Miller v R [1999] WASCA 66

Respondent : Acting Director of Public Prosecutions

La Rosa v R, unreported; CCA SCt of WA; Library No 960628; 13 October 1996

Rawcliff v R, unreported; CCA SCt of WA; Library No 960073; 20 February 1996

Vodanovic v R, unreported; CCA SCt of WA; Library No 960056; 9 February 1996

1 PIDGEON J: This is an application for leave to appeal against a sentence of seven years imprisonment with eligibility for parole imposed on the applicant by his Honour Judge O'Sullivan following the applicant's conviction by the jury of a charge of possessing a quantity of methylamphetamine with intent to sell it or supply to another.

2 The ground of appeal is that the sentence imposed was manifestly excessive and the learned sentencing Judge failed to give any or sufficient weight to the following:

(b) the applicant has no relevant prior convictions.

(c) the limited involvement in the commission of the offence by the applicant."

3 The thrust of the submissions on behalf of the applicant under the head of his personal circumstances are that the applicant has suffered a number of severe head injuries which have caused a psychological condition affecting his intelligence and judgment.

4 The applicant has at all times denied committing the offence and the known information in respect of it is the evidence given at the trial. This evidence showed that the applicant, when arrested at about 7.40 pm of 12 June 1996, had in his possession 454 grams of methylamphetamine of a purity of six per cent. He was in the process of selling it to an undercover officer for an amount of $56,000.

5 The circumstances which led to the undercover officer making an approach to the applicant were that the Bureau of Criminal Investigation Squad was informed that a drug deal was to occur near Lawley's Bar in Beaufort Street, Mount Lawley on the evening of 12 June 1996. The surname of the suspect given to the squad was La Bianca. A squad of four police officers under Senior Constable Donnelly was given the task of keeping La Bianca under observation from about 4pm of 12 June until the intended sale took place. In addition, an undercover officer was assigned to make contact with the informer. He was to accompany the informer to the anticipated place of sale, and if a person came forward offering to sell the product, he was to show him an amount of $58,000 as the intended price. The person proposing to deliver the product would be arrested without the money being handed over.

6 The undercover officer made contact with the informer and received certain information from him while, at the same time, Constable Donnelly and the officers with him kept la Bianca under observation. Constable Donnelly kept the undercover officer informed of the results of the observations of La Bianca and the undercover officer informed Constable Donnelly of the information received from the informer. By this means the officers received further information of the proposed sale and when it was intended to take place.

7 The informer, having been spoken to by the undercover officer, later came under the notice of Constable Donnelly and his team. This team had arrived at the Inglewood Hotel at 4.19 pm. Ten minutes later they saw the informer enter the bar and, shortly after that, he was followed by La Bianca who went up to the informer and spoke to him. A little later La Bianca left the hotel and went to a Sigma sedan motor vehicle parked outside the hotel and he reached through the passenger door in the vicinity of the glovebox. La Bianca then returned to the hotel and the officers then saw another male person enter the bar and speak to the informer and La Bianca.

8 They ascertained that this person was the applicant who was known to one of the constables, but not to Constable Donnelly or the undercover officer. This was the first time it was realised that the applicant may be involved in the transaction. It was ascertained that the applicant was the registered owner of the Sigma motor vehicle. The applicant left the hotel and drove away in the Sigma and was followed by Constable Donnelly. He was seen to be driving in an erratic fashion and at speed and the constable lost sight of him but later saw the vehicle in the car park at the Cash Converters Store in Beaufort Street near Fifth Avenue. The applicant appeared to be purchasing something from Cash Converters. The applicant left Cash Converters and drove back towards the Inglewood Hotel and he was seen to be looking back over his shoulder at Constable Donnelly's car. The applicant left the Inglewood Hotel driving the Sigma on his own and drove to Lawley's Bar in Beaufort Street. He alighted from the car and went to its boot and opened it. He closed the boot and then went to the driver's door and opened it. He took off his jacket and placed it inside the vehicle. He then locked the vehicle and entered the bar at 5.50 pm. Some hour and a half later at 7.35 pm both the applicant and La Bianca were seen to leave Lawley's Bar and walk down Grosvenor Street towards the car park. La Bianca stopped at the corner of Grosvenor Street while the applicant walked to the Sigma which was approximately 20 metres further on. At this time the informer's utility was seen to arrive in which were travelling both the informer and the undercover officer. The applicant then went to the driver's door of the Sigma and retrieved his jacket. He then went to the boot of the car and took from it a striped plastic bag. At this time La Bianca was standing on the corner of the car park some 25 metres away. Two minutes later the undercover officer and the informer alighted from their utility and walked towards the applicant. The officers then witnessed the transaction and arrested both the applicant and La Bianca. I shall describe the transaction as it was outlined by the undercover officer, but before doing this I shall refer to his evidence as to what he did that afternoon.

