Court of Appeal (WA)|2001-02-06|Before: Kennedy J, Pidgeon J, Murray J

Koushappis v The Queen [2001] WASCA 18 (6 February 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : KOUSHAPPIS -v- THE QUEEN [2001] WASCA 18

Criminal law and procedure - Sentencing - Two offences of selling heroin to another, one offence of possessing heroin with intent to sell or supply it to another - Quantities of heroin sold weighing 0.09 grams and being of 53 to 56 per cent purity - Offender apprehended when in process of disposing of heroin in his possession so that its quantity and quality were not capable of being measured - Very poor antecedents - Previous convictions for commercial trafficking - Effective sentence of 6 years' imprisonment reduced to 4-1/2 years

Dinsdale v The Queen [2000] HCA 54; (2000) 74 ALJR 1538

Jackson v The Queen, unreported; CCA SCt of WA; Library No 8752; 8 March 1991

Langridge v The Queen (1996) 17 WAR 346

Pop v The Queen [2000] WASCA 283

R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998

Rose v The Queen [2000] WASCA 238

Troy v The Queen, unreported; CCA SCt of WA; Library No 980068; 13 February 1998

Watson v The Queen [2000] WASCA 119

Woods v The Queen (1994) 14 WAR 341

1 KENNEDY J: On 30 May 2000, the applicant was convicted after a trial by jury on two counts of selling a quantity of heroin to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981, and one count of possession of heroin with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act. The first count involved 0.04 grams of heroin of 56 per cent purity and the second count involved 0.05 grams of heroin of 53 per cent purity. From those sales, the applicant derived the sum of $300. The separate sales the subject of counts 1 and 2 were made to an undercover police officer at the home of the applicant. The folds containing the heroin, which were the subjects of the sales, were taken by the applicant from a black canister in his home. The third count arose out of a search of the applicant's home, in the course of which the applicant was found endeavouring to flush down the toilet 23 folds of heroin from the same black canister from which the folds had been sold to the undercover police officer. During the search, an amount of $3,635 was found on the applicant's premises. Many small plastic "deal" bags were also discovered.

2 Both the quantity and the purity of the heroin involved in count 3 were unascertainable, because the contents of the folds had been contaminated by water. Counsel appearing for the applicant at the time of sentencing argued that the quantity and purity of this heroin could be arrived at by extrapolation from the weight of the heroin involved in the first two counts. One of the difficulties with that suggestion, however, is that one fold was the subject of count 1 and two folds were the subject of count 2, and there was therefore no consistency in the weights of the heroin contained in the folds. In any event, as counsel for the applicant on his sentencing pointed out, "all that is mere assumption".

3 The applicant does not himself have a drug habit, and it is apparent that his dealing in heroin was being undertaken solely to secure financial rewards. He was clearly involved in commercial trafficking in heroin, which, in his Honour's view, made the offences more serious.

4 The applicant was aged 48 at the time of his sentencing. He had a young son living with him when the offences were committed. At the time of sentencing, the child was living with the applicant's mother, and it appears that there was an ongoing dispute with his former spouse regarding the custody of that child. The applicant was not in employment, but was receiving a supporting parent's allowance of $500 per fortnight. There was no suggestion that the child would not be adequately cared for while the applicant was in custody.

5 The applicant has an extremely bad record, which included a conviction for rape in 1981. In September 1987 he had convictions for possessing heroin with intent to sell or supply it, and for selling or supplying heroin. In December 1987, he had convictions for possessing heroin with intent to sell or supply it and, in August 1995, he had a conviction for possessing amphetamine with intent to sell or supply it. He also had a substantial number of other convictions, which clearly indicated that he had no regard for the observance of the law or for the rights of other people. As the learned sentencing Judge pointed out, the previous sentences imposed upon the applicant had not served to curb his activities as a drug trafficker.

