Court of Appeal (WA)|2013-02-11|Before: Martin CJ

OZAN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 27 (11 February 2013)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : OZAN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 27

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence by offender - Multiple counts of dealing in prohibited drugs - Total effective sentence of 14 years' imprisonment with eligibility for parole - Whether the sentencing judge erred in failing to find that the appellant committed the offences as a result of pressure, falling short of the legal defence of duress, placed on him by others - Whether an individual sentence of 12 years' imprisonment was manifestly excessive - Whether the total effective sentence infringed the first limb of the totality principle

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

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

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

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

Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155

Kirby v The Queen [2003] WASCA 164

Law v The State of Western Australia [2009] WASCA 193

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

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170

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

Quach v The Queen [1999] WASCA 210

R v Storey [1998] 1 VR 359

Reid v The State of Western Australia [2012] WASCA 23; (2012) 210 A Crim R 587

Sinagra-Brisca v The Queen [2004] WASCA 68

West v Government Insurance Office of NSW [1981] HCA 38; (1981) 148 CLR 62

1 MARTIN CJ: This appeal should be dismissed for the reasons given by Buss JA with which I agree.

3 The appellant, Mark Vick Kitis, David Tanevski, Steve Milenkovski, Paul Da San Martino and Hao Bi were charged on indictment with one or more offences against the Misuse of Drugs Act 1981 (WA) (the Act).

(a) Count 1: on 4 December 2009, at Stirling, the appellant supplied a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the Act.

(b) Count 2: on 4 December 2009, at Stirling, Mr Milenkovski and Mr Da San Martino had in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it another, contrary to s 6(1)(a) of the Act.

(c) Count 3: on 25 February 2010, at North Perth, the appellant attempted to supply a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) read with s 33(1) of the Act.

(d) Count 4: on 25 February 2010, at Yokine, Mr Bi attempted to supply a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) read with s 33(1) of the Act.

(e) Count 5: on 25 February 2010, at Yokine and elsewhere, Mr Milenkovski, Mr Kitis and Mr Tanevski attempted 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(1) of the Act.

(f) Count 6: on 25 February 2010, at Stirling, Mr Kitis 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.

5 Mr Tanevski, Mr Milenkovski, Mr Da San Martino and Mr Bi maintained pleas of not guilty to the offences alleged against them. Their trial commenced in May 2012.

6 Initially, the appellant pleaded not guilty. His trial was listed to commence on 8 August 2011. However, on 1 August 2011 he entered pleas of guilty to the offences alleged against him (counts 1 and 3).

7 Initially, Mr Kitis pleaded not guilty. His trial was listed to commence on 8 August 2011. However, on 4 August 2011 he entered pleas of guilty to the offences alleged against him.

8 A dispute emerged between the appellant and the State as to the proper factual basis for his sentencing. As a result, on 13 December 2011 a trial of issues was conducted before the sentencing judge, Scott DCJ. At the conclusion of the trial of issues, the appellant was remanded in custody for sentencing on 19 December 2011.

9 On 19 December 2011, the appellant was sentenced for counts 1 and 3. Count 1 concerned the supply of 2.675 kg of methylamphetamine, having a purity ranging between 17% and 19%. His Honour imposed a term of 2 years' imprisonment (reduced from 9 years in the application of the totality principle) for this offence. Count 3 involved an attempt to supply 4.983 kg of methylamphetamine, having a purity ranging between 53% and 69%. His Honour imposed a term of 12 years' imprisonment for this offence. The individual sentences were ordered to be served cumulatively. The total effective sentence was therefore 14 years' imprisonment. A parole eligibility order was made. The total effective sentence was backdated to commence on 25 February 2010, being the date on which the appellant was taken into custody for the offences.

The facts and circumstances of the offending: count 1

10 During November and December 2009, Mr Milenkovski made an arrangement with Lei Zhang and Hakan Ayik, who were drug suppliers, for a large quantity of methylamphetamine to be concealed in a motor vehicle and for the vehicle to be transported from Sydney to Perth on a truck.

11 During November 2009, the appellant, who resided in Sydney with his wife, purchased a motor vehicle in which the methylamphetamine was to be concealed. He used a false name in purchasing the vehicle. He delivered the vehicle to a transport company and, using a false name, arranged for it to be transported on a truck from Sydney to Perth.

