petty Sessions. The applicant had one prior conviction for assault occasioning bodily harm, which was accepted by the Court to be irrelevant for sentencing purposes.
6 The applicant's counsel told the Court that the applicant was to receive the sum of $2,000 from a person called Craig for collecting a package from the room. At the time of the offending, the applicant was in debt to the National Australia Bank in the sum of approximately $4,500. He undertook to pick up the package so that the money he received could be applied in reduction of the debt. At the time of going to the hotel room the applicant had a strong feeling that the package he was to collect would contain Ecstasy. He denied that he knew the package would also contain Cocaine or that he knew what quantities of drugs he had been sent to collect.
7 In the course of his sentencing remarks Scott J said:
"... not only were you involved in attempting to obtain the Ecstasy but also the Cocaine, which was part of the package which you were to take possession of. That, in my view, adds to the seriousness of your conduct."
8 In sentencing the applicant the learned Judge said that he considered the appropriate sentence on count 1 to be imprisonment for 10 years and on count 2 imprisonment for 5 years to be served cumulatively. His Honour then said that the sentence imposed upon count 2 had been reduced, taking into account the totality principle. A deduction of 31/2 years was made for the applicant's fast-track plea of guilty and because he accepted responsibility for his actions, which reduced the head sentence to 111/2 years. This reduction was effected by reducing the term of imprisonment on count 1 to 8 years and that on count 2 to 31/2 years to be served cumulatively. A single minimum term of 51/2 years was imposed in respect of the total of the head sentences. "That sentence" was ordered to commence on 6 March 2001, being the date on which the plea was entered and the applicant was taken into custody.
"1. The Learned Sentencing Judge erred in imposing an overall effective sentence which infringed the totality principle of sentencing.
Particulars
(a) Failing to order total concurrence in circumstances where the same actus reus gave rise to two separate offences.
2. Each of the sentences imposed upon the Applicant were [sic was] manifestly excessive in all the circumstances of the offence and of the Applicant.
Particulars
(a) Failure to give sufficient weight to the Applicant's youth, effective fast-track of plea of guilty, antecedents and character.
(b) Treating the Applicant's level of criminality and moral culpability too highly.
3. The Learned Sentencing Judge erred in failing to apply the provisions of sub-section 19(2) of the Crimes Act 1914 (Commonwealth) to the sentences imposed upon the Applicant."
10 It is convenient to deal with ground 3 first. Section 19(2) of the Crimes Act 1914 (Cth) provides that:
(a) a person is convicted of 2 or more federal offences at the same sitting; and
(b) the person is sentenced to imprisonment for more than one of the offences;
the court must, by order, direct when each sentence commences, but so that no sentence commences later than the end of the sentences the commencement of which has already been fixed or of the last to end of those sentences."
11 In the explanatory memorandum relating to the amendment of s 19 by which it took its present form, as a result of the enactment of the Crimes Legislation Amendment Bill (No 2) 1989 circulated by the then Attorney-General, it was stated that:
"This section deals with cumulative, partly cumulative and concurrent sentences of imprisonment. It will replace existing provisions contained in section 19 of the Principal Act. The existing section 19 only deals with cumulative sentences of imprisonment. It also does not allow a federal sentence to be partly cumulative on another federal sentence.
...
Subsection (2) applies to situations where a person is sentenced to imprisonment for more than one federal offence at the same sitting. It requires a court in such a case to direct that other sentences are to commence not later than the end of the one to commence first, ie the sentences may be concurrent, partly cumulative or cumulative."
12 It was submitted by senior counsel for the applicant that the learned Judge should have stipulated the specific date upon which the second and cumulative sentence was to commence. In response to a question how the order contemplated by s 19(2) should have been formulated, counsel said there should have been "a date direction". Asked what date should have been specified, counsel was unable to answer otherwise than in terms of the "date whereby the sentence less remissions would end" or the date on which he became eligible for parole in respect of the first sentence. Senior counsel conceded that he had not attempted to work out the date. The Court requested that junior counsel, Mr Tudori, calculate the relevant date. Unfortunately, at the time of writing, nothing further has been submitted.
13 While in this case the learned sentencing Judge did not specifically direct that the second sentence should commence from a particular day, in my opinion he clearly stipulated that the second sentence would be cumulative. In my view, questions of eligibility for parole apart, the only reasonable meaning which can be attributed to that stipulation is that the cumulative sentence would commence to be served on the day following the last day of the first sentence, ie, to commence not later than the end of the first sentence. Counsel for the respondent, however, relied on s 6(2) of the Sentence Administration Act 1999 (WA) which specifies when a cumulative term of imprisonment begins as follows:
"If a term is cumulative on one or more other terms then that term begins on the earliest date on which the prisoner could be released in relation to the last to be served of those other terms whether or not the release would otherwise be under -
(a) a parole order; or
(b) a recognizance release order, or a parole order, made under the Crimes Act 1914 of the Commonwealth."