6 On each of counts 1 and 2, the learned sentencing Judge sentenced the applicant to a term of 4 years' imprisonment, to be served concurrently with each other and with the sentence of 6 years' imprisonment which his Honour imposed upon the applicant in respect of count 3. He directed that the sentences should be backdated to 17 December 1999. Although his Honour regarded the applicant as a marginal candidate for parole, he nevertheless made an order for his eligibility for parole.

7 The proposed grounds of appeal, as amended, are as follows:

"1. The learned sentencing Judge erred in failing to:

(a) make any or any adequate findings of fact, and

(b) give any or any adequate reasons

in respect of the sentences of imprisonment imposed on the applicant.

Particulars

(i) The learned sentencing Judge failed to make any factual finding in respect of the quantity or purity of the drugs involved in count 3.

(ii) The learned sentencing Judge failed to give reasons for the sentence imposed on count 3, in particular the "starting point" adopted for the offence and where the offence fell in the scale of offences of its type.

2. The learned sentencing Judge erred in imposing sentences that were manifestly excessive in all the circumstances of the case.

(a) The sentences were excessive having regard to the broad range of sentences approved by this Court for offences of a similar nature and were accordingly outside a broad discretionary range of appropriate sentences.

(b) Despite the virtual absence of any mitigating factors the sentences were manifestly excessive in all the circumstances of the case."

8 In respect of the complaint that the learned sentencing Judge failed to make any, or any adequate, findings in respect of the quantity or purity of the drugs involved in count 3, having regard to the fact that it was the conduct of the applicant himself which prevented the police from ascertaining the quantity or purity of the heroin which had been in the folds prior to the applicant attempting to flush them away, this contention is, to say the least, ambitious. The learned sentencing Judge was quite right in saying that it was not known what quantity the applicant had in his possession when the police raided his house. There was no requirement for him to speculate as to the quantity and quality of the heroin. Indeed, nothing put before us indicates to me that there were any facts upon which the learned sentencing Judge could properly have based the findings which the applicant claims should have been made.

9 In relation to the complaint that the learned sentencing Judge failed to give any, or any adequate, reasons for the sentence imposed on count 3, as Malcolm CJ pointed out in R v Nevermann (1989) 43 A Crim R 347, at 350: "It is not necessary for a full or detailed statement of reasons to be given in every case. ... The reasons may be stated shortly, without being developed in any detail." And that is what occurred in this case. There were no mitigating factors to be taken into account by his Honour. In particular, there were no pleas of guilty, which could have led to a substantial reduction in the sentences. Senior counsel for the applicant himself conceded that there were "virtually no mitigating factors in this case", and he did not seek to draw to our attention any such factors, as could have existed. The "starting point" referred to in the proposed ground of appeal was therefore, necessarily, the "finishing point".

10 There was little to be gained in this case from citing sentences which have been imposed in other cases for the possession and sale or supply of heroin. In particular, it is not helpful to cite the sentences imposed upon first offenders in a case concerning repeat offenders. There is no set tariff, as the circumstances of each case vary so greatly. There is, as the grounds of appeal correctly asserted, a broad range of sentences. It must also be borne in mind that decisions of the Court of Criminal Appeal declining to interfere with a sentencing Judge's discretion or the sentences which it may impose following successful Crown appeals do not necessarily provide a valuable indication of the appropriate sentences at first instance.

11 The applicant's record of previous convictions for similar offences was highly relevant in this case. The position with respect to the use to be made of prior convictions is conveniently set out in D A Thomas, Principles of Sentencing, 2nd edn (1979), at 197. The learned author wrote:

"It has been argued that the maximum length of a tariff sentence is governed by the nature of the offence for which it is imposed. The fact that an offender has a substantial record of previous convictions does not justify the imposition of a sentence above the level appropriate to the kind of offence he has committed, although an offender with no previous convictions, or only a few, may expect his sentence to be reduced below that level to reflect his good, or relatively good, character. The differential which will normally be observed when offenders with different records are sentenced for similar offences is not the result of a progressive aggravation of the sentence beyond the level fixed by reference to the gravity of the offence. The imposition of longer sentences as a criminal record is extended reflects a progressive loss of credit until the offender has exhausted all the mitigating effect of good character and arrived at the point where he is exposed to the full length of the sentence appropriate to his offence."