9 He had earlier in the day spoken to the informer and obtained from him La Bianca's photograph. He again spoke to the informer at about 4.30 pm. He met him again at about 6.30 pm, at the Inglewood Hotel. The undercover officer, in the meantime, had received briefings from the other police officers and his controller. He initially thought the target to watch was La Bianca, but at a subsequent briefing he was told that the applicant had come into the picture and may be the person to watch. The undercover officer had originally been driving in police vehicles, but the informer drove him to the place of contact. When the undercover officer alighted near Lawley's bar he was aware that La Bianca was nearby. The plan was for himself and the informer to walk to where La Bianca was. The utility was parked in a car park south of Lawley's Tavern and he and the informer walked up the hill towards the tavern. He had received information that both La Bianca and the applicant were at the tavern, but he was not sure whether he would be meeting in the tavern or outside. On his approach to the tavern he saw La Bianca standing outside smoking a cigarette and about 25 metres away he saw the applicant with a multicoloured plastic bag in his hand. He had never met the applicant before, but the informer identified the applicant to him. He walked up to where the applicant was standing and his evidence was, "There was a short introduction where was exchanged 'hellos' basically and the applicant said, Do you want to see the gear'." The undercover officer replied, "No, not here, in your vehicle, in your car."

10 They both then proceeded to and entered the Sigma which was parked at the rear of Lawley's Bar. The undercover officer sat on the passenger side and the applicant on the driver's side. The applicant then opened the multicoloured bag which in turn contained another plastic bag. Inside that bag was an amount of white powder. The officer said that the applicant said to him, "Do you want a taste?" The undercover officer said he did not as he had a sample. The undercover officer then said to him, "You stay here and I will go and get the money." The undercover officer then left the vehicle and walked back to the utility which was in one of the car parks to the south of where the Sigma was parked. He arrived at the utility, opened it and obtained the money from where it was hidden inside. He then noticed the applicant walking through the car park towards him still in possession of the multicoloured bag. The officer was by that time holding the money which was inside a shoebox. The applicant said, "Where's the money?" The officer replied, "I have got it here - I think you should count it." The officer said that there was a bit of "to and froing", about whether the applicant wanted to count it or not. The other officers then arrested the applicant. The undercover officer picked up the informer and drove away from the scene in the utility.

11 The applicant said that he owned the Sigma car, but as he lost his licence through driving under the influence of liquor, he decided to sell it. Some two weeks before his arrest he asked La Bianca to try and sell it for him. On 11 June, the day before the alleged offence, he had an argument with the person with whom he was living and he was required to leave that residence. He therefore spent the night with Mr Roger Kerr who worked for Telecom. In exchange for that he told Kerr that Kerr could use the car until La Bianca was able to sell it. The applicant planned to stay in a cheap hotel so he booked in the Main Street Motor Lodge in Osborne Park for that evening. He paid for the room for a week. At the end of that period he planned to fly to Sydney to see the Interdominian trotting race.

