Court of Appeal (WA)|2004-09-14|Before: McKechnie J, Miere J, Jenkins J, Scott J

Johnson v The Queen [2004] WASCA 207 (14 September 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : JOHNSON -v- THE QUEEN [2004] WASCA 207

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Sentencing - Possession of ecstasy and cocaine - One parcel two packets - Extent to which common elements present - No new principles

Customs Act 1901 (Cth), s 233B(1)(c)

Respondent : Commonwealth Deputy Director of Public

Attorney-General (SA) v Tichy (1982) 30 SASR 84

Johnson v The Queen [2002] WASCA 102; (2002) 26 WAR 336

Johnson v The Queen [2004] HCA 15; 205 ALR 346

Mill v The Queen (1988) 166 CLR 59

Attorney-General v Tichy (1982) 30 SASR 84

Brittain v The Queen [2001] WASCA 92

Mill v The Queen (1988) 166 CLR 59

Mustafa v The Queen [2002] WASCA 357; (2002) 27 WAR 73

1 I deal first with a matter raised at the commencement of the appeal by counsel for the respondent who said:

"...those who instruct me have asked me to raise the query as to whether this court is indeed seized with the matter and if it is, I don't make any applications. It's something that I raise with this court."

2 Counsel was referring to the fact that the Court as presently constituted to hear this appeal is a different coram from that constituted in Johnson v The Queen [2002] WASCA 102; (2002) 26 WAR 336. Indeed, two of the Judges who constituted that coram have since retired. The remitter from the High Court is a remitter to the Court of Criminal Appeal. It is not a remitter to designated Judges and the actual constitution of the Court at any one time is immaterial.

3 On 2 November 2000 the appellant was arrested and eventually pleaded guilty to an indictment containing two counts that:

1. On or about 2 November 2000 at Perth the appellant 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 appellant 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.

4 On 6 March 2001 the appellant pleaded guilty and was sentenced to a term of 8 years imprisonment in respect of count 1 and 31/2 years in respect of count 2, to be served cumulatively, making a total of 111/2 years. A single minimum term of 51/2 years was set which is 48% of the total term. The appellant appealed against the overall sentence and although granted leave to appeal his appeal was dismissed on 1 May 2002: Johnson v The Queen [2002] WASCA 102; (2002) 26 WAR 336.

5 The appellant successfully appealed to the High Court: Johnson v The Queen [2004] HCA 15; 205 ALR 346. On 30 March 2004 the High Court made the following orders:

2. Set aside the order made by the Court of Criminal Appeal of Western Australia on 1 May 2002 dismissing the appeal.

3. Remit the proceedings to the Court of Criminal Appeal for consideration and determination in accordance with the reasons of this Court.

6 The facts and sentences are set out fully in the earlier judgments of the Court of Criminal Appeal, Malcolm CJ at [2] - [6]; in the High Court, Gummow, Callinan and Heydon JJ at [7] - [8]; and in the judgment of Le Miere J. Consequently, it is unnecessary to set them out at any greater length than to explain my reasons.

7 A number of areas previously in contention have been resolved by the decision of the High Court.

8 I consider that grounds 2 and 3 of the original grounds of appeal have been determined. The significant area left unresolved and remitted is the issue as to the commonality of elements of the offences and the application of the totality principle to relevant facts fully and correctly stated. The particular issue which has been remitted is ground 1 of the amended grounds:

"1. The Learned Sentencing Judge erred in imposing an overall effective sentence which infringed the totality principle of sentencing.

(a) Failing to order total concurrence in circumstances where the same actus reus gave rise to two separate offences."

9 Mr Grace QC, who appeared for the appellant, conceded, with propriety, that 10 years was the appropriate sentence for the overall criminality. I do not think that Mr Grace was conceding that 10 years was an appropriate sentence. Rather, I take his concession to be that 10 years reflected the overall criminality before matters of mitigation were taken into account.