12 This principle is reflected in s 7(2)(b) and (c) of the Sentencing Act 1995, which provides that an offence is not aggravated by the fact that the offender has a criminal record, or a previous sentence has not achieved the purpose for which it was imposed. Aggravating factors are defined in s 7(1) of the Act as factors which, in the court's opinion, increase the culpability of the offender insofar as an offender's criminal record is concerned.

13 These provisions do not, in my opinion, impinge upon what was said by the majority of the High Court in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, in which emphasis is placed upon the necessity for a sentencing Judge not to impose a penalty which is disproportionate to the gravity of the offence under consideration. At 477, Mason CJ, Brennan, Dawson and Toohey JJ said:

"There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties."

14 The applicant deliberately participated in the heroin trade purely for personal commercial gain. He must have appreciated the harmful consequences which would inevitably proceed from his actions. It remains necessary for the courts to make it absolutely clear that those who trade in illegal drugs which have such a terrible impact upon the lives of so many members of this community can expect to receive very substantial sentences. Although, in my opinion, the sentences imposed by the learned sentencing Judge were severe, and at the very top of the appropriate range of sentences, they are not such as to justify this Court's interference on the ground of appealable error. The observations of the

High Court in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, at 671 - 672, are applicable. Accordingly, while I would grant the applicant leave to appeal against his sentences, I would dismiss his appeal.

15 PIDGEON J: I agree with the reasons of Kennedy J that the appeal should be dismissed.

16 In this case the sentencing Judge (Scott J), following a trial, reached the view that the offences for which he was sentencing were a commercial trafficking in heroin and he said that this made it more serious than the quantities involved.

17 I consider it was open on the evidence to reach this view.

18 On 9 November 1998 on two occasions the applicant sold a small quantity of heroin. He was selling these from a bulk, particulars of which are not known as he was destroying the bulk when the police raided his house. There was also in the house many small plastic deal bags. Although the applicant was on a supporting parent's allowance and had not been in work, he was in possession of a substantial sum of money. His previous record is consistent with his being a drug trafficker. In 1987 he was convicted of three separate offences of selling heroin and received a total sentence of 4 years imprisonment. When he had served this, he was again convicted in 1995 of possessing amphetamine with intent to sell and received a term of 2 years imprisonment.

19 I agree with the observations of Kennedy J that it is not open to the applicant, in the circumstances of this case, to complain against the failure to make findings as to purity, nor would I see purity as playing a significant part in a case such as this where the applicant is selling the heroin on the street. It was said in La Rosa v The Queen, unreported; CCA SCt of WA; Library No 960628; 31 October 1996 that the amount of pure drug alone is not necessarily a dominant factor in determining uniformity. A larger quantity with a low concentration could well have the potential to affect more users, and that large quantities of heroin of low purity have great potential to do harm. When in a case such as this an offender is selling the drug on the street, it is the quantity of the product he is selling which is of significance.

20 Once his Honour found, as I consider he was entitled to find, that the applicant had engaged in commercial trafficking in heroin, then I consider it was open to impose the sentences he did. The maximum penalty is 25 years and the clear intent of the legislation and the policy of sentencing is that there must be a deterrent sentence aimed to eradicate trading of this

type. As this policy has been made clear, and as the maximum sentence is one of 25 years, it could not be said that an overall sentence of 6 years is excessive. I would dismiss the appeal.

21 MURRAY J: I have had the advantage of reading in draft the reasons for decision published by Kennedy J. I respectfully agree with his Honour that the first ground upon which the application proceeded is without merit.

22 As to the second ground I respectfully agree with the observation of Kennedy J that the overall term of imprisonment imposed in this case was severe. The question, however, is whether the sentences in their aggregate are so manifestly too severe as to establish that the exercise of sentencing discretion has miscarried, particularly when one has regard to other similar cases and what the particulars of the ground describe as the "broad discretionary range of appropriate sentences" which other cases indicate should be imposed.