12 The following morning he settled in at this motel room. He rang La Bianca's wife to see if La Bianca had sold the car. If it was not sold, then he intended that Mr Kerr could use it. At a quarter to twelve he went to the Osborne Park Hotel and placed a bet on two doubles. La Bianca arrived about 45 minutes later. La Bianca told him that he had not sold the car, but he introduced the applicant to a person the applicant knew only as Ronnie who said he was in touch with a possible buyer. Ronnie took the car and returned with it at about 2.00 pm o'clock and said that the proposed buyer was not home and that he could not find him. The applicant remained at the Osborne Park Hotel "punting". At 3.30 pm La Bianca wanted to use the applicant's mobile phone to ring Ronnie. La Bianca said that Ronnie had met up with the person who wished to buy the car. That person was at the Inglewood Hotel with Ronnie. The applicant took possession of the Sigma and there was a suggestion that they go to the Inglewood Hotel. The applicant said he wished to return to the motel where he was staying in order to get some clothes. He went back to that motel, got some clothes, threw them into the back of the car and then, with La Bianca, drove back to the Inglewood Hotel. He also had a betting ticket to collect at the TAB. He then drove the Sigma to the Inglewood Hotel with La Bianca as a passenger. Their intention was to see if Ronnie was there with the proposed purchaser of the car. He went into the hotel and saw La Bianca standing with a girl and a baby near the fireplace. A short time later Ronnie came out of the toilet. The applicant discussed the car with the girl. He then left saying to the girl that he would see her later. He said his intention was to collect the dividends from his betting tickets. He went to Cash Converters and bought a watch as he did not have one. He then went to the TAB to collect his dividend. He left the TAB and went back to the Inglewood Hotel to see if La Bianca was still there. He asked La Bianca if he would like to go to Lawley's Tavern in Mount Lawley and La Bianca replied that he would not as he had to see some other people at the Inglewood Hotel. The applicant said that his reason for going there was that he had met a girl a couple of weeks earlier and thought she might still be there. He agreed that he arrived at Lawley's Bar at 5.50 pm. He denied opening the boot and said he could not do so because it had "a bodgy lock on it". He took his jacket off as it was warm, threw it on the back seat and locked the car. He then entered the tavern and spoke to the proprietor, Mr Sam Bruno, and told him that he had dropped La Bianca off at the Inglewood Hotel. He said that at about three minutes past seven La Bianca walked into the hotel. La Bianca told him that Ronnie had left some messages on his answering device and La Bianca borrowed the applicant's mobile phone and left to use it. La Bianca came back into the bar and the applicant said to La Bianca referring to Ronnie, "What did he want." La Bianca replied, "He's left a bag in your car." (TS391) The applicant said that was the first time he knew about the bag in the car. His car was a mess. He said that La Bianca then asked for the keys. The applicant was still talking to the proprietor of the tavern. The applicant said that when he was asked for his keys he said, "Listen, don't worry - I've got to get my jacket out - I'll grab the bag." The applicant walked out. He then saw La Bianca talking with Ronnie. The applicant asked Ronnie, "Where's the bag" and Ronnie replied, "It's in the boot of your car - you cannot miss it, it is a colourful bag."

13 He said that was the first time he had spoken to Ronnie. He did not see the undercover officer near Ronnie. The applicant said that he went to the car, opened the front, climbed in and got his jacket out of the back. He then heard a voice saying, "Hey Tony." Tony was La Bianca's first name. He said at that stage he was leaning over the back getting his jacket out. He said that he replied: "No Raymond - it's your bag." Raymond is the applicant's first name. He did not know whose voice it was but he believed he was talking to Ronnie. The applicant said to him, "I'll only be a second I've got to get my jacket." He said he then grabbed the bag out of the boot. He identified it as the bag exhibited in court as being the bag containing the amphetamine. He walked, with the bag, across to where Ronnie and La Bianca were standing. He said to La Bianca, "There's Ronnie's bag - where is he?" La Bianca replied, "He's getting into the car over there." The applicant said he walked over to the vehicle indicated by La Bianca. Ronnie was in the vehicle with another person and it appeared that they were about to drive off. The applicant said: "Hey there's your bag." The applicant's evidence as to what then occurred was: "And now I know one of them to be Operative 24 gets out and say, 'Oh shit, he's got the bag' ". The applicant said that he replied "Well it's your bag, isn't it?' The applicant said that he then handed him the bag. The applicant was then arrested and he described how he was taken to Curtin House.

