Court of Appeal (WA)|2013-03-15|Before: Mr J, Buss JA, Lure P, Pullin JA

NEUMANN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 70 (15 March 2013)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : NEUMANN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 70

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence by offender - Multiple drug dealing offences - Late pleas of guilty - Individual sentence of 10 years' imprisonment - Total effective sentence of 15 years' imprisonment - Appellant aged 57 when sentenced - Whether 10-year sentence manifestly excessive - Whether 15-year sentence infringed the first limb of the totality principle

Sentencing Act 1995 (WA), s 7(2), s 8(2) (repealed), s 9AA

Bahn v The State of Western Australia [2008] WASCA 40

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339

Galbraith v The State of Western Australia [2011] WASCA 70

Kirby v The Queen [2003] WASCA 164

Kitis v The State of Western Australia [2013] WASCA 34

Lai v The State of Western Australia [2012] WASCA 181

Mikulic v The State of Western Australia [2011] WASCA 127

Ozan v The State of Western Australia [2013] WASCA 27

Penney v The State of Western Australia [2011] WASCA 71

Pham v The State of Western Australia [2011] WASCA 244

Quach v The Queen [1999] WASCA 210

Sinagra-Brisca v The Queen [2004] WASCA 68

3 BUSS JA: The appellant appeals against sentence.

4 The appellant, Stephen Ramon Cookson, Lejla Tresnjo and Loriana Crews were named in an indictment dated 15 February 2012.

5 The indictment contained four counts, as follows:

Count 1: between 30 August 2010 and 23 September 2010, at Perth, the appellant and Mr Cookson conspired together to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(2) of the Misuse of Drugs Act 1981 (WA) (the Act).

Count 2: on 24 September 2010, at South Perth, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act.

Count 3: on the same date and at the same place as in count 2, the appellant, Ms Tresnjo and Ms Crews had in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act.

Count 4: on 28 December 2010, at Burswood, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act.

6 The appellant was convicted, on his pleas of guilty, on each of the counts.

7 On 29 June 2012, the appellant was sentenced by Goetze DCJ, as follows:

Conspiracy to possess methylamphetamine with intent to sell or supply

Possess methylamphetamine with intent to sell or supply

Overview of the facts and circumstances of the offending

9 Between 30 August 2010 and 11 September 2010, the appellant conspired with Mr Cookson (now deceased) to import an unknown quantity of methylamphetamine from Sydney into Western Australia (count 1). The appellant's associates, namely John Cameron (now deceased), Mr Cookson and Ms Crews, collected amounts owing by third parties, for the sale or supply of prohibited drugs, to fund the purchase of methylamphetamine. Mr Cameron transferred the funds to Sydney, where the purchase was facilitated by another of the appellant's associates, Ms Tresnjo. Mr Cameron delivered the methylamphetamine to Perth.

10 On 24 September 2010, police executed a search warrant at a home unit in South Perth. The appellant and Mr Cameron were found removing methylamphetamine from four wrapped packages containing a total of 860.9 g of the drug, ranging in purity from 46% to 75% (count 3). The methylamphetamine in the four wrapped packages had been divided into 16 bags weighing about 28.3 g each (averaging 59.4% purity) and four bags weighing about 100 g each (averaging 70.75% purity).

11 Also on 24 September 2010, at the South Perth unit, police located a set of digital scales and 394.6 g of methylamphetamine in a plastic container which had been hidden behind a fire hose reel in the foyer outside the unit (count 2). Most of the drug had a purity of between 22% and 24%. The police found $7,100 cash in the appellant's bag.

12 Police then carried out a search at the appellant's home in Burswood. They found a black 'man bag' on the rear seat of his Porsche Cayenne motor vehicle. The bag contained a loaded Glock handgun. The manufacturer's serial number had been removed.

13 The appellant was arrested. Later, he was released on bail.

14 On 28 December 2010, the appellant, while on bail for counts 1, 2 and 3, was apprehended by police at the Burswood resort complex. He was in possession of 18.2 g of methylamphetamine with a purity of 22% (count 4), a set of electronic scales, $5,000 cash in a black bag, $1,545 cash in his wallet and a 'tick list'. The police also seized a further $70,050 cash from the appellant's hotel room.