In my opinion, it would be enough to specify that the sentence for the second offence would commence on the day on which the applicant became eligible for parole in respect of the first of the sentences imposed. Contrary to the submission made by senior counsel for the applicant, I do not consider that it is necessary for the sentencing Judge to specify the date as such, so long as the relevant date can be identified for the purposes of sentence administration.
14 In the present case, the learned sentencing Judge, as he was required to do, fixed a single non-parole period in respect of the two sentences pursuant to s 19AB(1)(d) of the Crimes Act. The period fixed was 51/2 years. The sentences were backdated to 6 March 2001, being the date on which the pleas of guilty were entered, which was also the date from which the applicant was in custody. In these circumstances it would be possible to calculate what proportion of the non-parole period was attributed to the first sentence and what proportion was attributed to the non-parole period of the second sentence. That would enable the date upon which the service of the second sentence would commence, namely on the day following the day on which the applicant had served that proportion of the single non-parole period as was attributed to the first sentence. Such calculations should have been provided to this Court by counsel for the applicant. In response to a request by the Court during the hearing, junior counsel for the applicant was asked to make the necessary calculations. The direction that the sentences should be served cumulatively and the order that the applicant would be eligible for parole in respect of such sentences would enable the date on which the applicant would become eligible for parole in respect of the first sentence to be identified. That date would be the date on which the applicant would commence to serve the second sentence. According to the calculations provided by counsel, which I consider to be correct, the sentence of 8 years should have been directed to commence on 6 March 2001 and the cumulative sentence of 3 years and 6 months should have been directed to commence on 5 July 2006. In the result, once the applicant had served 2 months of the second sentence, he would be eligible for parole in respect of both the sentences. This follows from the fact that in respect of the 8 year sentence the minimum term would be 5 years and 4 months.
15 In my opinion, there is no substance in ground 3.
16 Ground 1 contended that the learned sentencing Judge erred in imposing an overall effective sentence which infringed the totality principle of sentencing. Particular 1(a) asserted that the principle was infringed because the learned Judge failed to order total concurrence "in circumstances where the same actus reus gave rise to two separate offences".
17 The essence of the one transaction rule is that where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be concurrent rather than cumulative: D A Thomas, Principles of Sentencing (2nd ed 1979) at 53. In Brown (1982) 5 A Crim R 404 at 407 Forster CJ said that:
"When a number of offences arise from substantially the same act or a closely related series of occurrences, cumulative penalties should not be imposed."
See also Ruane (1979) 1 A Crim R 284 at 286 per Wallace J. In such a case, however, where cumulative sentences are imposed, there will not be a miscarriage of justice unless the total sentence is manifestly excessive and in breach of the totality principle.
18 It is also well-established that, when sentencing for multiple offences, a sentencing Judge may be required, first, to determine an appropriate sentence for each offence and then to consider questions of cumulation or concurrence as well as the application of the totality principle: Mill v The Queen (1988) 166 CLR 59 at 62 - 63 per Wilson, Deane, Dawson, Toohey and Gaudron JJ; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307 - 308 per McHugh J; and at 340 - 341 per Kirby J; and Pearce v The Queen (1998) 194 CLR 610 at [45] per McHugh, Hayne and Callinan JJ.
19 In the present case, in sentencing the applicant, the learned Judge, having referred to the facts and the submissions made on behalf of the applicant, acknowledged that the applicant was entitled to credit for pleading guilty on the fast-track system and accepting responsibility for his criminal conduct. The learned Judge also noted that another matter in his favour was his relative youth. The applicant was aged 22 at the time of the commission of the offence. His Honour went on to say:
"I also take into account the many character references presented on your behalf that speak highly of you. It is frequently the case in matters of this sort that persons who are well regarded in the community are selected as couriers. The reason is that they attract no suspicion. For that reason references do not carry the same weight as they would in relation to other offences.
Counsel for the Crown submitted that your involvement should be seen as equivalent to that of Schwarz. In my view, that is not so. Schwarz was responsible for bringing these illicit drugs into Australia while you had no direct involvement in that aspect of this illegal transaction. Your part was to collect the drugs from Schwarz and to facilitate the distribution of those drugs in this country by passing them on to Craig or disposing of them at his direction.
I have taken into account the authorities referred to both by your counsel and by the prosecutor which relate to similar quantities of ecstasy and the matters contained in section 16A(2) of the Crimes Act 1914. In this case, however, not only were you involved in attempting to obtain the ecstasy but also the cocaine, which was part of the package which you were to take possession of. That, in my view, adds to the seriousness of your conduct.
Would you please stand? For count 1 on the indictment, the attempt to obtain possession of ecstasy, the appropriate sentence is a term of 10 years' imprisonment, and for count 2 on the indictment, attempting to obtain possession of cocaine, the appropriate sentence is a term of 5 years' imprisonment cumulative. The sentence in relation to the cocaine offence has been reduced, taking into account the totality principle.
I deduct 3 and a half years because of your fast-track plea of guilty and because you accept responsibility for your actions. That reduces the head term to 11 and a half years. That can be achieved by reducing the term on count 1 to 8 years and count 2 to 3 and a half years cumulative. I fix a minimum term of 5 and a half years before you are eligible for parole.