12 On 24 November 2009, the motor vehicle left Sydney in the custody of the transport company.

13 On 4 December 2009, the appellant, using a false name, travelled from Sydney to Perth on a commercial airline flight.

14 On arrival in Perth, the appellant collected the motor vehicle from the transport company and drove it to a hotel car park. He removed the methylamphetamine and left the vehicle in the car park. Later, police searched and seized the vehicle. Blood was located in the vehicle. A partial DNA profile, which matched the appellant's profile, was obtained from the blood.

15 After removing the methylamphetamine from the motor vehicle, the appellant, using a false name, booked a room in another hotel. He paid for the room with cash. The appellant met Mr Da San Martino and delivered the drugs to him. Later that day, the appellant returned to Sydney on a commercial airline flight.

16 On the same day on which the appellant delivered the methylamphetamine to Mr Da San Martino, the police searched Mr Da San Martino's residence. They discovered the drugs, which were hidden in a barbecue in a shed. The drugs comprised 2.675 kg of methylamphetamine with a purity ranging between 17% and 19%. The drugs had a value of about $1,300,000. Forensic analysis of one of the bags containing the drugs revealed blood which gave a partial DNA profile matching the appellant's profile.

The facts and circumstances of the offending: count 3

17 During February 2010, Mr Milenkovski arranged another illicit drug transaction with Mr Zhang and Mr Ayik. Once again, the transaction involved concealing a large quantity of methylamphetamine in a motor vehicle and transporting the vehicle from Sydney to Perth on a truck.

18 The appellant was also responsible, on this occasion, for purchasing a motor vehicle in which the methylamphetamine was to be concealed and delivering the vehicle to a transport company. The appellant performed these functions, again using false names.

19 On 15 February 2010, the motor vehicle left Sydney in the custody of the transport company.

20 In Adelaide, police intercepted the motor vehicle and located 4.983 kg of methylamphetamine, with a purity ranging between 53% and 69%, in a spare tyre. The value of the drugs, at that level of purity, was about $2,489,000. The police replaced the drugs with an inert substance. The vehicle continued its journey to Perth.

21 On 25 February 2010, the appellant, using a false name, travelled from Sydney to Perth on a commercial airline flight.

22 On arrival in Perth, the appellant collected the motor vehicle from the transport company and drove it to a car park in Bayswater. He then travelled by taxi to North Perth where he handed the keys of the vehicle to Mr Bi. Mr Bi met with Mr Kitis and gave him the keys. Mr Kitis drove the vehicle, in convoy with Mr Tanevski, to his brother's house where the inert substance (which they believed to be methylamphetamine) was removed and stored.

23 Later on 25 February 2010, the appellant was arrested by the police. He had in his possession numerous items of false identification and other incriminating documents.

24 During a subsequent search of the appellant's home in Sydney, police located other items of false identification, 196.5 g of methylamphetamine having a purity of 20.55%, a set of electronic scales, a large quantity of cash (in excess of $37,000), more than 30 mobile telephones and numerous SIM cards.

25 When the appellant was arrested he declined to be interviewed by the police and refused to reveal his true name and address.

26 The appellant relies on three grounds of appeal.

27 Ground 1 alleges that the sentencing judge erred in failing to find that 'pressure was placed on the appellant by others to commit the [offences]'.

28 Ground 2 alleges that the sentence imposed for count 3 (12 years' imprisonment) is manifestly excessive.

29 Ground 3 alleges, in substance, that the total effective sentence of 14 years' imprisonment infringes the first limb of the totality principle.

30 On 6 May 2012, Mazza JA granted leave to appeal on ground 3 and referred the application for leave to appeal on grounds 1 and 2 to the hearing of the appeal.

Ground 1: the appellant's case before the sentencing judge

31 Defence counsel (who was not counsel for the appellant in the appeal) contended before the sentencing judge that the appellant committed the offences as a result of pressure (falling short of the legal defence of duress) placed on him by others.

32 At the trial of issues the appellant did not give evidence.

33 Defence counsel did, however, call the appellant's wife, Tulin Coben, as a witness. She gave evidence, which was relevantly unchallenged, to the following effect:

(a) In May 2009, the appellant, without prior warning, moved with her to a hotel in Sydney (ts 392).