10 In the course of the plea in mitigation, counsel for the appellant put to the Judge:

"...he denies ever having any thought or knowledge of two things, (1) the quantities that he was collecting. That really is neither here nor there, because he accepts that the feeling and obviously the price he was going to be given, that of course it was an illegal transaction or an illegal activity that he was doing. The second thing he denies is that although he had a feeling it was ecstasy he had no knowledge or no idea that in fact there was cocaine in that parcel."

11 Relevant to this appeal, in the course of his sentencing remarks, the Judge said:

"Your counsel has stressed that you did not know the quantity of drugs that you were to obtain, and I accept that as a fact, but nonetheless you were prepared to take whatever the quantity was and facilitate the release of that quantity into the community in exchange for $2000."

12 The Judge described the appellant's role as follows:

" ... 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."

13 That finding of the Judge is consistent with the plea of guilty to the two offences. Under the Customs Act, s 237, as it applied at the time of the offences, an attempt to commit a substantive offence, equivalent to commission of the substantive offence, carried the same penalty.

14 The Judge was correct to conclude that the appellant was prepared to take whatever the quantity was and facilitate the release of that quantity into the community, to which I add, knowing that whatever the appellant was doing involved an illicit substance.

15 I also agree with the Judge that attempting to obtain cocaine as part of the package added to the seriousness of the conduct. This is because the appellant's part in the movement of the drugs involved an attempt to possess two discrete drugs, each of which is a serious illicit drug. The pleas of guilty reflect this.

16 The Judge concluded that the appropriate starting point for sentencing was 10 years for count 1 (ecstasy) and 5 years for count 2 (cocaine). He reduced the cumulative starting sentence of 15 years by 31/2 years because of the fast-track plea of guilty and the acceptance of responsibility and totality.

17 The issue which arises from ground 1 is the extent to which the commonality of the offences ought to have been taken into account. Unless the facts and circumstances of separate offences on an indictment are scrutinised there is a danger that a person will be doubly punished for the one criminal act: Pearce v The Queen (1998) 194 CLR 610 at 623.

18 Although the Judge was right to conclude that the attempt to possess cocaine made the entire criminal conduct more serious, the imposition of a wholly cumulative sentence for count 2 failed to take account of the elements of commonality in what was substantially one criminal event. As Gummow, Callinan and Heydon JJ pointed out at [33]:

"It is true that the appellant pleaded guilty to two offences, but they had much in common: one inducement, one payment for performance, one occasion, one package and one receipt of it by the appellant. This commonality did require that careful regard be had, in deciding the appellant's appeal, to the totality principle."

19 Consideration of those matters requires the conclusion that the sentence imposed for count 2 (cocaine) should not have been made entirely cumulative with the sentence imposed for count 1 (ecstasy).

20 I accept that the Judge was fully aware that in imposing a sentence of 111/2 years he was sentencing the appellant for the entire criminality of his actions. However, by failing to differentiate the facts of the two offences and identify the common elements, the structure of resultant sentence is in error and cannot stand. I would allow the appeal and re-sentence the appellant.

21 I have read the sentencing submissions at trial and the pre-sentence report and the character references submitted.

22 I accept that the sentence of 8 years on count 1 (ecstasy) was appropriate and, in the circumstances, a term of 31/2 years is within an appropriate range of sentences for count 2 (cocaine).

23 I take account of the need to reflect the serious nature of the offence in count 2 and also the need to ensure the appellant is not doubly punished for the acts listed above which are common to both counts.

24 Mr Grace submitted that the commonality was such that each sentence should be ordered to be served concurrently. Mr Dembo for the respondent submitted that, after restructure, the sentence should remain at 111/2 years.

25 The offences have many common elements so that a wholly cumulative sentence is inappropriate. Count 2, however, reflects a further criminality, despite the common elements, so that a wholly concurrent sentence is also wrong. Balancing these two matters, I conclude that an appropriate overall sentence should be achieved by making the sentence for count 2 partly cumulative on the sentence for count 1. Apart from a last look at the result, the totality principle has little operation in this case.