Pursuant to the provisions of the Crimes Act, I am obliged to tell you that the service of this sentence will entail a period of imprisonment of not less than the nonparole period that I have fixed. If a parole order is made, a period of service in the community called the parole period will be required to complete the service of the sentence. If a parole order is made, that order will be subject to conditions and the parole order may be amended or revoked. If you fail without reasonable cause to fulfil those conditions, you are liable to serve the balance of the head term."
20 As I have previously mentioned, a direction was given that the first of the sentences commence from 6 March 2001 when the plea of guilty was entered.
21 It was submitted that the practice of determining an appropriate aggregate sentence for all offences and then fixing specific sentences for each separate offence so as to arrive at the appropriate aggregate was in error. It was submitted that the approach that ought to have been adopted by the sentencing Judge was to affix appropriate penalties for each of the offences and then, by orders effecting concurrency or cumulation, achieve the intended result of the total effective sentence. In my opinion, it is apparent from the approach adopted by the learned Judge that his Honour considered that the appropriate sentence for possession of the Ecstasy was imprisonment for 10 years, and for attempting to obtain possession of the Cocaine was imprisonment for 5 years. It is clear that the latter sentence was reduced on account of the totality principle, but was made cumulative. While the learned Judge did not indicate what the sentence would have been for the attempt in respect of the Cocaine, but for the application of the totality principle, it is apparent that the sentence of 5 years represented a substantial reduction, having regard to the range of sentences commonly imposed in such circumstances for the possession of Cocaine or the attempt to obtain possession of Heroin.
22 In Serrette v The Queen [2000] WASCA 405; (2000) 118 A Crim R 204 the offender pleaded guilty to the import into Australia of a trafficable quantity of Cocaine and also to being in possession of the Cocaine so imported. He had 1,431 g (equivalent to 925.4 g pure) of Cocaine. Concurrent terms of imprisonment for 10 years were imposed with a non-parole period of 6 years, after taking into account co-operation with the authorities. This represented a reduction of one-third from 15 years, so far as the head sentence was concerned. Kennedy J noted at 205 that the credit given for assistance given or provided was now enshrined in legislation: s 8(5) and s 37A of the Sentencing Act 1995 (WA) and s 21E of the Crimes Act 1914 (Cth). Kennedy J, after referring to Gallagher (1991) 23 NSWLR 220 at 227; 54 A Crim R 248 at 254 - 255 per Gleeson CJ, noted that where an offender is entitled to have assistance to the authorities taken into account, that will usually be on a number of grounds, some of which may overlap with other subjective matters to be taken into account in his favour. Kennedy J also said at 206 that any intervention by the Court of Criminal Appeal would amount to a mere substitution of the opinion of the appeal court for that of the sentencing Judge.
23 In Pearce v The Queen, supra, at [45] - [48] McHugh, Hayne and Callinan JJ said that:
"To an offender, the only relevant question may be 'how long', and that may suggest that the sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality (Mill v The Queen (1988) 166 CLR 59).
Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision (cf House v The King [1936] HCA 40; (1936) 55 CLR 499). It is, then, all the more important that proper principle be applied throughout the process.
Questions of cumulation and concurrence may well be affected by particular statutory rules (see Crimes Act, s 444(2) and (3); Sentencing Act 1989 (NSW), s 9; see also Sentencing Act 1991 (Vict), s 16). If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.
Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences (R v Lomax [1998] 1 VR 551 at 564, per Ormiston JA)."
24 It may be accepted that the approach, which ought to have been adopted by the sentencing Judge in the present case, was to fix appropriate penalties for both offences, then consider the application of the totality principle and, in particular, whether any adjustment needed to be made to either of the sentences imposed to achieve the total effective sentence which was consistent with the application of the principle. In my opinion, it is implicit that the learned Judge determined what he considered to be an appropriate sentence for the possession of Cocaine and then reduced that on account of the totality principle. To the extent there was an omission in the process, it was a failure to refer to the starting point or the sentence which would otherwise have been imposed, so that the reduction or discount on account of the totality principle was not articulated.
25 While the approach adopted by the learned Judge was not exactly in accord with principle, it does not necessarily follow that there has been a miscarriage of justice: Heryadi (1998) 98 A Crim R 578; and Kilner v R [1999] WASCA 189. It was also submitted on behalf of the applicant, however, that, in this case, a different sentence ought to have been passed, as the learned Judge had failed to give effect to the "one transaction" rule, which applies where the one act gives rise to more than one criminal offence. Reliance was placed on a further passage in the judgment of McHugh, Hayne and Callinan JJ in Pearce, par [40], namely:
"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common."
26 In my opinion, the application of that approach in the present case would obscure the fact that the applicant took possession of two separate parcels of two separate drugs. It was not a case where there were two offences where, for example, an act which was itself an offence was also an element of the second offence. There were two separate offences. There was no common element. The relevant circumstance was that two separate offences of possession and attempting to obtain possession of two different drugs occurred at the same time. In my opinion, this is not an example of the one act comprising two separate offences, but two separate acts, one of obtaining possession of Ecstasy and one of attempting to obtain possession of Cocaine.
