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[2000] WASCA 194
Court of Appeal (WA)
2000-08-02
Kennedy ACJ
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : NELIS -v- THE QUEEN [2000] WASCA 194
Criminal law and procedure - Sentencing - Two counts of selling amphetamines and one count of possessing amphetamines with intent to sell or supply - Total of 109.79 grams of amphetamines - Commercial dealer - Not addict - Sentences of 3 years, 7 years and 3 years, to be served concurrently - Deprived background - Psychiatric disorder - Sentences not interfered with
Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999
Lang v The Queen, unreported; CCA SCt of WA; Library No 940484; 6 September 1994
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
R v Bellissimo (1996) 84 A Crim R 465
R v Darwell (1997) 94 A Crim R 35
R v Doyle (1994) 71 A Crim R 360
Sikaloski v The Queen [2000] WASCA 63
Trescuri v The Queen [1999] WASCA 172
1 KENNEDY ACJ: I have had the benefit of reading in draft the reasons to be published by Wallwork J, with which I am in agreement.
2 Having regard to the fact that the applicant's first offence was committed on 1 July 1999 and the remaining two offences were committed on 20 July 1999, in my view, it would have been appropriate to direct that the sentences on the second and third counts were to be served at least partly cumulatively. I consider, however, that the total effective sentence imposed by the learned sentencing Judge was within the limits of the exercise of a sound discretionary judgment and, on this basis, I would not interfere with the sentences imposed.
3 WALLWORK J: On 29 February 2000 at Perth the applicant was sentenced to an effective total of 7 years imprisonment for dealing in amphetamines. That sentence was comprised of three sentences, being firstly, a sentence of 3 years imprisonment for selling 27.4 grams of amphetamine powder with a purity of 2.5 per cent to an undercover police officer on 1 July 1999. The police officer paid $1200 in cash for that amount of the drug. A second offence was that on 20 July 1999, the applicant had sold 54.75 grams of methylamphetamine to the same undercover officer for the sum of $13,000 in cash. For that offence the applicant was sentenced to 7 years imprisonment to be served concurrently with the first sentence. The applicant was also sentenced for a third offence of having in his possession with intent to sell or supply it to another, two plastic bags, the first containing 26.95 grams of methylamphetamine with a purity of 2.5 per cent and a second smaller amount of .69 grams of the same drug with a purity of 21 per cent. For that offence the applicant was sentenced to 3 years imprisonment, also to be served concurrently.
4 During the search of the applicant's home, electronic scales, a large quantity of clip sealed plastic bags and $4900 in cash were located. The applicant now seeks leave to appeal against those sentences.
5 The learned trial Judge was told in the plea in mitigation that the applicant had never been involved in that sort of enterprise before and that there was a second man involved with the applicant in selling the drugs. It had been at that person's suggestion or instigation that the applicant had been involved in the sales. It was said that the $4900 in the house had been money which the applicant had obtained by working. The money was to be used to assist in purchasing some gumball machines which the applicant's wife owned and leased out to various businesses.
6 In 1983 the applicant had been sentenced for a number of offences including theft of a motor vehicle, criminal damage and burglary. He had been ordered to serve 9 months at the Barwon Attendance Centre in Victoria. In 1998 he had been convicted of three charges of "handling" stolen goods and had been sentenced to 3 months imprisonment on each charge with one of those terms to be served concurrently. In February 1999 the applicant had been convicted of a number of counts of attempting to export native animals. He had been fined approximately $12,000. He has also been convicted of a number of other offences. He was familiar with what the criminal law was all about when he committed these relevant offences.
7 The Court was told that the applicant is a good father and supports his wife and four children in a generous manner. He is also a hard worker.
8 In reply the prosecution contended that the recorded conversations between the applicant and the undercover police officer revealed a professional approach on the part of the applicant. At one stage he said "I want to make a lot of money out of you." The applicant had taken an active role in contacting the undercover officer in order to sell drugs.
9 A medical report from a consultant psychiatrist dated 22 February 2000 reveals that the applicant had an unfortunate background as a child, at one stage being made a ward of the State. His mother was said to have left the family when he was two years old. His father had remarried shortly after that. The applicant saw his biological mother for the first time after that when he was 15 years old. At that stage he had been living in a boys' home for a year. Prior to his arrest the applicant had been employed as an underground concreter at Roxby Downs on a fly in-fly out arrangement working two weeks on and one week off, for which he earned approximately $70,000 a year.