26 The pleas of guilty acknowledge an intention to possess two illicit drugs. The appellant can claim no credit for the fact that the offences were attempts only because of the intervention of the authorities in replacing the drugs with inert materials. There is to a degree a separate and distinct criminality in the attempt to possess two packets of illicit drugs notwithstanding the common element. Principles of general deterrence require that persons who attempt to possess, or do possess, parcels of illicit drugs for trafficking within the community, cannot expect that their indifference to the type or amount of drugs contained within the parcel will be irrelevant to the ultimate sentence imposed.

(2) that the order that the sentence on count 2 be served cumulatively upon the sentence on count 1 be set aside;

(3) that the order that there be a non-parole period of 51/2 years be set aside.

(1) that the sentence on count 2 commence on 6 March 2001;

(2) that the sentence on count 1 commence after service of 1 year of the sentence on count 2;

(3) that there be a single non-parole period of 41/2 years.

29 LE MIERE J: The appellant appeals against his sentence. On 6 March 2001 the appellant was convicted in the Supreme Court on his plea of guilty to two counts, namely that:

(1) On or about 2 November 2000 the appellant, without reasonable excuse, attempted to obtain possession of prohibited imports to which s 233B of the Customs Act 1901 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 of the Customs Act 1901.

(2) On or about 2 November 2000 at Perth the appellant, without reasonable excuse, attempted 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.

30 The appellant was sentenced to 8 years' imprisonment on count 1 and 31/2 years on count 2 to be served cumulatively. A single minimum term of 51/2 years was imposed.

31 The appellant applied for leave to appeal against sentence. The Court of Criminal Appeal granted leave to appeal but dismissed the appeal.

32 The appellant appealed to the High Court. The High Court allowed the appeal and remitted the proceeding to this Court for consideration and determination in accordance with the reasons of the Court.

33 This Court now considers the appellant's appeal in accordance with the reasons of the High Court.

34 On or about 2 November 2000 Jurgen Helmut Schwarz arrived in Australia at the Perth International Airport from Indonesia. He was found to have strapped to his torso 26 metres of 1-centimetre diameter plastic tubing which contained a large amount of ecstasy tablets. Beneath that tubing he was wearing corsets which contained cocaine powder. Schwarz informed the Australian Federal Police that he had been instructed to go to a hotel in Como and book into a room. Upon checking into the hotel, Schwarz was to make a call to the organiser of the importation of the narcotics in Indonesia and was to ask that person for further instructions. AFP officers substituted inert tablets and powder for the ecstasy tablets and cocaine powder and accompanied Schwarz to the hotel. He was booked into room 307. Schwarz then made a call to the organiser in Indonesia and asked that person for further instructions. The person in Indonesia asked Schwarz for his room number to which he replied "room 307". The person in Indonesia then told Schwarz that a person would attend his room and would give him envelopes containing money in exchange for the drugs.

35 At about 10.45 am the appellant entered the foyer area of the hotel. The appellant went to room 307 of the hotel. Schwarz and the appellant had a conversation during which Schwarz handed to the appellant a bag containing the inert tablets and powder that had been substituted by the AFP officers for the ecstasy tablets and cocaine powder. The appellant said that he would go downstairs and bring the money up shortly. The appellant made to leave the room at the hotel at which time the AFP officers arrested him.

36 The 26 metres of plastic tubing contained 5533 ecstasy tablets weighing gross 1488.7 grams. Of the bulk of 1488.7 grams there was 805.2 grams of pure MDMA (ecstasy). The cocaine within the packets within the corsets weighed in bulk 500.9 grams with a net purity of 131.7 grams.

37 The trafficable quantity of ecstasy is 0.5 grams. The commercial quantity is 500 grams. Thus the quantity of ecstasy in this case is in excess of a commercial quantity, the maximum penalty for which is life imprisonment. The trafficable quantity of cocaine is 2 grams. The commercial quantity is 2000 grams. Thus, the quantity of cocaine in this case is in excess of a trafficable quantity but less than a commercial quantity. The maximum penalty is 25 years' imprisonment.

38 During an interview with the Australian Federal Police, the appellant stated, amongst other things, the following:

• He was offered $2000 by a stranger named Craig at a music store to pick up a package from the room.