(b) The appellant told her that they were in danger. He was '[very] upset and stressed' at the time (ts 392).

(c) The appellant and his wife, within days of moving to the hotel, travelled overseas. They left on 14 May 2009 and returned on 4 August 2009 (ts 392). The trip was unplanned (ts 393 - 394). The appellant's father gave them money to pay for the trip. The appellant was visited by a man while they were in Turkey. After the visit, the appellant appeared to be extremely stressed and upset. They returned to Sydney because they did not have the money to stay away any longer (ts 395).

(d) Within two months of their return, the appellant's boat, a small fibreglass runabout, was stolen and set on fire. It had been parked on a trailer outside their home (ts 396).

(e) On 18 January 2010, the appellant received a telephone call at home. After receiving the call he went outside. His wife followed him and saw the appellant walk down the street with a large, muscular man. She saw the man punch the appellant in the face. The punch resulted in the loss of a tooth (ts 397 - 398).

(f) The appellant was variously described as upset, stressed, extremely upset, confused and not sleeping much at or about the time when these incidents occurred.

34 The material before his Honour included a pre-sentence report dated 26 September 2011 and a psychiatric report dated 28 October 2011 from a consultant psychiatrist, Dr SD Febbo.

35 The author of the pre-sentence report recorded the appellant's account to her of the circumstances which prompted his involvement in the offences:

[The appellant] advised that approximately two years ago he was introduced to a man through a friend with whom he had attended college. He said he struck up a friendship with this man and said that shortly thereafter he commenced washing his car for him. He said he would attend [the appellant's] address every two weeks to have his car washed. [The appellant] said he did this for him as a favour, as he had room at his house in order to wash a car, [but] his friend did not. He said that this led to him being introduced to some other men, who would then do the same thing. [The appellant] said he would also help them in other ways, such as repairing their cars and motorcycles and that as a result these men would often frequent his home. He said, however, that he did not enjoy the company of these people, but would carry out these favours in order to 'keep the peace', and also as they were 'bigger than [him]' and he found them intimidating. He said that shortly thereafter these men asked if he may know of anyone who had a cheap car to purchase. They subsequently suggested that he purchase a car in order for it to be sent to Western Australia. He said he declined and was not sure why he was being asked to do such a thing. However, he said that this led to him being verbally threatened and intimidated. In his words, he said that from there things 'spiralled out of control'. He said that he was asked then to deliver a package to Western Australia and that he would be paid. He declined again. He said however, that these people then implied that he somehow owed them money and began demanding that he provide them with money. He said that on one occasion these men attended his house whilst he was working in his garage and showed him that they had a gun.

As a result [the appellant] said he decided to try and flee with his wife and so left for Turkey, where his family originates from and his mother has a house. However, he said that whilst he was at this house in Bodram, Turkey, he was again approached by one of these men who advised him that he must return to Australia. He said he agreed at that stage to return and said he would try and 'work something out'. He said he subsequently gave these people $2000, thinking that this would appease them. However, he said this was not the case and shortly thereafter his boat was set on fire in the middle of the night. Two weeks after this, he said that these men attended his residence again and on this occasion he was assaulted, resulting in his tooth being punched out. His wife advised that she witnessed this assault.

[The appellant] said that he was threatened that if he went to the Police, he would be killed. He said there were also threats made toward his wife, specifically that she would be sexually assaulted, or that harm may come to his other family members, including his autistic brother. [The appellant] said he took these threats very seriously and hence agreed to become involved in the current offences. He said that he agreed to do what was asked of him on the proviso that he and his family were left alone. However, following the first offence, he said that he was then asked to carry out the second transportation.

[The appellant] indicated that he has been reluctant to make disclosures to the police for fear of reprisals against himself or his family members. He claims his wife continues to receive threats and he is concerned for her wellbeing.

[The appellant's wife] was contacted and confirmed all details provided by her husband, without any prompting from the author during the discussion (1 - 2).