27 In Heryadi, supra, the offender was convicted of the importation into Australia of a trafficable quantity of "Ecstasy" or MDMA and also a quantity of Cocaine. While the approach to the application of the totality principle by the sentencing Judge in that case did not conform to what was said by their Honours in Pearce, Ipp J (with whom the other members of the Court agreed) said at 582:
"While this method is not in accordance with the procedure described in D A Thomas, Principles of Sentencing: The Sentencing Policy of the Court of Appeal, Criminal Division (2nd ed 1979), pp 56-57 (referred to in Mill (1988) 166 CLR 59 at 63; 36 A Crim R 468 at 470), the approach adopted by his Honour was nevertheless designed 'to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved' per McHugh J in Postiglione [1997] HCA 26; (1997) 189 CLR 295 at 307; [1997] HCA 26; 94 A Crim R 397 at 406. McHugh J emphasised (at 308; 406) that 'the application of the totality principal [sic] ... requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged' (see also the remarks of Kirby J at 339 - 341; 432 - 435, and Jarvis (unreported, Court of Criminal Appeal, WA, No 13 of 1993, 14 June 1993). Such an evaluation is precisely what the learned sentencing Judge carried out. He attempted to ensure that the aggregate sentence passed should fairly and justly reflect the total criminality of the offender's conduct. In my opinion, he thereby fulfilled the requirements of the totality principle: Mill, Postiglione, Jarvis."
28 It was held that this approach accorded with the totality principle. As Ipp J said at 583:
"The individual sentences were part of what might be described as a technical exercise (carried out in the light of the particular circumstances) designed to arrive at an aggregate term of eight years imprisonment. In A-G v Tichy (1982) 30 SASR 84; 6 A Crim R 117 Wells J at 92; 125 noted that it was both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentencing should be ordered to be served concurrently or consecutively. As his Honour observed (at 93; 125):
'The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty.'
In Mill (at 63; 470) the High Court recognised that, where multiple offences had been committed, there were various means involving the application of the totality principle by which an appropriate sentencing result might be achieved. The particular technique adopted by the learned sentencing Judge fell into that category. See also Ryan [1982] HCA 30; (1982) 149 CLR 1 per Wilson J at 22 and per Brennan J at 22 - 23.
Accordingly, in the present case, the make-up of the individual sentences - and whether they were concurrent or cumulative - is not to the point. The true question for consideration on appeal is whether the aggregate sentence of eight years imprisonment was beyond his Honour's discretion."
29 The passage in Mill, supra, to which Ipp J referred was set out in Mill at 63 following which Wilson, Deane, Dawson, Toohey and Gaudron JJ said:
"Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect that a number of sentences are being imposed. Where practicable, the former is to be preferred."
30 In my opinion, their Honours did not suggest that, in a case where the preferred approach would have been practicable, the adoption of the alternative would necessarily disclose error. The only question would be whether, in the end result, the total sentence imposed was manifestly excessive so as to cause an injustice.
31 It is not altogether clear whether their Honours' joint judgment in Pearce was intended to stipulate that there was only one way in which the totality principle was to be applied. Assuming that it is, and there was an error in principle, I am of the opinion that the learned Judge was not bound to direct that the sentences imposed should be served concurrently or partly concurrently. The question is whether the sentences looked at individually or in their totality were manifestly excessive.
32 In Kilner v R, supra, it was contended that the sentencing Judge had failed to observe the principle stated by McHugh, Hayne and Callinan JJ in Pearce, supra. In that context, Ipp J said at [16]:
"It is important to understand the context in which the remarks of McHugh, Hayne and Callinan JJ in Pearce v The Queen were made. The High Court was there concerned with the issue of double jeopardy that arises when an offender is charged with two different offences on the same set of facts. The appellant had broken into the complainant's home and assaulted him. This led to him being charged with and convicted on one count of inflicting grievous bodily harm with intent and one count of breaking and entering into a dwelling house and inflicting grievous bodily harm. The offender appealed against the sentence imposed on the ground that the Court of Criminal Appeal had erred in holding that no double jeopardy was involved in the indictment and no double punishment was meted. The High Court found that the sentence for each count contained an element of punishment for the grievous bodily harm inflicted on the complainant. Consequently, the offender was effectively punished twice for the one act."
"The proposition that, in a situation where double jeopardy or punishment may arise, the appropriate sentence for each offence must be determined before considering questions of cumulation, concurrency and totality, has been followed in this Court in cases such as Scott v The Queen, unreported; CCA SCt of WA; Library No 990004; 15 January 1999, Holland v The Queen [1999] WASCA 43, Smedley v The Queen, unreported; CCA SCt of WA; Library No 990146; 23 March 1999."