• He did not know whom he was supposed to drop the package off to. He did not ask any questions.

• He had no means of identifying Craig including telephone numbers or vehicles.

• He did not really want to think about what was inside the package that he was to collect - he needed the money.

39 In the course of the subsequent plea in mitigation the appellant's counsel informed the sentencing Judge, amongst other things:

• This Craig person had offered the appellant $2000 to collect a parcel.

• The appellant had no thought or knowledge of the quantity of drugs that he was collecting.

• The appellant had a feeling it was ecstasy but he had no knowledge or no idea that there was cocaine in the parcel. What led to this feeling is that he was given some crushed ecstasy tablets by this person Craig.

The sentence imposed by the sentencing Judge

40 The sentencing Judge made the following remarks in imposing sentence:

"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 31/2 years because of your fast-track plea of guilty and because you accept responsibility for your actions. That reduces the head term to 111/2 years. That can be achieved by reducing the term on count 1 to 8 years and count 2 to 31/2 years cumulative. I fix a minimum term of 51/2 years before you are eligible for parole."

41 The appellant successfully applied for leave to appeal to the Court of Criminal Appeal. The appellant's amended grounds of appeal were:

"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 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 subs 19(2) of the Crimes Act 1914 (Cth) to the sentences imposed up the applicant."

42 The Court of Criminal Appeal unanimously rejected each of the appellant's grounds of appeal and dismissed the appeal.

43 The appellant put forward a number of grounds in his appeal to the High Court.

44 In a joint judgment Gummow, Callinan and Heydon JJ rejected a submission by the appellant based upon an alleged difference in approach in Mill v The Queen (1988) 166 CLR 59 and Pearce v The Queen (1998) 194 CLR 610.

45 The High Court found that the Court of Criminal Appeal had erred in not having proper regard to the commonality of the offences, and in accordingly not applying the totality principle to the relevant facts fully and correctly stated.

46 Gummow, Callinan and Heydon JJ held that although the appellant had shown error on the part of the Court of Criminal Appeal, it does not necessarily follow that there was any error on the part of the sentencing Judge, either in his application of the principles stated in Pearce or otherwise. Gleeson CJ agreed with Gummow, Callinan and Heydon JJ that the errors identified in the reasoning of the Court of Criminal Appeal do not necessarily require the conclusion that there was error on the part of the sentencing Judge. Kirby J differed from the conclusion of the remainder of the Court. His Honour concluded that the sentence imposed by the sentencing Judge was excessive. His Honour said, at [45], that had the course described in Pearce been taken by the sentencing Judge it would have demonstrated the common elements in the two offences to which the appellant had pleaded guilty. That fact would either have suggested (as his Honour would have been inclined to favour) that the sentences should have been structured to be served concurrently because parts of the criminal enterprise were common to the offences with which the appellant was convicted or, at the very least, if cumulative sentences were ordered, it would have ensured that a proper, that is, substantial, allowance was made to reflect common factual features of the two offences.

47 This Court must now determine whether the sentencing Judge erred and if so the sentence to be substituted for that imposed by the sentencing Judge. On the hearing of the appeal counsel for the appellant submitted, in effect, that the issue for determination by this Court is whether the learned sentencing Judge had erred in failing to find that the appellant was engaged upon one multi-faceted course of criminal conduct and ordering the sentences imposed upon him to be served concurrently. That is essentially ground 1 of the appeal referred to above. The appellant's approach is consistent with the orders and judgments of the High Court.

48 In Pearce v The Queen (1998) 194 CLR 610 McHugh, Hayne and Callinan JJ, in their joint judgment, discussed whether the appellant could be or was doubly punished. Pearce had been indicted upon charges which included having maliciously inflicted grievous bodily harm with intent to do the victim grievous bodily harm, contrary to s 33 of the Crimes Act 1900 (NSW), and with having broken and entered that victim's dwelling house and, while in it, inflicting grievous bodily harm on him, contrary to s 110. The charges arose out of a single incident in which Pearce broke into the victim's home and beat him, causing life-threatening injuries. Pearce was sentenced to 12 years' imprisonment on each count, to be served concurrently.