The timing of the appellant's pleas of guilty

15 The appellant committed count 1 in August or September 2010, counts 2 and 3 in September 2010 and count 4 in December 2010. He did not enter pleas of guilty until 16 April 2012. By that date, his trial had been listed to begin on 6 August 2012.

16 The sentencing judge made the following findings of fact:

(a) The high degree of purity of the 860.9 g of methylamphetamine indicated that the appellant was close to the source of manufacture.

(b) The appellant was the leader of the group comprising the people named in the indictment and Mr Cameron. He arranged for the purchase of the drugs in New South Wales and their transport by courier to Perth.

(d) The appellant was at a high level in the chain of drug distribution. He was involved in financing, planning, transporting, cutting, repackaging and reselling the drugs.

(e) On arrival in Perth, the appellant was apprehended while unpacking, cutting and preparing the drugs for resale at a profit.

(f) The appellant was a drug user, but he was not dealing merely to fund his own habit.

(g) There was a 'high level of commerciality' involved in the offending (ts 132).

17 His Honour identified the following aggravating factors:

(a) the offending the subject of count 4 was committed while the appellant was on bail; and

18 The sentencing judge noted the appellant's late pleas of guilty. He said these demonstrated remorse and an acceptance of responsibility, and also facilitated the course of justice. However, the appellant was 'caught red-handed' in relation to counts 2, 3 and 4 (ts 133).

19 His Honour stated, in the course of fixing the terms of imprisonment, that he had discounted the appellant's sentences for the pleas of guilty 'notwithstanding the lateness of the [pleas] and the strength of the State case' against him (ts 136).

21 Ground 1 alleges that the sentencing judge erred in that the individual sentence for count 3 was manifestly excessive 'in light of the appellant's guilty plea'.

22 Ground 2 alleges that his Honour erred in that the total effective sentence infringed the first limb of the totality principle.

23 On 22 August 2012, Mazza JA granted leave to appeal on each of the grounds.

Sentencing for serious drug dealing offences

24 The maximum penalty for the offence of possessing a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act, is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the Act.

25 The maximum penalty for the offence of conspiring with another to commit the offence of possessing a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(2) of the Act, is 20 years' imprisonment or a fine of $75,000 or both. See s 34(1)(b) of the Act.

26 The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. All of these propositions are well-established by the case law.

27 When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. These propositions are also well-established by the case law.

28 I have examined numerous prior cases of offending against s 6(1) of the Act which have at least some features comparable to the appellant's offending. See Quach v The Queen [1999] WASCA 210; Kirby v The Queen [2003] WASCA 164; Sinagra-Brisca v The Queen [2004] WASCA 68; Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107; Bahn v The State of Western Australia [2008] WASCA 40; Galbraith v The State of Western Australia [2011] WASCA 70; Penney v The State of Western Australia [2011] WASCA 71; Mikulic v The State of Western Australia [2011] WASCA 127; Pham v The State of Western Australia [2011] WASCA 244; Lai v The State of Western Australia [2012] WASCA 181; Ozan v The State of Western Australia [2013] WASCA 27; Kitis v The State of Western Australia [2013] WASCA 34; and the cases reviewed in those decisions.

29 It is unnecessary to reproduce the material facts and circumstances of the prior cases I have examined or the sentencing dispositions.

30 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper limit of the range.

31 The appellant was born on 18 December 1954. He was aged 55 or 56 at the time of the offending and was 57 when sentenced.

32 In 1992 the appellant's marriage broke down. He suffered a major depression. A subsequent partner introduced him to illicit drugs. The appellant worked in the refrigeration or air-conditioning industry until he was 42. He then commenced share trading and, later, turned to drug dealing.

33 The information before the sentencing judge included a psychological report dated 23 May 2012 from Mary-Anne Martin, a forensic psychologist, and a pre-sentence report dated 31 May 2012.