After referring to the reference by their Honours that the only relevant question of an offender may be "how long", his Honour continued at [18] - [19]:
"With respect, it seems to me that these remarks are intended to apply only to circumstances where the approach in question is 'likely to mask error.' This was emphasised by the remarks of Kirby J in Pearce v The Queen (at [83]) namely:
'This Court is not concerned generally with the components of the sentence or the way it was structured to deal cumulatively with the several episodes dealt with in the separate indictments. The only issue raised for us relates to the way in which the complaint of double jeopardy was dealt with at the trial.'
The practice of first fixing an appropriate overall sentence for a series of offences has long been known in this State (it has indeed recently been applied by this Court in The Queen v Griffiths [1999] WASCA 23). As is pointed out in Pearce v The Queen, this practice is inappropriate in cases of double jeopardy (and also where offences overlap). It may also result in entirely inappropriate offences [sic sentences] being given for individual offences. When carefully applied in suitable circumstances, however, the practice has much to commend it. In my respectful opinion Pearce v The Queen does not stand for the proposition that in every case where the practice is adopted an error in sentencing automatically occurs. Of course, where the practice does result in error, the sentences will be set aside. But, in my view, the mere adoption of the practice, in circumstances where the sentences imposed are within discretion, is unexceptionable. The following remarks by White J in Musarri v The Queen, unreported; CCA SCt of WA; Library No 980662; 17 November 1998 are apposite in this regard.
'The present case does not involve the imposition of sentences on separate charges involving the same act. Each offence was discrete and there is, therefore, in the present case, no question of the applicant having been punished twice for a single act. It is true that the learned sentencing Judge ordered that certain of the sentences imposed by him were to be served concurrently, but that did not, in my opinion, involve any error of the kind referred to in Pearce v The Queen.' "
33 In the present case, as I have said already, the importation of two separate parcels of drugs was part of one transaction, although it involved separate offences in respect of each drug. Similarly, when the applicant took possession of the Ecstasy and what he thought was Cocaine, but which was only an attempt because of the substitution, he committed two offences, although they were part of the one transaction. It was submitted on behalf of the applicant that the learned sentencing Judge, having found that the one package contained Cocaine as well as Ecstasy, took the view that the seriousness of the offence was increased. It was, at least in part, for that reason that he ordered complete cumulation of both sentences.
34 It was submitted that the learned Judge was in error because he did not address in his reasons for decision whether the applicant had been aware of the exact nature of the drugs. It was conceded before his Honour that the applicant had "a strong feeling" that the package contained Ecstasy. There was no such concession in respect of the Cocaine. It was submitted in this Court, however, that his Honour did not attempt to avoid duplication of punishment for the same acts and circumstances which he was bound to do: cf Pearce at [124] per Kirby J. As has been seen in Heryadi, supra, the sentencing Judge treated the matter as one importation of a basket of illegal drugs and considered that each offence should be treated in the same way. In that case the true question was whether the aggregate sentence was beyond discretion.
35 It was contended that in the present case the learned sentencing Judge was in error because the sentences were imposed as if the counts referred to separate transactions, but the one transaction rule should have been applied: cf Pieri v The Queen [2001] WASCA 357. In that case at [36] Einfeld AJ referred to Principles of Sentencing (2nd ed 1979) at 53 where D A Thomas said that:
"Where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive."
See also Brown (1982) 5 A Crim R 404 at 407 per Forster CJ.
36 In my opinion, the question in each case is whether the offences arise "out of the same facts" so that they should be concurrent, or whether they are "entirely distinct" so that they should be cumulative: The Queen v Carey (1975) 11 SASR 575 at 577 per Bray CJ.
37 In this Court in Ruane (1979) 1 A Crim R 284 at 286, Wallace J said:
"Whilst it is true that where several offences are tried together and arise out of what one may call the same transaction, it is a good working rule that the sentences imposed for those offences should be made concurrent, the reason therefore is that if a man is charged with several serious offences arising out of the same situation and consecutive sentences are imposed, the total very often proves to be much too great for the incident in question."
"The essence of the one transaction rule thus appears to be that consecutive or cumulative sentences are inappropriate where all the offences taken together constitute a single invasion of the same legally protected interest."
39 In the present case, there were two separate offences which were committed, although in a real sense there was only one transaction of importation. It involved two separate quantities of two separate drugs. It necessarily involved two separate offences. In my opinion, in such a case the question then becomes simply whether the aggregate sentence was manifestly excessive. This brings into play the totality principle. The question in the present case is whether the total of the two sentences was excessive for the criminality involved: Ugle v Wells [1999] WASCA 21; (1999) 106 A Crim R 452 at 457 per White J. In this context, the decision of the High Court of Australia in Wong v The Queen [2001] HCA 64; (2001) 76 ALJR 79 is of significance.
40 In Wong the Court of Criminal Appeal of New South Wales allowed appeals by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against sentences imposed by Judge Davidson in the District Court, following their conviction, after trial, for being knowingly concerned in a heroin importation: R v Wong; R v Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340. The question in the High Court was whether the Court of Criminal Appeal was in error in concluding that the sentences imposed in the District Court were manifestly inadequate and in fixing heavier sentences: Wong v The Queen, supra, per Gleeson CJ at [1].