14 The applicant had a lengthy traffic record which included an offence of wilfully misleading a police officer. In 1994 he appeared on two occasions in the Court of Petty Sessions for an assault occasioning bodily harm for which he was fined and later for obstructing a police officer. The applicant was able to tender a large number of very impressive references to the trial Judge and there were many that spoke in his favour. He has been constantly employed in the racing industry and is held in esteem as a person of good character. His Honour said: (AB34)

"It's fair to say that the defence was vigorously conducted but it was clearly and comprehensively rejected by the jury. Turning then to matters personal to you, you were born on 25 June 1959. You are a single man although you have been in a relationship for something in the order of 2 years and have a young son by that relationship. You are yourself the son of successful parents and you come from a large and close-knit family and it's fair to say that you have grown up in a stable and religious atmosphere.

You were educated in your later school years at Aquinas College. You left school at about 15 to work in the racing industry and you spent some of your early years working in the Eastern States for a number of famous identities in that industry. When I look for matters which go in your favour to reduce the sentence which must now be passed upon you I note that although you have a record you have no record for offences of this kind, and I note that it's also the case that you are well spoken of by a great number of people who describe you as a king and generous person, and that is a matter which I certainly take into account.

I must say, however, that to describe a drug dealer, and that is what you are, as kind and generous, is in many ways a contradiction in terms given the harm that drugs do in the community. I have been provided with a great deal of evidence about your background and your personality and your intellectual abilities and I have given very close consideration to all that material.

I won't canvass it all now but I note that you appear to have suffered significant emotional harm as a result of the death of your sister in a motor vehicle accident when you were very young and when other members of the family including yourself suffered significant injury. That tragedy seems to have had an adverse effect upon you and upon your development as a young child. In addition you have suffered a number of serious head injuries and this has led to the carrying out of investigations into your condition by a clinical psychologist and by a psychiatrist whose reports have been provided to me.

The conclusion of the psychologist is that you have suffered a significant degree of brain damage which has affected your intelligence and your judgment. The conclusion of the psychiatrist is that you do not suffer from a mental disorder and your personality appears to have been relatively stable for at least the last 20 years. The psychiatrist describes you as rather naïve and having an optimistic view of the world and I am prepared to accept that for purposes of sentencing you.

I am prepared to accept that you are in many ways an immature man who acts impulsively on occasions without giving much consideration to the consequences of your conduct, but having said that it's necessary to observe that considerations of that kind cannot count for very much in a case such as this which is a serious case especially when it is borne in mind that you are no longer very young and that you have had throughout your life the advantage of a large and supportive family to fall back on in times of difficulty.

At the end of the day any attempt to explain away the seriousness of your conduct by considerations of your psychological condition is I think to be met by the observation that you have pleaded not guilty to this charge and accordingly this is not a case in which it is possible to say you have come to realise the wrong which you have done and demonstrated appropriate remorse. It may be that that is to be explained by your personality and psychological condition but my job, my task is nevertheless to impose upon you a sentence which is appropriate having regard to the seriousness of the case and having regard to factors personal to you.

Before I come to the question of the exact sentence which must now be passed upon you, let me just say that I have been moved by the concern and support shown to you in this case by your family and your friends and I am sure that that support will continue. The fact is that this is a serious case and the sentence must reflect that. The quantity of the drug involved was large and the operation, the transaction, was well planned, it seems to me."

15 His Honour then made findings as to how he saw the applicant's role in the transaction. I shall set out these findings and his Honour's reasons for sentence: (AB36).

"It is true that it is fair to describe your role in the transaction as that of a foot soldier. You were simply the courier of the drug and I am quite satisfied you were not the prime mover behind the sale. But drug sales cannot take place without persons such as you, who are prepared to cooperate, and you were in that sense then an essential link in the chain. The harm done by amphetamines in society is there for all to see. The lives ruined by the drug and the cost to the community of that ruin, is apparent to anyone who wants to see it.

It is a pity, and a source of great sadness to those around you, that you chose not to see it but rather to exploit or attempt to exploit the opportunity to make money, to make an unlawful profit. Before taking into account matters personal to you, I am of the opinion that this is an offence deserving of a term of imprisonment, and only of a term of imprisonment, and that the term should be in the order of 9 years. After consideration of factors personal to you, I would reduce that term to 7 years and declare you eligible for parole.