36 Dr Febbo recounted in his report the appellant's assertions to him about the events culminating in his commission of the offences:

[The appellant] said that, two and a half years ago, whilst living in a small unit in Kogarah with his wife, he met a friend that he knew whilst at college. The two became close friends and his friend was ' ... always dropping past'. In addition his friend ' ... introduced me to a few of his friends that lived in Kogarah as well'. He said 'those people started to become my family' and, for example, they asked him to do certain tasks such as 'wash their car'. He said 'maybe they would give me thirty [or] fifty dollars or go out to eat'. These individuals then ' ... brought a motorbike, and he would wash and polish [it]'. He said 'they would hang around ... it went from there really'.

These same individuals then asked him if he knew ' ... anyone [that] wanted to sell their car for between three and five thousand dollars'. They then asked to buy the car and that ' ... they would give me the money to buy the car'. He said ' ... they gave me [five thousand dollars] to buy a small four wheel drive'. He said that he kept this vehicle next door in a neighbour's garage for three to four weeks.

[The appellant] said that he was then asked if he would transport the car to Perth, either drive the vehicle or use a transport company.

[The appellant] said that it was at this point that he told the others that he did not wish to transport the vehicle and that he had his ' ... own job'. He said 'they insisted [and it] escalated from there'. He said that he was threatened verbally and told 'I would be bashed' if he did not do what he was told. He said ''they suddenly turned on me ... that I should do as I am told'. He continued and said ' ... the threats went on and on, turn up at late hours of the night'.

[The appellant] said that he decided that it was not safe and he travelled to Turkey. His mother was there at the time. [The appellant] said that he and his wife had been in Turkey for about a month when ' ... one day ... one [of these individuals] turned up'. He said that he was told that he would need to return to Australia and that he had been 'messing' them around.

On specific enquiry as to whether he was suspicious of their motives, [the appellant] said, 'something didn't sound right'. He told the individual in Turkey that he would return and he returned with his wife. He made contact with them and told them that he 'did not want trouble'. [The appellant] said that he was then asked for, ' ... a small photo' so he could get a false licence. He was given a backpack and there were six objects in the sealed bag. He was told to place these items in the vehicle and to transfer the vehicle across. He said that he 'had a suspicion it was drugs, it couldn't be anything else'.

[The appellant] said that the vehicle was transported by truck and 'they organised flights to go to Perth'. He flew across and ' ... I gave it to someone ... and that's it, my job was done'.

[The appellant] said that two months later they made contact with him again and he was told that he had to do this all over again.

[The appellant] said that on the second occasion he 'refused even more ... enough is enough'. He said that, between the first and second offence 'my boat was burnt'. There was significant conflict and on one occasion 'someone pulled out a gun'. He was also 'bashed' and he lost his tooth.

[The appellant] said that he then agreed and they went through the same process of buying a car. [The appellant] said that, on various occasions during this time, he was threatened that his wife would be raped.

On specific enquiry as to why [the appellant] did not take his concerns to the police he said, ' ... I don't know, I was too scared'.

[The appellant] said that, when he came to Perth a second time, on the way back the flight was delayed and he was arrested (2 - 3).

37 Dental records tendered at the trial of issues confirmed that on 18 January 2010 the appellant sought treatment from a dentist for the loss of a tooth.

38 The sentencing judge gave oral reasons in relation to the trial of issues in the course of imposing sentence on the appellant.

39 His Honour summarised the evidence given by the appellant's wife. He also noted defence counsel's submission to the effect that the following evidence proved that the appellant had acted under 'duress' when he committed the offences:

(a) the appellant told his wife that they were fleeing to the hotel because they were in danger;

(d) on 18 January 2010, the appellant was assaulted (ts 686).

40 The sentencing judge was not satisfied on the balance of probabilities that the appellant had committed either of the offences under 'duress or threat' (ts 687). His Honour supported that conclusion with these reasons:

I made a suppression order. However, you did not give evidence. There may be reasons unknown to me why you did not do so. However, you are the person best placed to give evidence as to the circumstances in which you say you were threatened, when you were threatened, the exact nature of the threats, the effect that any threats had on you and your reasons for not going to the police or taking any other step than committing these offences.

The fact that you did not give evidence is of no criticism to you or your advisors but results in a substantial lack of evidence upon which I could make any finding that you acted under duress or under threats such that your moral culpability for committing these offences was lessened.