41 In that case the two appellants had been sentenced in the District Court to 12 years' imprisonment with a non-parole period of 7 years. On appeal the Court of Criminal Appeal quashed each sentence and imposed sentences of 14 years with a non-parole period of 9 years.
42 In Wong, as in the present case, the Court of Appeal of New South Wales was exercising federal jurisdiction pursuant to s 68 of the Judiciary Act 1903 (Cth) with respect to offences against the Customs Act 1901 (Cth). In such a case relevant state laws were to be applied with respect to the hearing and determination of appeals, subject to s 68. In particular, it was held by the High Court that the state laws were to be applied, in the exercise of the judicial power of the Commonwealth, as far as they were consistent with Ch III of the Commonwealth Constitution.
43 In Wong the Court of Criminal Appeal had delivered a "guideline" judgment in respect of the sentencing of persons knowingly concerned with the importation of narcotics. The guidelines were determined primarily on the basis of existing sentencing patterns and were intended to apply to couriers and persons low in the hierarchy of the importing organisation. However, as the court considered the appellants to be "major participants" in the importation of narcotics, they held that the newly formulated guidelines did not apply in the present case. The Court of Criminal Appeal stated that the guidelines were "indicative only" and "not binding in any formal sense, but that such a statement was not conveyed to the reader that the guidelines may be ignored in determining future sentences. The High Court held by a majority comprising Gaudron, Gummow and Hayne JJ that the "guideline judgment" was not part of the order of the Court of Criminal Appeal. Consequently, it was not directly subject to appellate review by the High Court in the exercise of the jurisdiction conferred by s 73 of the Constitution: Mellifont v Attorney General (Qld) [1991] HCA 53; (1991) 173 CLR 289.
44 While the Court of Criminal Appeal was unanimous in its opinion that the sentences imposed by Judge Davidson were manifestly inadequate, the Court was divided on the question whether there should be a guideline judgment. Spigelman CJ, who delivered the leading judgment, thought it was. Mason P, Sperling and Barr JJ agreed. Simpson J, however, thought that it was undesirable for two reasons. First, they related to persons at the lower level in the scheme of importation than the two offenders who had been sentenced. Secondly, the examination of sentencing patterns showed that sentencing was already consistent, and at a suitable level. However, Simpson J agreed with the sentences proposed by Spigelman CJ. The grounds of appeal in the High Court were only concerned with the guidelines.
"Such was the concentration upon the guidelines in this Court that there was no examination, either in the written submissions or oral argument, of the reasons for sentence given by Judge Davidson. Yet, in order to satisfy this Court that the appeals to it should be allowed, and the decision of the Court of Criminal Appeal set aside, the appellants must show that the Court of Criminal Appeal was in error in relation to a matter about which the Court was unanimous ... A successful attack upon the decision to publish guidelines does not necessarily mean that the decision to uphold the prosecution appeal was affected by error. Accordingly, it is necessary to examine the reasons of the Court of Criminal Appeal for its reasons to allow the appeal under s 5D, and the role of the guidelines in those reasons."
46 Gleeson CJ, who considered the appeals should be dismissed, said at [7] that while most sentencing of offenders was a matter of discretionary judgment, reasonable consistency in sentencing is a requirement of justice. Such consistency was recognised as a legislative objection by s 8 of the Judicial Officers Act 1986 (NSW). Gleeson CJ at [8] also made the point that one of the objectives of giving the Crown a right of appeal against sentence was to secure consistency in sentencing: Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 306 per McHugh J; and see R v Osenkowski (1982) 30 SASR 212 at 213 per King CJ. In the former case McHugh J referred to the role of prosecution appeals when a sentencing judge imposed a sentence "definitely below the range of sentences appropriate for the particular offence". Gleeson CJ also said in Wong at [9] that:
"Whether one talks in terms of a range of appropriate sentences or like Canadian courts in terms of a starting point for consideration, appellate courts, both for the purposes of making and explaining their own decisions and for the guidance of primary judges, may find it useful to refer to information about sentences that have been imposed in comparable cases, and to indicate, subject to discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence."
47 The Chief Justice went on to refer to the fact that this had been undertaken more often and with greater specificity in some jurisdictions than in others, such as in the United Kingdom, but it had also been done in Canada, Hong Kong and New Zealand. While his Honour considered at [32] that there was a valid criticism to be made of the guidelines in relation to couriers that related to the possible use of the guidelines in future cases, it "had no bearing on the present case".
48 The majority of Gaudron, Gummow and Hayne JJ said at par [49]:
"The relevant State provisions engaged by s 68 of the Judiciary Act are, then, those mentioned by the Court of Criminal Appeal - ss 5D and 12 of the Criminal Appeal Act. Nothing in either of those sections gives the Court of Criminal Appeal any jurisdictional power other than the jurisdiction in the matter or matters before the Court and powers relating to the decision of that matter or those matters. Accordingly, the Court have neither jurisdiction nor power to prescribe what sentences should be passed in future matters. That being so, no separate question about disconformity between the state legislation picked up and applied by s 68 of the Judiciary Act and Ch III arises."