The term will be backdated to the date upon which you were convicted, which was 5 November 1998 and, as I have indicated, the other orders that I will make are that you are declared a drug trafficker under the Misuse of Drugs Act and the orders for destruction and forfeiture which have been discussed with counsel will be made. Would you stand up then please, Mr Miler? The sentence of this court is that you are to serve a term of 7 years imprisonment, commencing on 5 November 1998 and you are declared eligible for parole. You may stand down, thank you."

Limited involvement and no relevant prior convictions

16 I propose to deal firstly with the latter two grounds namely that the applicant has no relevant prior convictions and the reference to the limited involvement of the applicant in the commission of the offence. The applicant was found not to be the prime mover and, on his Honour's finding, would not appear to have a proprietary interest in the drugs themselves. However, he played a very significant part in the aiding of the moving of the bulk of a dangerous and deleterious drug at an early stage of its disposition. Sufficient is known to the courts of the distribution of drugs at the top level to know that the person owning the drug and wishing to move the bulk for further distribution in the community will employ somebody else to do it so that the owner of the drug, or a person near the top of the hierarchy, does not come into contact with those distributing at a lower level. It is also known that such a person will often endeavour to engage for this important assignment a person of good character and who is not likely to come under suspicion of the authorities. The applicant was such a person. He commenced to carry out the exchange with a person higher in the hirarchy being a short distance away and having him under observation. For reasons known only to the applicant and which he is not prepared to disclose, he provided a vital link to enable this large quantity to be moved further down the line. As the sentencing Judge rightly said:

"Drug sales cannot take place without persons such as you, who are prepared to cooperate, and you were in that sense an essential link in the chain."

17 His Honour then referred to the harm done and lives ruined by the fact that drugs of this type are available to the community. While the applicant was not the prime mover and had no propriety interest in the syndicate distributing the drug, he was, nevertheless, at a high level in the distribution hierarchy as he assisted to move the bulk and can be distinguished from a person selling smaller quantities on the street. The courts have said consistently that in cases of this type, factors such as good character will be excluded from consideration or will play only a minor or secondary role in the assessment of penalty. In the Canadian case of R v Devlin and Marentette [1971] 3 Canadian Criminal Cases Second Series 20, Gale CJ, when presiding over the Ontario Court of Appeal, made a detailed analysis of drug distribution of this type and referred to the fact that persons of good character are procured by the syndicate to carry out tasks of this nature and that it would be an error to take good character into account, as this would be using as a reason to impose a lenient sentence the very quality that the offender had to possess in order to commit the offence. This is currently the position as is expressed in Ruby " Sentencing", 4th ed (published 1997) where it is said at 208:

"Crimes of drug trafficking or fraud, depending upon methods, are often possible only by virtue of the absence of a previous criminal record. In such cases, courts may refuse to give any significant weight to this factor."

18 I shall later refer to the reduction made by his Honour. His Honour was acting consistently with the authorities and proper sentencing principles in not giving great weight to personal factors.

19 The first ground of appeal claims that the sentence was manifestly excessive by reason of the personal circumstances of the applicant. The thrust of the ground under this head was his psychological condition. The applicant was born in 1959. He has had, from an early age, a succession of serious head injuries. The first accident was a car accident which occurred when he was three years old. His grandmother and sister were killed and his mother was badly injured. Another sister was unconscious for six weeks. The applicant was thrown through the car windscreen and his head hit a lamp post. He was found unconscious and badly injured and required some 200 stitches to his face. Fragments of glass were found in his face and head and appeared for many years after the accident. In 1982 or 1983 he was involved in a car collision in which he lost consciousness and was taken to hospital, but discharged four hours later. In 1992 he was involved in a serious motor vehicle accident and was found on the side of the road in an unconscious state. It was thought to be a hit run accident in a semi-rural area. The left side of his face was severely injured, his facial bones were fractured, his eye removed from its socket and his left ear torn off. He said he underwent extensive surgery and has metal plates inserted in his face to stabilise the fractures. His ear was found detached and restitched under micro-surgery. His parents state that his behaviour has changed considerably since then. There have been two further occasions of his being kicked in the head and butted by horses.