I accept your wife's observations as to the change in your demeanour. That, however, does not lead me to infer that you were acting under duress or in respect to or in response to threats. You might equally have simply been apprehensive about the prospect of apprehension by the police for being involved in this significant drug dealing.

In addition, there is a stark inconsistency between what you apparently told the author of the pre-sentence report and Dr Febbo. You were given an opportunity to explain the inconsistency but chose not to so. The inconsistency is important.

On the one hand, in the pre-sentence report you appear to have told the author that these people were intimidating, they were big and they were the persons who threatened you. To Dr Febbo you said that they became like family to you and indeed, as the State says, that was to some extent true given that Mr Ayik was your wife's uncle (ts 687 - 688).

Ground 1: the appellant's submissions in the appeal

41 Counsel for the appellant submitted that the evidence of the appellant's wife had to be evaluated in the context that the appellant had no relevant prior criminal record and that there was no evidence that he had criminal associations other than in connection with the offences in question.

42 Counsel criticised the sentencing judge's fact finding in relation to the evidence of the appellant's wife about the changes in the appellant's demeanour (ts 687). According to counsel, his Honour failed to have regard to the objective events to which this change in demeanour was connected; in particular, to the burning of the boat and the assault.

43 As to his Honour's observations concerning the apparent differences in the appellant's accounts, as recorded in the pre-sentence report and the psychiatric report, it was submitted on the appellant's behalf that there was no relevant inconsistency. Counsel argued:

(a) the statement that 'those people started to become my family', as set out in the psychiatric report, predated, on the account in this report, the making of any threats;

(b) Dr Febbo stated that the appellant had said that the same people subsequently made threats to him;

(c) nothing in the pre-sentence report or the psychiatric report contradicted relevant evidence from the appellant's wife which was not challenged; and

(d) a sentencing judge should exercise care before placing weight on what are alleged to be inconsistent accounts given by an offender.

44 Counsel for the appellant submitted that, on the evidence, the only finding reasonably open to the sentencing judge was that the appellant was subjected to 'some pressure' to commit the offences. Although the nature and extent of that pressure was not established with any precision, it was nevertheless a relevant factor to be taken into account in determining the appropriate sentencing outcome.

45 In Law v The State of Western Australia [2009] WASCA 193, I summarised several well-established propositions in relation to the basis on which a sentencing judge must impose sentence where the offender pleads guilty [25] - [34] (McLure & Pullin JJA agreeing).

46 The role of a sentencing judge includes the making of findings of fact, for the purposes of sentencing and to the extent that the judge is able to make relevant findings, on the material received during the sentencing process. See, generally, s 15 of the Sentencing Act 1995 (WA), which provides that, to decide on the proper sentence to be imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit.

47 An aggravating circumstance is a fact or other circumstance likely to result in a more severe sentence than would otherwise be the case. A mitigating circumstance is a fact or other circumstance likely to result in a less severe sentence than would otherwise be the case. The prosecution must prove an aggravating circumstance beyond reasonable doubt, and the offender must prove a mitigating circumstance on the balance of probabilities. See R v Storey [1998] 1 VR 359, 369, 371 (Winneke P, Brooking & Hayne JJA and Southwell AJA); R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [24], [25], [27] (Gleeson CJ, Gaudron, Hayne & Callinan JJ).

48 So, in the present case, the onus was on the appellant to prove, on the balance of probabilities, that he committed the offences as a result of pressure (falling short of the legal defence of duress) placed on him by others.

49 At common law, there are only two standards of proof, namely satisfaction beyond reasonable doubt and satisfaction on the balance of probabilities. See Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361 (Dixon J); Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, 712 (Dixon, Evatt & McTiernan JJ); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 170 - 171 (Mason CJ, Brennan, Deane & Gaudron JJ).

50 In Briginshaw, Dixon J said, in the context of proving facts:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed (361).

51 In Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, Dixon CJ said, in the context of drawing inferences:

It is true that 'you need only circumstances raising a more probable inference in favour of what is alleged'. But 'they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture'. These phrases are taken from an unreported judgment of this Court in Bradshaw v McEwans Pty Ltd (Unreported, delivered 27th April 1951) which is referred to in Holloway v McFeeters ((1956) [1956] HCA 25; 94 CLR 470), by Williams, Webb and Taylor JJ. The passage continues: 'All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.' ((1956) 94 CLR, at pp 480,481). But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied (304 - 305). (emphasis added).