49 Kirby J at [136] held that the Court of Criminal Appeal, in exercising federal jurisdiction over the appellants pursuant to the Criminal Appeal Act, s 5D, had no power to proceed in the manner it did because it was incompatible with the federal legislation creating the offence, and the sentencing legislation enacted by Parliament. The majority also held that the publication of a table of future punishments was neither to vary the sentence nor to pass a new sentence. It was not within the powers of the court to publish such a table because it was not directed to quelling the only dispute which constituted the matter before the court. That being so, no separate questions about disconformity between the state legislation picked up and applied by the Judiciary Act and Ch III arose.
50 Of particular significance was the approach adopted by the majority to the so-called "two-stage" approach to sentencing as against what has been described as the "intuitive synthesis" approach. In pars [74] - [78] their Honours said:
"[74] ... no less importantly, the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be 'increment[s]' (R v Wong [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 365 [141]) to or decrements from, a pre-determined range of sentences. That kind of approach usually referred to as a 'two-stage approach' to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted.
[75] It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say 'may be' quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an 'instinctive synthesis' [R v Williscroft [1975] VicRp 27; [1975] VR 292 at 300 per Adam and Crockett JJ. See also R v Thompson (2000) 49 NSWLR 383]. This expression is used not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.
[76] In R v Thompson [(2000) 49 NSWLR 383 at 396 - 411 [54] - [113]] Spigelman CJ reviewed the state of authorities in Australia that deal with the 'two-stage' approach of arriving at a sentence, in which an 'objective' sentence is first determined and then 'adjusted' by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to the authorities. As the reasons in Thompson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach [the footnote refers to a significant number of cases commencing with R v Geddes (1936) 36 SR (NSW) 554 at 555 per Jordan CJ and concluding with Verschuren v The Queen (1996) 17 WAR 467]. In this Court, McHugh and Hayne JJ, in dissenting opinions in AB v The Queen [(1999) [1999] HCA 46; 198 CLR 111 at 121 - 122 [15] - [18] per McHugh J; at 156 [115] per Hayne J] expressed the view that the adoption of a two-stage approach to sentencing was wrong. Kirby J expressed a contrary view [AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at 148 - 149 [99] - [100]]. We consider that it is wrong in principle. The nature of the error can be illustrated by the approach adopted by the Court of Criminal Appeal in these matters. Under that approach, the Court takes, for example, the offender's place in the hierarchy and gives that a particular significance in fixing a sentence but gives the sentencer no guidance, whatever, about whether or how that is to have some effect on other elements which either are to be taken into account or may have already been taken into account in fixing the guideline range of sentences. To take another example, to 'discount' a sentence by a nominated amount, on account of a plea of guilty, ignores difficulties of the kind to which Gleeson CJ referred in R v Gallagher [(1991) 23 NSWLR 220 at 228] when he said that:
'It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.'
So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.
[77] The core of the difficulty lies in the complexity of the sentencing task. A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence to which the offender stands to be sentenced and the personal history and circumstances of the offender. Very often there are competing and contradictory considerations. What may mitigate the seriousness of one offence may aggravate the seriousness of another. From these the sentencing judge must distil an answer which reflects human behaviour in the time or monetary units of punishment.
[78] Numerical guidelines either take account of only some of the relevant considerations or would have to be so complicated as to make their application difficult, if not impossible [see, eg, the cubic representation of such a framework in Lovegrove, 'Writing Quantitative Narrative Guideline Judgments: A Proposal' [2001] Criminal Law Review 265 at 279; cf Alschuler, 'The Failure of Sentencing Guidelines: A Plea for Less Aggregation' (1991) 58 University of Chicago Law Review 901; Freid: 'Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers' (1992) 101 901; Freid: 'Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers' (1992) 101 Yale Law Journal 1681]. Their application cannot avoid outcomes which fail to reflect the circumstances of the offence and the offender (with absurd and unforeseen results) if they do not articulate and reflect the principles which will lead to the just sentencing of offenders whose offending behaviour is every bit as diverse as is their personal history and circumstances."
51 In pars [79] - [83] their Honours went on to return to the question of the jurisdiction and power to issue prescriptive guideline tables of sentences. Absent specific statutory provisions, such as that contained in s 143(1) of the Sentencing Act 1995 (WA) which empowers the Full Court or the Court of Criminal Appeal to give "... guideline judgment containing guidelines to be taken into account by courts sentencing offenders", the majority concluded that the Court of Criminal Appeal of New South Wales had no jurisdiction or power to make sentencing guidelines. The basis for this was that s 5D(1) of the Criminal Appeal Act limited the Court's powers to "vary the sentence and impose such sentence" on the particular offenders as was proper. It had no jurisdiction in respect of sentences passed or to be passed on others: see par [84]. As their Honours said further at [84]:
"The publication of a table of future punishments was neither to vary the sentence that was passed or to pass a new sentence. It is not within the powers of the Court to publish such a table because, to adopt constitutional terms, that is not directed to the quelling of the only dispute which constitutes the matter before the Court. Nothing in s 12 of the Criminal Appeal Act gave the Court any relevant additional power."
