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[2009] WASCA 8
Court of Appeal (WA)
2009-01-13
Miller JA, Steytler P, Lure JA
Original judgment source is linked above.
151 I have already made reference to the sentencing judge's conclusions about the appellant's intentions in relation to his possession of the substantial sum of money with which he was found. The sentencing judge considered that the appellant's explanation that $10,000 had been given to him by his mother and $6,000 he had won at the casino was implausible. I have also referred to the sentencing judge's conclusions that the appellant's contention that he was holding the narcotic drugs for another person and he was to deliver them at an address in Perth was 'fanciful or implausible'.
152 Submissions made on behalf of the appellant at the sentencing hearing were in the following terms:
In relation to the drugs that he did have when he was apprehended, his position is that he was holding those for the owners of it. They were people from a nightclub. They were the sort of people that did not want to be found in possession of drugs. From time to time he was a very handy person. He was mobile and he was able to take custody of these - what has to be accepted was large quantity of fairly high quality drugs, but it was not his.
The money that he had with him he says, as to $10,000, was money that his mother had given him to go back to Melbourne to undertake a drug rehabilitation programme which his brother had previously successfully completed - one of his brothers. He says that some $6000 was his own cash that he had won at the casino some days before. I am always cynical about someone who says that to me, but he assures me that if it was an issue, you could call for the video surveillance at the casino which would indicate that he did, in fact, have a lucky streak a few days before he was arrested.
That amount obviously, will be forfeited, and he pleads guilty to it on the basis that directly or indirectly it would have to be said to be connected to the proceeds of crime, and he doesn't take any issue with the ultimate forfeiture of the amount in question.
153 The concession that the full amount of $16,850 would have to be forfeited because it directly, or indirectly, was connected to the proceeds of crime does not sit easily with the submission that $6,000 was won at the casino.
154 The respondent places reliance upon the fact that the appellant was unable to explain his possession of the money to the writer of the pre-sentence report. The report of 11 February 2008 contains the following passage:
[H]owever when questioned, he offered no explanation as to how he and his partner came to be in possession of $17,340 which was seized following a search by Police after being apprehended in the car park of the Galleria Shopping Centre.
The reference to $17,340 would appear to include the $450 found in Dong's handbag.
155 It is also contended by the respondent that the appellant's explanation for possession of the money was inconsistent with Mui Ngan's claim that she committed the offences of cultivation in order to pay off a debt to others. She did not say that she had given $10,000 to the appellant.
156 The respondent says that when interviewed by investigating police, the appellant made no claim that he was holding drugs for 'Tuan'.
157 The appellant did tell the writer of the pre-sentence report of 11 February 2008 that he held drugs for 'Tuan'. The report contains the following passage:
Mr Nguyen claimed that he would often hold drugs for a man he called 'Tuan' whom he had recently met in a Perth nightclub and when asked, he would deliver the drugs to various people and places across Perth. In return for making these deliveries, Mr Nguyen stated that he would receive 'free drugs' as well as working towards 'repaying money owed for drug debts'. Mr Nguyen claimed that he would simply 'drop off the drugs' and claimed that no money ever changed hands ...
158 The question is whether the sentencing judge was entitled to reject the account put forward on behalf of the appellant by his counsel.
159 During the course of sentencing submissions, the sentencing judge raised with counsel for the appellant the contention that the appellant had been holding the drugs the subject of counts 1 to 4 on the indictment on behalf of somebody else. The following exchange occurred:
EATON DCJ: Well, the significant consideration in relation to counts 1, 2, 3 and 4 is your proposition that he was actually holding them for somebody else.
PERCY, MR: That's what he says, but what we say is they are all - he's in possession of them all at the same time.
160 The prosecutor in his response to the submissions of counsel for the appellant made it clear that the prosecution did not accept the assertion that the appellant was holding the drugs for somebody else. He said:
In the end, it is our submission that all that your Honour really can go on is that he was found in possession of a multiple - I will start again, a variety of drugs in a substantial quantity with intent to sell or supply. There is no comfortable basis upon which your Honour should accept the assertion made in the - by the offender to the pre-sentence report writer and to the psychologist as to how he came to be in possession of them.
161 By this submission, the prosecutor made it clear that there was an issue between the prosecution and the defence about the circumstances in which the appellant came to be holding the drugs. At the same time, the prosecutor contended that, in the end result, it was the appellant's possession of a variety of drugs which constituted his possession with intent to sell or supply.