See also Jones v Dunkel (305) (Kitto J); West v Government Insurance Office of NSW [1981] HCA 38; (1981) 148 CLR 62, 66 (Stephen, Mason, Aickin & Wilson JJ); Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155, 161 - 162 (Stephen J), 168 - 169 (Mason J).

52 In the present case, the State did not accept the truth or accuracy of the appellant's self-serving out of court statements to the author of the pre-sentence report and Dr Febbo to the effect that he had been subjected to pressure (including threats, intimidation, the burning of the boat and the assault) to commit the offences.

53 Although the appellant was not, of course, obliged to give evidence in support of his contention that he had been subjected to this pressure, there was, as a result of his decision not to enter the witness box, no direct evidence that:

(a) the burning of the boat or the assault induced, or was connected with, the appellant's criminal conduct; or

(b) he had been subjected to any other threats or intimidation or that any other threats or intimidation (if made) induced, or were connected with, the offences.

54 The appellant's wife gave evidence that at material times he was upset, stressed, confused and suffering from insomnia. However, she was unable to give any evidence that the appellant's emotional state was attributable to any threats or intimidation calculated to induce, or connected with, his participation in the offences. His Honour accepted the evidence of the appellant's wife about the changes in his demeanour.

55 I am not persuaded that the sentencing judge failed to evaluate the changes in the appellant's demeanour in the context of the absence of a relevant prior criminal record, the burning of the boat, the assault and other relevant facts and circumstances. In any event, the critical point in his Honour's assessment of the material before him was the absence of any direct evidence of a nexus between the appellant's criminal conduct, on the one hand, and the burning of the boat, the assault and any other threats or intimidation (if made), on the other.

56 There is some merit in counsel for the appellant's submission in relation to his Honour's finding of a relevant inconsistency between the appellant's accounts, as recorded in the pre-sentence report and the psychiatric report. On my reading of the reports, any inconsistency in his accounts was not significant. This point does not, however, compromise or vitiate his Honour's conclusion that he was not satisfied that the appellant had committed either of the offences as a result of pressure placed on him by others. It is apparent, from his Honour's reasons, that the alleged inconsistency was not essential to his conclusion.

57 In my opinion, it was open to the sentencing judge to conclude that he was not satisfied on the balance of probabilities that pressure had been placed on the appellant by others to commit the offences. The lack of direct evidence from the appellant, verified on oath or affirmation, that:

(a) the burning of the boat or the assault induced, or was connected with, his criminal conduct; or

(b) he had been subjected to other threats or intimidation, and these other threats or intimidation induced, or were connected with, the offences,

58 The absence of a relevant prior criminal record, the burning of the boat and the assault, when evaluated with the evidence of the appellant's wife about the changes in his demeanour, did not require his Honour to find that the contention advanced on the appellant's behalf had been made out.

60 Finally, before moving to the other grounds of appeal, I should note that his Honour did not make any findings of fact in relation to some of the items found by the police in the appellant's home which are ordinarily part of the paraphernalia of drug dealing; for example, the items of false identification, the set of electronic scales, the 30 mobile telephones and the numerous SIM cards.

61 The appellant's wife, in the course of her evidence, gave an innocent explanation about the large quantity of cash (in excess of $37,000) found by the police (ts 391). His Honour said that he was 'sceptical' about her assertion that the cash comprised wedding gifts to her, but he was not satisfied that the cash was related to illicit drug dealing (ts 684). His Honour did not, however, make any findings in relation to the other items I have mentioned.

62 The sentencing judge said that the sentences he would impose '[would not be] affected ... one way or the other' by the appellant's conviction and sentence in New South Wales for his offending in relation to the 196.5 g of methylamphetamine with a purity of 20.55% (s 688). I observe that counsel for the State informed this court that these drugs were 'the subject of pending charges in New South Wales', but it is unnecessary to resolve the discrepancy between this information and his Honour's statement that the appellant had been convicted and sentenced (AB 20 footnote 3) (emphasis added). Although there could not be any element of double punishment for that offending, the underlying facts (in particular, the discovery of the drugs in the appellant's home) were matters that could legitimately have been taken into account, depending on his Honour's findings of fact about the drugs and the appellant's connection with them, in assessing whether his Honour was satisfied, on the basis of the absence of a relevant prior criminal record, the burning of the boat, the assault and the changes in his demeanour, that pressure had been placed on the appellant by others to commit counts 1 and 3.