20 He was, following his conviction, reviewed by two psychologists, Mr Peter Prisgrove and Ms L Coxon, The conclusion of Mr Prisgrove was:

"In summary, Mr Miller seems a personable though rather shallow and flamboyant man who has a rather naïve and over-optimistic view of the world. He does not suffer from any mental disorder. This personality picture seems to have been relatively stable over 20 years. I believe that the death of his sister has exerted an emotional impact on his emotional and interpersonal capacity, but this would need to be explored and clarified at some later time. He has experienced a range of head injuries which may be affecting his intelligence and judgment, but this will be dealt with in Ms Coxon's report.

"My conclusion about this complex case is that Mr Miller as a result of an accumulation of head injuries, has sustained a significant degree of brain damage, resulting in changes in both behaviour and personality.

The most serious of these deficits would be the lack of awareness of his own problems and of complex situations occurring around him. I think this would explain why an individual of his background and character would become involved in the type of situation where he has been charged with and convicted of a drug related offence. According to the records he has not previously been involved in this type of activity."

22 He was average at school. It was thought he could do better at his schoolwork, but did not do so because of his intense interest in horses and sport. The intellectual functioning tests carried out by Ms Coxon showed he was functioning in the normal range, but Ms Coxon said, "Mr Miller's intellectual functioning level appears to be in the normal range, closer examination of his sub-test scores reveal one area of concern. This is with the Digit Symbol test of speed of information processing or brain efficiency, where his score was well below the norm for his age group. This sub-test is the most sensitive to brain injury and even minor blows to the head can result in poor performance on this sub-test." Reference was made to a National Adult Reading Test of estimated pre-accident intelligence quotient. It was thought that the applicant has probably suffered a 10 point decline in performance IQ, but only a 3 point decline in verbal IQ since his brain trauma. I have set out his Honour's findings on this evidence and I shall later refer to them again.

23 The presence of psychiatric or psychological factors, which may affect the sentencing, is an important factor to consider. The mere existence of such a condition is not of itself sufficient. It must be shown that it contributed to the commission of the offence or that its existence reduced the moral culpability of the offender. The law in this state was set out by Steytler J in Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998. In that case the applicant had committed three offences of sexual penetration without consent and had unlawfully detained a 19 year old complainant. He had offered the complainant a lift home in his car. He drove her to a place she did not want to go and committed the offences with a degree of physical violence. He was a 35 year old self employed businessman, who, at the time was severely depressed as a result of family problems. There was before the sentencing Judge a psychiatric report that the applicant was suffering from a severe psychiatric disorder in the form of major depression. He had received treatment and the psychiatrist was of the opinion 'with reasonable medical certainty' that the applicant was unlikely to re-offend. Steytler J, in reasons to which the other members of the court agreed said that the court was referred, so far as the applicant's psychiatric illness was concerned, to two cases which have touched upon the effect of psychiatric disorders on the sentencing process. His Honour said:

"In the first of these, R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398, the Victorian Court of Appeal, comprising Charles and Callaway JJA and Vincent AJA said, at 400, that:

'Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.'

In the second case, R v Lippiatt, unreported, CCA SCt of WA; Library No 980065; 17 February 1998, the Western Australian Court of Criminal Appeal (Kennedy, Franklyn and Ipp JJ) said, at 10, that while mental illness has been held to have a limited mitigatory effect in cases in which imprisonment will be harder to bear because of that illness it was open to argument whether the wider approach in R v Tsiaras should be followed in this State. Senior counsel for the applicant contended that the depression from which the applicant suffered did reduce his moral culpability and also that it made this case an inappropriate vehicle for general deterrence.