162 The sentencing judge (referring also to the circumstances in which the appellant came to be in possession of the money) responded by saying:
EATON DCJ: - - - I will weigh these matters in due course.
163 From this latter observation, it might be said that counsel for the appellant should have understood that the sentencing judge intended to make a determination from the submissions before him about the circumstances in which the appellant came to be in possession of the drugs and the money. Counsel for the appellant then had the opportunity of seeking a trial of those two issues at which he would have been obliged to have called evidence. Had evidence been called, there would have been an onus upon the appellant to prove that he had the drugs in his possession with intent only to supply them at the direction of Tuan and that he did not have an intent to sell or supply (s 11(a) Misuse of Drugs Act 1981 (WA)).
164 The appellant contends that the trial judge was under an independent obligation to conduct a trial of issues before reaching the determination that he did in relation to the circumstances of the possession of the drugs and the money. Counsel for the appellant relied upon M v Waldron [1988] NTSC 42; (1988) 90 FLR 355, a decision of Kearney J in the Supreme Court of the Northern Territory. At 358, Kearney J said:
... In general, where there is a dispute as to the sentencing facts and the defendant's version is not such as to be necessarily rejected, it should be acted on by the magistrate: see Wilmott (1977) 1 Crim LJ 216. But a magistrate may not be prepared to accept the version of the facts put forward by counsel for the defendant; in that case, he should inform counsel accordingly, and indicate that he would require the version to be supported by evidence: see R v Vecsey [1962] SASR 127. If he then hears evidence, and substantial conflict remains which he cannot resolve, he should as far as possible accept the defendant's version since doubt must be resolved in his favour: see R v Newton (1982) 77 Cr App R 13 and the review of the authorities in R v Gardiner (1982) 140 DLR (3d) 612 at 641-650. At the end of the day it is for a sentencing magistrate to decide which version of the facts he accepts, but he is obliged to give the defendant the opportunity to support by evidence the version of the facts put forward by his counsel, if he does not accept it: see Law v Deed [1970] SASR 374 at 378 and the illustration provided by R v Ahmed (1984) 80 Cr App R 295. In this case, the failure to afford the appellant that opportunity was an error which vitiated the sentence imposed.
165 M v Waldron was followed by Mildren J in Duthie v Smith [1992] NTSC 38; (1992) 107 FLR 458. Mildren J added at 463:
[T]he learned magistrate was not bound to accept a version of the facts put to the court by counsel for the respondent from the bar table. The court can reject the explanation if it passes the bounds of reasonable possibility, but, the learned magistrate ought not to have taken that course without giving the respondent an opportunity to support his story by his oath and that of any other witnesses he might call.
166 The two Northern Territory cases need to be read in light of what was said by McLure JA (with whom Steytler P and Wheeler JA agreed) in Hutchins v The State of Western Australia [2006] WASCA 258 at [25]:
A court in sentencing may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. If there are circumstances which the Judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probability: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 281. Further, if the prosecution seeks to have the sentencing Judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the Judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the Judge to do so and, again, if necessary, call evidence about it. The calling of evidence would be required only if the asserted fact was controverted or if the Judge was not prepared to act on the assertion: Olbrich at 281.
167 In the present case, it is arguable that the sentencing judge's statement that he would 'weigh [the] matters in due course' was a clear invitation to counsel for the appellant to call evidence if he wished to do so. If not, the sentencing judge was going to weigh the material as it stood.
168 In my opinion, it is unnecessary to reach a concluded view about this, because the appeal can only succeed on this ground if this court is of the opinion that a different sentence should have been imposed (Criminal Appeals Act 2004 s 31(4)(a).)
169 Assuming that the sentencing judge was wrong to conclude as he did against the appellant's submissions that he was holding the drugs for Tuan and that he had possession of the money otherwise than from drug dealing, the question still arises whether this court would impose a different sentence from the sentences imposed by the sentencing judge.