Ground 2: the sentencing judge's sentencing remarks

63 The sentencing judge found that the appellant's role in the offending was 'more than a mere courier' (ts 688). He elaborated:

With respect to each offence, you purchased a vehicle under a false name. You arranged for its transport to Perth under a false name. You flew to Perth under a false name. You then picked up the vehicle and transported it [to] those who were acting on behalf of the buyer. You were entrusted with a substantial asset.

Your counsel said that all couriers are entrusted with an asset of value. That is true. However, the level of trust must be proportionate to the value of the asset. In your case, you were entrusted with methylamphetamine worth over $1.335 million on the first offence and, conservatively, just under $5 million on the second offence. In my view, your role in the hierarchy must be properly classified as that being above a courier (ts 688).

64 As I have mentioned, the value of the methylamphetamine the subject of count 3 (the second offence), at its level of purity when seized by the police, was about $2,489,000. His Honour found that if the drugs had been diluted 'by one-half only', their value would have been 'just under $5 million' (ts 683 - 684).

65 Later in his sentencing remarks, his Honour said:

In this case, you are to be sentenced on the basis that you were, with respect to each of these two counts, not only a courier but a person who undertook arrangements in preparation for and in relation to the delivery of each consignment of methylamphetamine. In addition, you were a person in whom the suppliers, Zhang and Ayik, [reposed] a significant degree of trust.

You are not a person who I find to have been one of the principals. Nonetheless, you were an essential link in the chain of supply and delivery in each case (ts 691).

66 The sentencing judge referred to defence counsel's submission that the appellant did not receive any reward for his role. He found that submission 'hard to believe' (ts 688). Nevertheless, his Honour said that it was not a matter which would alter the sentences he proposed to impose. He decided that it was therefore unnecessary for him to make a finding as to the extent to which the appellant received remuneration for his participation in the offending.

67 The trial judge was of the view that the sentences to be imposed on the appellant must have 'as a component regard for personal deterrence so as to dissuade you from acting in this way in the future' (ts 690). His Honour then said:

Dr Febbo's opinion is that your risk of re-offending is very much at the lower end of the spectrum. I have, however, taken into account that one of the factors upon which Dr Febbo based his opinion was your assertion to him that you and your wife had been threatened about which I have already made a finding that I am not persuaded that those threats were made (ts 690).

68 His Honour accepted that the appellant's personal circumstances and antecedents were favourable. The appellant did not have a relevant prior criminal record. He was born on 30 June 1984. He was 25 when the offences were committed and 27 when sentenced. The appellant had the benefit of a positive childhood with caring and loving parents. He had a strong relationship with his wife whom he married when he was 22. He completed Year 12 at school and had partly completed a diploma in network engineering at university. The appellant had a good employment history. He was in good health.

69 The sentencing judge mentioned the appellant's late pleas of guilty. Defence counsel informed his Honour that the appellant had never denied his part in the offences and that the delay in the change of plea was attributable to a delay in the appellant receiving legal advice as to the likelihood of the defence of duress being made out. His Honour said, however, that there had been 'more than sufficient time for there to have been an earlier plea' (ts 689). The interval between the allocation of trial dates and the commencement of the trial was about eight months. Nevertheless, his Honour accepted that the late pleas had saved the State the expense of a trial. He also said the pleas of guilty demonstrated 'some remorse and contrition' on the appellant's part and an acceptance of his unlawful conduct (ts 689). The State's case against him was, however, strong.

70 His Honour noted that the appellant would suffer more hardship in custody than would otherwise be the case because he would be imprisoned in Western Australia and his wife and family resided in New South Wales.