"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. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done: it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts."

50 Their Honours said that it was clear in that case that a single act (the appellant inflicting grievous bodily harm on his victim) was an element of each of the offences under s 33 and s 110. Their Honours continued:

"The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the enquiry is not to be attended by 'excessive subtleties and refinements'. It should be approached as a matter of common sense, not as a matter of semantics."

51 In the decision of the High Court in this case Gleeson CJ cited with approval an extract from the judgment of Wells J in Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 92 - 93. In that judgment Wells J said that a prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. Gleeson CJ concluded:

"Ultimately, justice requires due consideration of whether, and to what extent, the appellant "was truly engaged upon one multi-faceted course of criminal conduct", and whether the sentences imposed properly reflected the outcome of that consideration."

52 In my view, the appellant was truly engaged upon one multi-faceted course of criminal conduct. In the High Court judgment in this case, Gummow, Callinan and Heydon JJ said, at [33]:

"It is true that the appellant pleaded guilty to two offences, but they had much in common: one inducement, one payment for performance, one occasion, one package and one receipt of it by the appellant."

53 In my view, the learned sentencing Judge erred in not treating the appellant as having been engaged upon one multi-faceted course of criminal conduct and not imposing wholly or partly concurrent sentences.

54 In his sentencing remarks, the learned sentencing Judge stated that the appellant's counsel had stressed that the appellant did not know the quantity of drugs that he was to obtain. The appellant's counsel also submitted to the sentencing Judge that the appellant's criminal conduct should be regarded as one transaction because the appellant had gone to the hotel to collect one item and it was irrelevant that there were two items there. In his sentencing remarks, his Honour said:

"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."

55 The appellant was convicted of attempting to obtain cocaine as well as attempting to obtain ecstasy. The appellant has a conviction for attempting to obtain cocaine as well as for attempting to obtain ecstasy irrespective of whether the sentences are to be served consecutively or cumulatively. The sentencing Judge ordered the sentences to be served cumulatively. That order over-punishes the appellant by punishing him twice for two offences which have many common elements.

56 In relation to the offence of attempting to obtain possession of cocaine, the learned sentencing judge fixed on a starting sentence, before any reduction for the appellant's fast-track plea of guilty and because he accepted responsibility for his actions, of 5 years imprisonment. His Honour stated that that sentence was reduced, taking into account the totality principle. In my view, in adopting that approach his Honour failed to have sufficient regard to the fact that the two offences had much in common, as observed by Gummow, Callinan and Hayne JJ. The appellant was engaged upon one multi-faceted course of criminal conduct. The failure of the learned sentencing Judge to give proper consideration to the common elements of the two offences resulted in the sentence being excessive.

57 In determining the appropriate sentence for each offence, the learned sentencing Judge had regard to the nature and circumstances of the offence, the appellant's fast-track plea of guilty, and the character and antecedents of the appellant. In my view, the sentences imposed by the learned sentencing Judge for each offence, that is, 8 years imprisonment and 31/2 years imprisonment respectively, are appropriate.

58 The sentence of 8 years' imprisonment for the ecstasy-related offence is within the acceptable range, having regard to the objective and subjective circumstances of the particular offence and the mitigating considerations identified by the learned sentencing Judge. Neither the appellant nor the respondent contended otherwise.