10 After interviewing the applicant the psychiatrist concluded that the applicant had a psychiatric history consistent with a life-long psychiatric disorder, most likely being attention deficit disorder with hyperactivity and antisocial personality traits. An underlying bipolar disorder was thought to be a viable possibility. The psychiatrist recommended that the applicant should be psychologically and psychometrically assessed and should receive appropriate treatment from a consultant psychiatrist.
11 The psychiatrist concluded that in terms of his criminal and moral culpability, and by virtue of his psychiatric pathology, the applicant would have been easily misled and gullible. That view was reached after taking into consideration the applicant's impulsivity, lack of sound social judgment and his gullible and somewhat naive approach to life. The psychiatrist said that those characteristics are common in persons suffering from attention deficit disorder and could also be a feature of a person suffering from underlying bipolar mood disorder.
12 When sentencing the applicant the learned Judge told him that the maximum penalty for the offences was a fine not exceeding $100,000 or imprisonment for a term not exceeding 25 years, or both. After referring to the facts surrounding the offences, his Honour noted that the total quantity of amphetamines involved in the offences was 109.79 grams. He said that the offences had been a premeditated commercial dealing in amphetamines, which for some time now had been considered to be in the same "league" as heroin and cocaine.
13 His Honour commented that there was a huge social cost to the community in connection with the drug trade and that costs of policing, of health, of increased crime and of the destruction of families resulted from it. His Honour said that the relevant offences indicated that the applicant should be dealt with as a mainstream dealer and not a mere distributor. He had not been involved in the offences to feed his own habit.
14 His Honour noted the character references which had been submitted on the applicant's behalf. He said that most of the referees appeared to be astounded by the applicant's involvement in the offences. His Honour said that it was fair to say that the applicant had pleaded guilty at a very early opportunity. He was entitled to a discount in his sentence accordingly. He took account of the contents of the psychiatric report and said that having regard to all the circumstances, a starting point for considering the sentences would be a sentence of 8 years imprisonment. However taking account of all the circumstances to which he had referred, an appropriate sentence would be a sentence of 3 years imprisonment on the first count; 7 years imprisonment on the second count; and 3 years imprisonment on the third count, with all the sentences to be served concurrently and to be effective from 2 February 2000.
15 It was argued on the hearing of this application that the overall sentence was manifestly excessive having regard to the quantity of the drug involved. It was submitted that a fast-track plea of guilty can often attract a discount of 20 to 35 per cent of the sentence and that a large discount had not been given to the applicant in this case. Reference was also made to the psychiatric report and to the fact that in Paparone v The Queen [2000] WASCA 127 it had been held that where there is a causal connection or link established between the condition of the offender and the commission of the crimes, that can be taken into account in the sentencing process. Generally that would produce a mitigatory effect because the offender's moral culpability would be less. Amongst other things it reduced the seriousness of the offending and the need for a denunciatory sentence. It was said that the learned sentencing Judge had only allowed a discount of 12.5 per cent for all the mitigating factors and that that reduction was so low as to manifest error.
16 In the decided case of R v Votano [2000] WASCA 144 it was pointed out that it has been said many times by the courts in this State that the distribution of drugs such as amphetamines is causing tremendous harm in this community. Drug addiction is leading to crimes such as armed robberies and home invasions by people who are attempting to obtain money to buy drugs.
17 The offences involved in this case involve the commercial dealing in drugs which cause serious damage and distress to their users and to other people in this community. Although it could be said that the 7 year sentence of imprisonment for the offence in count 2 of the indictment did not allow as much deduction for the applicant's mitigating circumstances as could have been allowed by the learned Judge, it is relevant that the other two sentences of 3 years imprisonment could properly have been made cumulative in part to the 7 year term. They were ordered to be served concurrently.
18 The practical effect is that if the 7 year term was reduced by this Court, part of one of the other sentences should be made cumulative on the reduced term.
19 In all the circumstances in my view it could not be said that an aggregate effective sentence of 7 years imprisonment was too severe in the circumstances. This is because the offences were extremely serious and it is the overall criminality which is significant. If the sentences are compared to sentences which are imposed for offences such as armed robbery, it can be seen that the 7 year effective sentence is not too severe a sentence when the criminality involved is taken into account.
21 MILLER J: I have had the benefit of reading in draft the reasons published by Wallwork J. I am in agreement with those reasons and have nothing further to add.
# Nelis
The Queen \[2000\] WASCA 194
(1999) 195 CLR 665