34 Ms Martin said that the appellant is drawn to people whom he finds 'exciting'. This includes an attraction to people who are involved at 'the high end of drug dealing', and the associated 'high flyer lifestyle' that accompanies it. All of this appears to be a compensation for the appellant's frequent feelings of failure in life and a way to build his self-worth. It also has a practical dimension, namely financing his heavy drug use. Ms Martin expressed the view that, given the needs which drug use and drug dealing fulfil for the appellant, it will be difficult for him not to return to this lifestyle.

[The appellant] gave a history which is characterised by periods of major depression and possibly hypomanic episodes, and reported he was using cocaine and amphetamines, and gambling at the casino and online leading up to the current offences. He reported poor coping when relationships break down and feelings of failure at these times. He also appears to become involved in the drug scene and associated subculture because of his need for excitement and a 'high flying' lifestyle.

36 The author of the pre-sentence report said that the appellant used drugs 'to self-soothe during crisis periods' and that he was attracted to and enjoys risk taking behaviour. The author was of the view that the appellant had 'little insight toward the triggers for his behaviour and little regard for the consequences his behaviour may cause others to experience'.

37 The appellant's offending in relation to count 3 was very serious. In particular:

(a) The quantity of methylamphetamine was very large, being in total 860.9 g.

(b) The purity of the drug was very high, ranging between 46% and 75%.

(c) When the appellant was apprehended by the police, the methylamphetamine had been divided into 16 bags weighing about 28.3 g each (averaging 59.4% purity) and four bags weighing about 100 g each (averaging 70.75% purity).

(d) When the drug was diluted by other people for sale at street level (about 14% purity), the diluted material would have weighed about 3.8 kg.

(e) The appellant was at a high level in the chain of drug distribution. He made the executive decisions within the group of offenders. Although he was a drug user, the appellant carried on a drug dealing business and derived substantial commercial profits from it.

(f) The methylamphetamine in question was close to the source of manufacture.

38 The appellant has a prior criminal record. In 1999 he was convicted in the District Court of possession of a prohibited drug, namely MDMA, with intent to sell or supply it to another and attempting to pervert the course of justice. He was sentenced to 6 years' imprisonment for the drug offence and 12 months' imprisonment for attempting to pervert the course of justice. The individual sentences were ordered to be served cumulatively. The total effective sentence was therefore 7 years' imprisonment. In 1980 the appellant was sentenced in Queensland to 12 months' imprisonment for cultivation of cannabis.

39 The appellant was not a person of good character. His prior convictions were not, of course, an aggravating factor (s 7(2) of the Sentencing Act 1995 (WA)) and the appellant could not be (and was not being) punished again for past criminal behaviour. However, his prior criminal record (in particular, the drug dealing conviction in 1999) reflected on his moral culpability for count 3. It showed that this offence was not an uncharacteristic aberration. He manifested, in his commission of count 3, a continuing attitude of disobedience of the law. See Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477 - 478 (Mason CJ, Brennan, Dawson & Toohey JJ).

40 The sentencing judge imposed sentence before s 9AA of the Sentencing Act (which was inserted by the Sentencing Amendment Act 2012 (WA)) came into operation on 20 December 2012.

41 As at the date on which his Honour imposed sentence, the principles applicable to a plea of guilty, in a sentencing context, were, relevantly, as follows:

(a) By s 8(2) of the Sentencing Act (now repealed), a plea of guilty by an offender was a mitigating factor and the earlier in proceedings that it was made, or indication was given that it would be made, the greater the mitigation.

(b) It was well-established that, in all but the most exceptional cases, a plea of guilty would result in a reduction of the sentence that would otherwise have been imposed. See Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [35] (Steytler P, Wheeler, McLure & Buss JJA).

(c) Ordinarily, in Western Australia, fast-track pleas of guilty attracted a reduction in sentence of somewhere between 20% and 35%, depending on the circumstances. In a particular case, the reduction might be less where, for example, there was an absence of any real remorse. The sentencing judge had a discretion as to the weight to be given to a plea of guilty. However, other than in an exceptional case, some discount on sentence was given even where the plea of guilty was unavoidable and unaccompanied by any real remorse or acceptance of responsibility because, even in these circumstances, the plea still indicated a willingness to facilitate the course of justice. See Moody [37] - [38].