170 I have already made sufficient reference to authority to indicate that the sentence of 4 years' imprisonment for the combination of offences which constituted counts 1 to 4 on the indictment was a sentence well below the range of sentences that could have been expected in the circumstances. The Director of Public Prosecutions submitted that it 'beggars belief' that standing alone the offences constituted by counts 1 to 4 on the indictment would have led to an aggregate sentence of anything less than 4 years' imprisonment. This submission is made on the assumption that the appellant's contentions about the circumstances in which he had possession of the drugs and possession of the money could be accepted. I agree with it. On no view could it be said that the aggregate sentence imposed in relation to the offences constituted by counts 1 to 4 on the indictment reflected a sentence within the range of sentences that could be expected for possession with intent to supply (assuming it was the appellant's intention to supply only) drugs of the nature and in the quantity held by the appellant.
171 In the circumstances, whatever the reason for the appellant holding the drugs and whatever the reason for his possession of the sum of money, it seems to me that ground 4 must be dismissed because the Court of Appeal could only allow the appeal on this ground if, in its opinion, a different sentence should have been imposed. In my opinion, not only is it the case that no different sentence should be imposed, but the sentence that was imposed was a lenient one in the circumstances. I would therefore dismiss ground 4.
Possess/I = Possession with intent to sell or supply
Cultivate/I = Cultivate with intent to sell or supply
8 It seems plain that the sentencing judge accepted that Mui played a lesser role in the cultivation than did her son. That she did play a lesser role might be supported by the fact that she was convicted only of simple possession of the cannabis that had already been harvested. The sentencing judge said that Mui had 'less to gain' from the enterprise than others. I assume that, by this, he was referring to financial gain. In these circumstances, I would not be prepared to accept that there is a disparity between the terms imposed on the appellant and Mui respectively on counts 5 and 7 that is sufficient to engender a justifiable sense of grievance on the appellant's part: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609 - 610 (Gibbs CJ), 613 - 614 (Mason J), 623 (Dawson J).
16 Of course, as Miller JA has pointed out, a finding of disparity is not necessarily determinative. It is open to an appellate court to conclude that, when the more severe sentence is already as lenient as it could sensibly be, having regard for the need to protect the public and the dictates of the public conscience, that there should be no justifiable sense of grievance in declining to interfere with that sentence on parity grounds merely because another sentence is even more lenient: I v The State of Western Australia [2006] WASCA 9 [66]; Hassan v The State of Western Australia [2006] WASCA 139 [19]; Parfitt v The State of Western Australia [2007] WASCA 11 [19] - [20], [49] and Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] - [12].
17 In the present case it seems to me that, although the terms of 3 years' imprisonment imposed on the appellant in respect of the two cultivation offences, and the total term of 10 years' imprisonment imposed upon him in respect of the whole of his offending, are within an acceptable range of discretion for offences of that kind (see Day v The Queen [2001] WASCA 284; (2001) 127 A Crim R 403 and Noble v The Queen [2003] WASCA 83, each of which is discussed in Miller JA's reasons), it cannot be said that those sentences are already as lenient as could sensibly be imposed. In all of the circumstances, the disparity in sentencing as between the appellant and Dong seems to me to be sufficient to give rise to a justifiable sense of grievance. It consequently seems to me that the applicable principles (more fully referred to in the judgment of Miller JA) require that there be some reduction in the sentences imposed on the appellant. In my opinion, an appropriate reduction would be one of 9 months' imprisonment in respect of each of the sentences imposed in regard to the cultivation offences. I would consequently substitute for the sentences of 3 years imposed upon the appellant on each of counts 5 and 7, sentences of 2 years and 3 months' imprisonment. I would otherwise leave the orders made by the sentencing judge undisturbed.
19 As to ground 3, because I have already come to the conclusion that the total sentence imposed on grounds 5 and 7 should be reduced by 18 months, it seems to me that the totality argument must fail. It cannot sensibly be contended that a total term of 4 years and 6 months' imprisonment offends either limb of the totality principle (as to which see Postiglione v The Queen [1997] HCA 26; (1996) 189 CLR 295, 307 - 308 (McHugh J); Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26] (McLure JA)). As I have said, the cultivation, in each case, was very significant, with the total value of the crops grown being somewhere in the order of $648,000.
those indications, it seems to me, counsel for the appellant was sufficiently put on notice that his assertions from the bar table were not accepted by the prosecutor and might not be accepted by the sentencing judge. The appellant's counsel, an experienced Queen's Counsel, should consequently have been aware that, if he wished to establish what were plainly matters in mitigation, he was obliged to call evidence in support of them: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 281; Hutchins v The State of Western Australia [2006] WASCA 258 [25]. He made no effort to do so, perhaps for sound tactical reasons.