52 The position in Western Australia is clearly different, so far as offences against the laws of Western Australia are concerned. Section 143 of the Sentencing Act expressly confers on this Court the jurisdiction and power to give a guideline judgment. In the light of the decision of the majority in Wong, the position now appears to be that the relevant power may not be exercised in respect of an offence against Commonwealth law. In Serrette it was submitted that in order to maintain uniformity this Court should now depart from the range of sentences which had been previously set and follow the range in Wong. As Pidgeon J pointed out in Serrette at [12] the range of sentences imposed in this State with respect to the possession of Heroin with intent to sell had recently been summarised by Ipp J in Quach v The Queen [1999] WASCA 210. In that case the applicant had been sentenced to a term of imprisonment of 15 years for possession of 653 g of Heroin with intent to sell or supply. The reasons for judgment in that case were published some two months prior to the decision of the Court of Appeal of New South Wales in Wong. It was noted that the reason why consideration was given to a guideline judgment was because of difference of opinion and conflicting sentencing decisions in New South Wales.
53 In Western Australia this Court had followed an earlier decision of the Court of Appeal of New South Wales in Ferrer-Esis (1991) 55 A Crim R 231 which was seen as a precedent in relation to a range of sentences for Cocaine and other drugs. It was referred to in Foster and D'Anno (1992) 59 A Crim R 14 when it was considered that a sentence of 14 years was an appropriate starting point for the importation of 204.5 g of pure Heroin.
54 In Quach the Crown had submitted that this Court should follow the decision of the Court of Appeal in Wong. While this Court has recognised that courts throughout Australia should adopt a common approach to the sentencing of offenders against laws of the Commonwealth: Medina (1990) 108 FLR 288 at 292 per Malcolm CJ, one difficulty with the guideline in Wong was that it suggested a range of sentences lower than that previously set in Ferrer-Esis: Serrette at [15] per Pidgeon J. His Honour noticed a further difficulty with the decision in Wong in that its application was limited to "couriers and persons low in the hierarchy of the importing organisation". As Pidgeon J said at [16] - [17]:
"I would see a further difficulty in respect of Wong and Leung and that is, it would be of limited application as it refers to 'couriers and persons low in the hierarchy of the importing organisation'. Care is needed in so categorising offenders by reason of what was said by the High Court in Olbrich [1999] HCA 54; (1999) 199 CLR 270; 108 A Crim R 464 where it was said that the characterisation of an offender as a courier or a principal in determining his relative culpability must not obscure the assessment of what the offender did (at 469[19]).
The act proscribed by the offence carried out by the applicant in the present case, as set out in the first count of the indictment, is an act of importation, that is, landing the prohibited goods in Australia. The applicant did just that and is accordingly a principal offender. An offender so convicted might be able to plead in mitigation that he or she succumbed to the temptation for a modest fee to carry a parcel into Australia. This might be seen as mitigation for the offence committed, but the onus would be on the applicant to show that these circumstances are proved on the balance of probabilities (Storey [1998] 1 VR 359; (1996) 89 A Crim R 519; Morrison [1998] QCA 162; [1999] 1 Qd R 397; (1998) 103 A Crim R 460)."
55 In the present case the applicant was an intermediate courier who was to collect the drugs from the importer and pass them on to another in the chain for a significant fee. In my view, the sentence imposed in respect of the first count relating to the Ecstasy was well within the ambit of the sentencing discretion in this case having regard to the nature of the drug and all the relevant circumstances, including the range of sentences previously imposed for such an offence: cf Quach v The Queen, supra. While the learned Judge did not mention a starting point in respect of the Cocaine, one can imagine that it could well have been of the order of 8 - 10 years. In my view, given all the surrounding circumstances and taking account of the quantity involved, a total sentence for the two offences of 15 years did not infringe the totality principle.
56 For these reasons ground 1 fails. In the result, while I would grant leave to appeal, I would dismiss the appeal.
57 WALLWORK J: I agree with the reasons for judgment of the Chief Justice and to the conclusions reached by his Honour.
59 WHITE AUJ: I agree with the reasons for judgment and the conclusions reached by the Chief Justice and have nothing further to add.
# Johnson
The Queen \[2002\] WASCA 102
(1982) 30 SASR 84
(1999) 166 ALR 330
(1979) 24 ALR 473
(2001) 179 ALR 193
(1988) 166 CLR 59
(1997) 189 CLR 295
(1998) 194 CLR 610
(1991) 23 NSWLR 220
(1936) 55 CLR 499
(1982) 149 CLR 1
(1975) 11 SASR 575
(2001) 76 ALJR 79
(1999) 48 NSWLR 340
(1991) 173 CLR 289
(1994) 181 CLR 295
(1982) 30 SASR 212
(2000) 49 NSWLR 383
(1996) 17 WAR 467
(1999) 198 CLR 111
(1990) 108 FLR 288
(1999) 199 CLR 270