While it might be so that a serious psychiatric illness might reduce the moral culpability of an offender there is nothing in the evidence in this case to suggest that the applicant's depression had any marked effect on his moral culpability so far as his commission of these offences was concerned or that it was or is such that it should have any significant impact on ordinary principles of general deterrence. Dr Kay, in his analysis of the reasons leading up to the commission of the offences, appears to have concentrated more on the applicant's upbringing and adverse life experiences than upon his psychiatric illness. While it might well be inferred from what was said by Dr Kay that the illness, together with the other factors referred to by him, affected the applicant's judgment in such a way as to make him more likely to offend, this seems to me to have been sufficiently taken into account by the learned sentencing Judge who remarked, as I have said, that the severe depression could not excuse or "fully explain" (my italics) the applicant's conduct. Moreover, the learned sentencing Judge reiterated, immediately prior to imposing each of the sentences of imprisonment imposed by him, that he had had regard to the psychiatric factors which he had earlier outlined.

I should add, in this respect, that it was not contended that the fifth of the propositions enunciated in R v Tsiaras has any application to the circumstances of this case in the light of the applicant's good response to continuing treatment which has been such as to see his disorder dissipate within weeks, subject only to the continued taking of anti-depressant medication."

24 In the present case there is no evidence to show that any psychiatric condition from which the applicant may be suffering contributed to his committing this very serious offence. Mr Prisgrove said it was difficult to comment on the applicant's offence as he denied any involvement in it. His report went no higher than seeing a possibility that the head injuries may affect his intelligence and said that this was an area in which Ms Coxon could give an opinion. Ms Coxon assessed him as a person of average intelligence and considers there has been a decline from that by reason of brain damage. This has caused changes in both behaviour and personality. This would cause a difficulty in handling complex situations. There is, however, no evidence before the Court that he was placed in a complex situation. It is not known how he came to agree to do what he did. This information is peculiarly within the applicant's own knowledge. He may have volunteered to do what he did to obtain a reward. He may have been imposed on in his condition. If this were the situation then the law in Australia is that the offender must introduce some evidence to show that this is the situation. In R v Calabria (1982) 31 SASR 423 King J said at 437:

"The appellant was proved to have been a participant in an operation of drying out Indian hemp plants in contemplation of sale. He was found, therefore, to have been concerned, at least indirectly, in the buying or selling of Indian hemp and therefore to be guilty of trading within the meaning of the Act. It was for this participation that he had to be punished. The degree of his participation is not known. It was contended that the learned sentencing Judge was required in these circumstances to assume the least degree of involvement, that is that he was at the premises merely as a labourer. To make such an assumption would be to speculate. One could as well speculate that he was a principal in the operation and was using the Trimboli property as the location. Speculation is futile. If the appellant had put forward an explanation of his role in the operation, his Honour would have heard his evidence and have been able to judge its veracity. If he were left in doubt, he would have been required to resolve the doubt in favour of the appellant. In the absence of evidence, however, any assumption as to the degree of the appellant's participation would be unjustified speculation. He was proved to be a participant in the operation and therefore to be guilty of trading in Indian hemp and he must be punished for that. If the degree of participation were known, it might operate in aggravation or extenuation of the degree of his guilt. As it is not known, it can operate neither as aggravation nor extenuation. This was the approach which the learned sentencing Judge took, and he was correct to do so.

In my opinion, the appeal against sentence must also be dismissed."

25 In the present case, to say that others may have overborne the applicant in his reduced capacity is pure speculation. It would also be speculation to say that he was easily led. That may be the situation or it may be that he asked to assist, or it may lie somewhere between. There must be evidence introduced of facts in mitigation. (R v Wong (1995) 16 WAR 219). If there were facts in aggravation to increase the sentence otherwise applicable, then they must be established beyond reasonable doubt, but if there are facts in mitigation to reduce the penalty otherwise appropriate, then they must be established on the balance of probabilities. This has been the effect of decisions in Victoria and Queensland, each consisting of Courts of five Judges. (See R v Storey [1998] 1 VR 359 and R v Morrison [1998] QCA 162; [1999] 1 Qd R 397). These decisions are consistent with what is said in R v Wong.

26 Steytler J in the reasons I have set out referred to the Victorian case of R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398 where a serious psychiatric illnesses not amounting to insanity could reduce the morale culpability of certain offences. In that particular case the offender was suffering from schizophrenia and his symptoms included auditory hallucinations and possible delusions. The applicant in the present case is not suffering an illness comparable with this. There has been some reduction of pre-accident intelligence. A further factor which the Court referred to in R v Tsiaras was that a person suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. As was referred to in the cases mentioned by Steytler J, this would be going further to what the Courts have in this State and in other jurisdictions. There would be no need to analyse that further in the present case, again because the applicant's condition was not approaching the condition discussed in the Victorian cases. I shall shortly make reference to the fact that the learned sentencing Judge, having conducted the trial was in a good position to judge the applicant's ability.