23 The difficulty of course is that when an application for leave to appeal by a convicted person is dismissed, the judgment of the court does no more than confirm that appellable error has not been established in all the circumstances of the case. So it is those cases where an appeal by a convicted person succeeds and the Court of Criminal Appeal proceeds to re-sentence the convicted person which provide most guidance, as well as those cases, still comparatively rare, where guideline judgments are given. Where a Crown appeal against the inadequacy of a sentence succeeds, the principle of double jeopardy associated with such appeals will have caused the Court of Criminal Appeal to moderate so far as it may the severity of the sentences it imposes. Such an appeal therefore may do no more than establish what in the particular circumstances of the case may be considered to be the lower end of the appropriate range of sentences. Further, the primary difficulty in the search for a tariff emerging from decided cases is the diversity of circumstances surrounding the commission of the offence and personal to the offender, both aggravating and mitigating in their effect upon the gravity of the punishment properly to be imposed.

24 In argument for the applicant, reliance was principally placed upon the unsuccessful Crown appeal in R v Akers & Ors, unreported; CCA SCt of WA; Library No 920080; 11 February 1992 and particularly upon the general discussion of sentencing in such cases by Malcolm CJ, with whom Pidgeon and Seaman JJ agreed. The applicant also relied upon the observations made in the judgment of Ipp J in Quach v The Queen [1999]

WASCA 210, and we were referred to other cases, the most recent of which was the decision of the CCA in Smith v The Queen [2000] WASCA 243, which was delivered on 31 August 2000.

25 My reading of the cases to which we were referred, given the limited utility of that exercise, has reinforced my view that the sentences imposed in this case were too severe. The three offences were committed on the one day. There were the two separate sales which were counts 1 and 2 on the indictment. The possession with intent offence, which was count 3, was committed later when the police raided the house and found the applicant flushing what were clearly accepted to be folds of heroin down the toilet. I agree with Kennedy J that all that can be said is that the quantity of heroin involved in this offence and its purity could not be established. All that appeared clearly was that whatever the quantity and purity was, the applicant had prepared it in 23 folds for individual sales. In the circumstances it was appropriate that the sentences imposed for the three offences of which the applicant was convicted should be served concurrently.

26 I respectfully agree that the applicant could advance nothing to mitigate punishment. His criminal history showed that he was a recidivist offender with no respect for the law. Despite that, his Honour did not consider that the point had been reached where eligibility for parole should be denied. It was proper that the applicant should be sentenced upon the basis that the offences before the court were committed by one who trafficked in heroin for financial gain, but the extent of his commercial activity of that kind could not be established. As I have said, the quantity of the drug the subject of this commercial activity was not known and nor was it known whether it was part of a larger operation or whether the applicant was a regular or an occasional drug trafficker.

27 Having regard to the limited information available to the sentencing Judge, I consider that the sentences of 4 years imprisonment for counts 1 and 2 and 6 years imprisonment for count 3 were individually and in their aggregate, although to be served concurrently, manifestly excessive. In my respectful opinion, for count 3, the offence of possession with intent, no more than 4-1/2 years imprisonment could be justified having regard to the limited information available. As to counts 1 and 2, although I note the degree of purity of the heroin involved, the sales were of relatively small amounts and in my opinion, these offences would be properly punished by the imposition of sentences of 2-1/2 years imprisonment. I would not, of course, interfere with the parole eligibility order or the direction that the sentences be served concurrently. The sentencing Judge backdated the sentences to 17 December 1999 and it is from that date that the sentences I propose aggregating a term of 4-1/2 years' imprisonment should be served.

28 In the result I would grant leave to appeal and allow the appeal. I would quash the sentences passed at trial and in lieu thereof, impose the sentences and make the orders to which I have referred above.

Koushappis v The Queen [2001] WASCA 18

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Judgment (55 paragraphs)

Koushappis v The Queen [2001] WASCA 18 (6 February 2001)

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