27 The next parity issue is whether the appellant has a justifiable sense of grievance when the total effective sentences are compared. It is not suggested that the parity principle has no application to the total sentence. The submissions put on behalf of the appellant focus on the orders for cumulation and concurrence in relation to the cultivation offences. When considering parity it is, in my respectful view, erroneous to focus on individual orders for cumulation and concurrence as they relate to any particular offence. It is the case that there are general rules that affect whether, on a prima facie basis, sentences for multiple offences should be served cumulatively or partly concurrently (see Pearce v The Queen (1998) 194 CLR 610; R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [21] - [28]). However, these general rules are always subject to the totality principle. When sentencing for multiple offences, the sentencing court must apply the totality principle which requires, among other things, the total effective sentence to be a just and appropriate measure of the total criminality involved in the conduct as a whole: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. The practical effect of the totality principle is ordinarily to arrive at a total sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder (1983) 3 NSWLR 245, 260. Once the sentencing judge has determined on what is to be the appropriate total sentence for
85 These passages from Lowe state the general principle, but must be read subject to the observations of this court in a number of cases where it has been held that the principle of parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offences in question. In Billing v The State of Western Australia [No 2] [2008] WASCA 11, Steytler P (at [11] - [12]) summarised the effect of those cases in the following way:
114 The so-called 'one transaction rule' was described in Walgar v The State of Western Australia [2007] WASCA 241 by McLure JA at [9] in the following terms:
115 It is to be observed that even if the two cultivations here could properly be said to be part of the one transaction, the sentencing judge was still required to impose sentences which resulted in an appropriate measure of the total criminality involved in the appellant's conduct. Whichever way one looks at it, it seems to me that a proper measure of the appellant's criminality necessitated that there should be cumulative sentences in relation to the two convictions for cultivation of cannabis at the two separate locations. I do not consider the case to be governed by Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. This was not a case in which the appellant was charged with two offences containing common elements in respect of which he was twice punished for the commission of the elements that were common (see Pearce per McHugh, Hayne and Callinan JJ at [40]). There was commonality in the sense that both charges were charges of cultivation of cannabis, but they were truly separate offences in the sense that they were offences of cultivation at different locations. This was not a case of double punishment for the one act (Pearce per McHugh, Hayne and Callinan JJ at [43]). It was a case of double punishment for two acts. The two acts were constituted by the two separate cultivations at two different addresses.
116 Counsel placed reliance upon Johnson v The Queen [2004] HCA 15; [2004] 78 ALJR 616. In that case, the appellant had pleaded guilty to two offences, one of attempting to obtain possession of a commercial quantity of ecstasy and one of attempting to obtain possession of a trafficable quantity of cocaine. The appellant was convicted on the basis of collecting one parcel containing both drugs in a controlled delivery organised by Australian Federal Police officers. The Court of Criminal Appeal was found to have failed to properly consider the appellant's appeal by making factual errors. It erroneously relied on the fact that there were two parcels to reject the appellant's submission that it would be wrong to punish him twice for the commission of the elements that were common between the two offences. Gummow, Callinan and Heydon JJ said at [33] - [34]:
It is true that the appellant pleaded guilty to two offences, but they had much in common: one inducement, one payment for performance, one occasion, one package and one receipt of it by the appellant. This commonality did require that careful regard be had, in deciding the appellant's appeal, to the totality principle. The error in relation to the number of packages and the failure to refer to the numerous common elements strongly suggests that this did not occur.
A further error has been demonstrated. It was not for the Court of Criminal Appeal (per Malcolm CJ) to reject a principle stated by this Court, that account must be taken of the commonality of elements of offences in the sentencing process, on the erroneous basis that the application of the principle would, or indeed possibly could, obscure a particular fact, 'that the [appellant] took possession of two separate parcels of two separate drugs' [Johnson [2002] WASCA 102; (2002) 26 WAR 336 at 344 [26]]. Application of a principle cannot obscure a fact. Facts either lend themselves to the application of a particular principle or not. The error in this regard was compounded by the serious factual misconception in relation to the fact in question, that there were two parcels rather than one.