27 The way the grounds were argued was that there was error in the identification of nine years as being the term of imprisonment appropriate to the objective circumstances of the commission of this offence and that alternatively the reduction by two years was too small.

28 It is clear from his Honour's remarks that the starting point was the starting point for an offender found to be in the nature of a courier committing an offence of this degree of seriousness. I consider that the sentence of nine years is well within range for the person in the applicant's position of acting in the nature of a courier. In R v Reppucci (1994) 74 A Crim R the offender was selling a kilo of amphetamine of eight per cent purity for $32,000 to an undercover police officer. The appropriate starting point was considered to be a sentence of 10 years imprisonment. This was prior to this Court re-examining the place of amphetamine on the scale of seriousness of prohibited drugs. That case was decided on the basis that the drug was in the middle range. There were mitigating factors and on a Crown appeal a sentence of seven years was substituted. In Bellisimo v R (1996) 84 A Crim R 465 amphetamine was placed in a higher category. In that case the applicant had 20.8 grams of six per cent purity and a sentence of five years and ten months was upheld. In R v Corrigan, unreported; SCt of WA; Library No 98700; 7 December 1998 it was accepted that the applicant was in the nature of "a foot soldier" who had in his possession an amount of .54 grams of heroin. A sentence of seven years was not set aside as excessive. I would see the starting point as being within range.

29 The sentencing Judge saw some mitigation. He was a person of good character for whom there were many references. However, for reasons I have stated, these play a minimal part in respect of a person committing this type of offence. He did, however, have the psychological features to which I have referred, but with no evidence showing that they contributed. The psychological report referred to a deficit in intelligence, but his Honour was in a very good position to see the extent to which this could affect the applicant's performance. The applicant conducted a defence of some complexity. He denied any participation and gave an explanation for why he did the things he was observed to be doing. He went further. He explained how he won a large amount of money at betting and gave evidence to the effect that following his arrest this went missing and was unaccounted for. His Honour saw how he was cross-examined in each of these matters and his reaction to it. I consider his Honour made a proper assessment consistent with the authorities when he made his findings on the psychological evidence. He said he was prepared to accept that the applicant was an immature man who acts impulsively on occasions without giving much consideration to the consequences of his conduct. His Honour rightly said that having said that it is necessary to observe that considerations of that kind cannot count for very much in a case such as this, which is a serious case, especially as the applicant is no longer young and has the support of a family to fall back on in times of difficulty. His Honour's ultimate conclusion was:

"Any attempt to explain away the seriousness of your conduct by considerations of your psychological condition is I think to be met by the observation that you have pleaded not guilty to this charge and accordingly this is not a case in which it is possible to say you have come to realise the wrong which you may have done and demonstrated appropriate remorse. It may be that this is to be explained by your personality and psychological condition but my task is nevertheless to impose upon you a sentence which is appropriate having regard to the seriousness of the case and having regard to the factors personal to you."

30 His Honour nevertheless made a discount as high as two years. I do not consider that there is anything present to show that his Honour was wrong in this assessment.

31 It was submitted further that the applicant's good character and the way he is seen by prominent members of the community combined with his psychological condition makes this case wholly exceptional as to allow, in the court's mercy, a much greater discount for sentence. This proposition is contrary to the authorities to which I have referred and which are applicable to serious drug dealing. I have referred to the very limited role good character plays in such cases. The psychological condition was properly assessed by his Honour and applied in the way referred to by the authorities in respect of serious drug dealing.

33 WALLWORK J: I agree with the reasons for judgment of Pidgeon J and to the order proposed by his Honour. There is nothing I wish to add.

34 STEYTLER J: I have had the advantage of reading the reasons for decision proposed to be published by Pidgeon J. I agree with them and with his Honour's conclusion. I have nothing to add.