(d) In Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339, Gaudron, Gummow and Callinan JJ explained the rationale for the rule that a plea of guilty may be taken into account in mitigation:

[T]he issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice [22].

(e) In Bahar v The Queen [2011] WASCA 249; (2011) 255 FLR 80, McLure P (Martin CJ & Mazza J agreeing) referred to Cameron and then said:

The practical consequence of the fact that a plea of guilty is mitigatory is that, all other sentencing considerations being equal (which they usually never are), an offender who pleads guilty will ordinarily receive a lesser sentence than a co-offender who pleads not guilty. However, as explained by the High Court in Cameron, it is not the mere plea of guilty that produces that outcome but rather the fact that the plea supports an inference of remorse, acceptance of responsibility and a willingness to facilitate the course of justice [41]. (emphasis added)

42 Although the appellant pleaded guilty and was entitled to some credit for the pleas, they were late and made in the face of a strong prosecution case. I am not persuaded that the appellant should have received a greater discount for the late pleas. Any remorse he experienced appears to have arisen only when he reflected upon the inevitability of the outcome of the proceedings.

43 At the hearing before the sentencing judge, it was submitted on the appellant's behalf that his age was a mitigating factor (ts 133). His Honour accepted, in his sentencing remarks, that imprisonment would become more difficult for the appellant as he aged. He said that he would take this matter into account in a general way in deciding upon the sentencing disposition.

44 In my opinion, the individual sentence of 10 years' imprisonment for count 3 was not beyond the range open on a sound exercise of the sentencing discretion. I am satisfied that the term of 10 years, when examined in the context of the maximum penalty, the objective seriousness of count 3, the standards of sentencing applicable to offences of this kind, the appellant's late plea of guilty and his personal circumstances and antecedents (including his age), was not unreasonable or plainly unjust.

46 A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error. The principle comprises two aspects. First, the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases. Secondly, the total effective sentence imposed on such an offender must not be a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody. These propositions are well-established by the case law.

47 At the hearing before this court, counsel for the appellant confirmed that he relied on the first, but not the second, limb of the totality principle (appeal ts 3).

48 I have already considered the individual sentence for count 3 in the context of ground 1. Count 3 was a very serious offence. The appellant's offending in relation to counts 1, 2 and 4 was also very serious. My observations, in the context of ground 1, about the objective seriousness of the appellant's offending, and his personal circumstances and antecedents, apply generally to counts 1, 2 and 4.

49 The appellant's possession of the loaded handgun, and his commission of count 4 while he was on bail, were aggravating features of his offending.

50 The possession of the loaded handgun and the facts and circumstances of the offending as a whole indicate that these offences were committed by a group of people involved in organised crime. The appellant was the principal offender in a drug dealing syndicate.

51 The major sentencing considerations were appropriate punishment and personal and general deterrence.

52 It was necessary for the sentencing judge to order some substantial accumulation of the individual sentences for counts 1, 2 and 4 with the individual sentence for count 3. Each of them was a separate and distinct offence. The ordering of wholly concurrent individual sentences, or only a modest accumulation, would not properly have marked the very serious character of the offending as a whole.

53 There was very little by way of mitigation. It comprised mainly the appellant's late pleas of guilty. As to his age, the appellant will be 69 when he becomes eligible for parole and he will be 71 when he completes the sentences.

54 I am satisfied that the total effective sentence of 15 years' imprisonment bears a proper relationship to the overall criminality involved in all of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing considerations, including the appellant's late pleas of guilty and his age.

55 The existence of error in the determination of the total effective sentence should not be inferred from the result.

NEUMANN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 70 (15 March 2013)

At a glance

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Judgment (104 paragraphs)

NEUMANN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 70 (15 March 2013)

Legislation Cited (2)

Cases Cited (4)