The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved [See Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63]. In Kelly v The Queen [1992] FCA 7; (1992) 33 FCR 536 at 541 O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi Unreported; Court of Criminal Appeal of SA; 20 April 1988:
124 It is commonly accepted in this jurisdiction that the principle comprises two limbs. It was said in Roffey v The State of Western Australia [2007] WASCA 246 by McLure JA at [24] - [26]:
[T]he totality principle ... comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).
127 In my opinion, the structuring of the sentences properly reflected the total criminality of the appellant's conduct. It 'fairly and justly reflected the total criminality' of that conduct (Jarvis v The Queen (1993) 20 WAR 201 (Ipp J) 207) and it could not be said that an aggregate sentence of 10 years' imprisonment was, in the circumstances of the case, a crushing one. The appellant was convicted of multiple drug offences and an aggregate sentence of 10 years' imprisonment reflected, in my opinion, the total criminality of his conduct without the sentence being crushing. If anything, the aggregate sentence was lenient in the circumstances of the offending. This can be demonstrated by reference to the sentences imposed for the first four counts on the indictment alone. The offences the subject of those counts involved possession with intent to sell or supply close to 600 g of 'hard' drugs. Of those drugs, 343 g related to heroin and methylamphetamine, both narcotic drugs considered by the courts to be at the top end of the hierarchy of drugs: The State of Western Australia v Higgins [2008] WASCA 157 per Steytler P at [109].
128 In Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107, it was made clear that sentences of up to 15 years' imprisonment (under the old sentencing regime) are appropriate for the offence of possession with intent to sell or supply of large quantities of methylamphetamine (Miller JA [41], McLure JA [49]).
129 If the range is taken to be 11 - 15 years under the old regime (see Tulloch per McLure JA at [48]), that is a range of 7 1/2 - 10 years' imprisonment after application of the transitional provisions (Sentencing Legislation Amendment and Repeal Act 2003 (WA) sch 1 cl 2) (see also Bosworth v The State of Western Australia [2007] WASCA 144 (Miller JA [40]).
139 In R v Lyon [2001] WASCA 120; (2001) 121 A Crim R 440, the sentence imposed upon the offender for possession with intent to sell or supply of almost 8 kg of cannabis was the equivalent of a 1 year 8-month sentence post-transitional. This was a prosecution appeal against sentence, but a ground contending that the sentence imposed was manifestly inadequate in all the circumstances was abandoned, leaving only a ground which contended that the sentence imposed below (a suspended sentence) was an error. All members of the court (Malcolm CJ, Anderson and Steytler JJ) agreed that the suspended sentence of 2 1/2 years' imprisonment should be set aside and a sentence of immediate imprisonment of 2 1/2 years should be substituted. Anderson J, with whom Steytler J agreed, said, at [36]:
140 In Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186, the appellant was sentenced after trial for possession with intent to sell or supply of 2 kg of cannabis. He was sentenced to 2 years 8 months' imprisonment (cumulative) for this offence and for breach of a suspended sentence earlier imposed for cultivation of cannabis with intent to sell or supply. These were post-transitional sentences.
145 A later 'cultivation' case was Noble v The Queen [2003] WASCA 83. Noble was convicted after trial of two counts of cultivation with intent to sell or supply. One count related to a 'grow house'. The number of plants was much less than in the present case, with only 48 and 36 plants respectively in each of the two places. The 48 plants were being grown hydroponically in a spare bedroom cupboard in the appellant's house and the 36 plants were being grown hydroponically in premises at Greenwood. This latter house was set up with lights, extractor fans, piping and reflective sheeting in a room in which the plants were growing. The operation was described by the trial judge as cultivation on a moderate commercial scale. The sentences were 6 months' imprisonment on the first count (the appellant's house) and 2 years' imprisonment on the second count (the Greenwood house). The total effective sentence was 2 years' imprisonment. This was a pre-transitional sentence, the equivalent of which would now be 1 year 4 months.
(1998) 194 CLR 610
(1997) 189 CLR 295
(1983) 3 NSWLR 245
(1986) 42 SASR 580
(2002) 26 WAR 336
(1988) 166 CLR 59
(1992) 33 FCR 536
(1994) 14 WAR 341
(1998) 20 WAR 201
(1993) 20 WAR 201
(1988) 90 FLR 355
(1977) 1 Crim LJ 216
(1992) 107 FLR 458
(1984) 154 CLR 606
(1996) 189 CLR 295
(1999) 199 CLR 270