59 The learned sentencing Judge considered the appropriate sentence for the offence of attempting to obtain possession of cocaine was 5 years' imprisonment before taking into account mitigating factors. His Honour would have started with a higher sentence but adopted the starting term of 5 years "taking into account the totality principle". His Honour did not explain what he meant by "the totality principle" in that context. I consider that the sentence of 31/2 years' imprisonment, after reduction for mitigating factors, lies within the acceptable range, having regard to the objective and subjective circumstances of the particular offence and the mitigating factors. A substantial reduction should be allowed for the appellant's fast-track plea of guilty. The appellant was a low-level courier, in that his part in the enterprise was to collect the drugs from one courier and pass them on to another person. The quantity of cocaine involved was a low-level trafficable quantity. A sentence of between 5 and 7 years, before any reduction for mitigating factors, is within the range of commonly imposed sentences for offences of the kind committed by the appellant. Taking all matters into account, I am of the view that a term of 31/2 years for the offence of attempting to obtain possession of cocaine lies within the acceptable range, having regard to the objective and subjective circumstances of the particular offence and the mitigating factors referred to by the learned sentencing Judge. Another Judge may have started with a longer term than 5 years. On the other hand, another Judge may have accorded greater weight to mitigating factors, including the fast-track plea of guilty, and made a greater reduction on that account. Reductions of between 25 per cent and 35 per cent are commonly given.

60 The next question is whether the sentences should be wholly or partly concurrent.

61 In Pearce the Court considered that the individual sentences imposed were flawed because they doubly punished the appellant for a single act, namely the infliction of grievous bodily harm. McHugh, Hayne and Callinan JJ went on to say at [49]:

"Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count."

62 In this case, approached as a matter of commonsense, not as a matter of semantics, there were no real differences in the conduct which was the subject of punishment on each count. On the other hand, to make the sentences wholly concurrent would fail to have regard to the total criminality involved in the appellant's conduct.

63 The appellant did not know what drugs, or quantity of drugs, that he was to collect from the hotel. The type and quantity of drugs involved was a matter of chance, so far as the appellant was concerned. Nevertheless, the appellant's conduct constituted two separate offences and the quantity and different drugs involved are relevant to the harm or potential harm to the community and cannot be ignored for sentencing purposes.

64 The element of chance in the quantity and drugs that the appellant attempted to gain possession of supports the imposition of concurrent sentences. Consecutive sentences should not normally be imposed for one multi-faceted course of criminal conduct. It may be said that the fact that it turned out that multiple drugs were in the parcel to be collected by the appellant is not of itself a reason for imposing consecutive sentences.

65 One counter-argument to the imposition of wholly concurrent sentences is that to do so reduces the deterrent effect of the law. In this case it may be said that it gives no disincentive for an offender to agree to collect and deliver a basket of unknown drugs. Furthermore, to make the sentences wholly concurrent would fail to have regard to the total criminality involved in the appellant's conduct in that the appellant would serve no longer term of imprisonment for attempting to obtain possession of the cocaine than if he had not done so.

66 In my view, the proper course in this case is to make the sentences partially cumulative to reflect the total criminality of the appellant's conduct. I would order that the sentence on count 1 commence after service of 1 year of the sentence on count 2.

67 The remaining question is the fixing of a non-parole period. The effect of ordering the sentence on count 1 to commence after service of 1 year of the sentence on count 2 is that there is an effective total sentence of 9 years. I would fix a single non-parole period of 41/2 years.

(2) The order that the sentence on count 2 be served cumulatively upon the sentence on count 1 be set aside.

(3) The order that there be a non-parole period of 51/2 years be set aside.

(a) the sentence on count 2 commence on 6 March 2001.

(b) the sentence on count 1 commence after service of 1 year of the sentence on count 2;

69 JENKINS J: I have had the advantage of reading, in draft, the reasons of McKechnie and Le Miere JJ. Their Honours are in agreement that the sentencing Judge erred in failing to identify and give appropriate consideration to the common aspects of the two offences when deciding that the sentence he imposed for count 2 should be served cumulatively on the sentence he imposed for count 1. They are also in agreement that upon re-sentencing the appropriate orders result in an aggregate sentence of 9 years' imprisonment with a single non-parole period of 4-1/2 years. Whilst there are some differences in their Honours reasons for these conclusions, I do not consider that they are inconsistent in any respect. I am therefore able to agree that for the reasons they give this appeal should be allowed. As to the Court's final orders, I agree with McKechnie J.

Johnson v The Queen [2004] WASCA 207

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Judgment (127 paragraphs)

Johnson v The Queen [2004] WASCA 207 (14 September 2004)

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Cases Cited (5)