71 As I have mentioned, the trial judge imposed a sentence of 12 years' imprisonment for count 3.

72 Counsel for the appellant submitted that the individual sentence for count 3 was manifestly excessive because the appellant was 'at the lowest level of the drug hierarchy'; he was not in a position to realise the value of the prohibited drugs; there was no evidence that he had any criminal connections other than with those responsible for the offences in question; personal deterrence was not a factor which warranted significant weight; he was relatively young at the time of the offending; and his personal circumstances and antecedents were favourable.

73 Counsel for the appellant also submitted that the sentences imposed in other, broadly comparable, cases supported the contention that the individual sentence for count 3 was manifestly excessive.

74 The maximum penalty for the offence of supplying a prohibited drug to another, contrary to s 6(1)(c) of the Act, is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the Act.

75 Since the enactment of the Misuse of Drugs Amendment Act 2004 (WA), this maximum penalty has also applied to the offence of attempting to supply a prohibited drug, contrary to s 6(1)(c) read with s 33(1) of the Act. Previously, the maximum penalty for this offence had been 12 years 6 months' imprisonment or a fine of $50,000 or both.

76 The culpability of an offender (including an offender who has been convicted of an attempt, as distinct from the completed offence, including an attempt to supply a prohibited drug, contrary to s 6(1)(c) read with s 33(1) of the Act), and the extent to which he or she should be punished, must be determined by reference to all the facts and circumstances of the particular offending and the offender. See Reid v The State of Western Australia [2012] WASCA 23; (2012) 210 A Crim R 587 [45] (Buss JA, McLure P agreeing). For example, ordinarily there will be no material difference in culpability between an attempt and a completed offence involving drug dealing where the intervention of law enforcement agencies to replace a prohibited drug with an inert substance prevents the commission of the completed offence. See Reid [45].

77 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.

78 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.

79 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; and the cases reviewed in those decisions.

80 It is unnecessary to reproduce the material facts and circumstances of the prior cases I have examined or the sentencing dispositions. The cases concerned with offences under s 6(1)(a) are relevant, for the purposes of comparison, to the offence in the present case against s 6(1)(c).

81 Count 3 was, without doubt, a very serious offence. The nature and extent of the appellant's criminality is demonstrated by the following:

(a) The appellant was involved in a very significant drug enterprise and his role in the enterprise was important.

(b) The appellant organised the transport from Sydney to Perth of what he knew was a substantial quantity of a prohibited drug that was intended for distribution into the community. After organising the transport of the methylamphetamine, the appellant travelled to Western Australia to take custody of the vehicle in which the drugs were hidden and then to deliver the drugs to an associate. So, the appellant was involved both in New South Wales and in Western Australia in relation to this transaction.

(c) His Honour's statement, in his sentencing remarks, that 'the level of trust' reposed in drug couriers 'must be proportionate to the value of the asset [that is, the drugs they are transporting]' (ts 688), is not correct as a general proposition. That is, the level of trust reposed in a drug courier is not necessarily directly proportional to the value of the drugs he or she is carrying. However, in the present case, the appellant's involvement was not of a short duration and he appears to have carried out his work in New South Wales and Western Australia with a degree of autonomy. This indicates that he was trusted by more senior people in the criminal hierarchy.

(d) The nature and extent of the appellant's involvement in the offending, and the trust reposed in him by more senior people in the criminal hierarchy, shows that the appellant was not at the lowest level of the enterprise.

(e) The weight, purity and value of the methylamphetamine were matters of importance. As I have mentioned, the weight of the drugs was 4.983 kg and they had a purity ranging between 53% and 69%. This level of purity indicates that the drugs were close to the source of manufacture. Their value, at a purity ranging between 53% and 69%, was about $2,489,000. Upon the drugs being diluted to street level purity of about 10% - 14%, their weight and value would have increased substantially.

(f) The appellant took steps to avoid detection by the police. He systematically used false names.

(g) The appellant committed count 3 in February 2010. At that stage, he had already committed the serious offence alleged in count 1.

(h) The appellant's plea of guilty was a mitigating factor, but the plea was entered only seven days before his trial was listed to commence. His late acceptance of responsibility for the offence was accompanied by an attempt to minimise his culpability by claiming that he had acted under pressure. This claim was properly rejected by the sentencing judge. Although the late plea of guilty had utilitarian value, it was not indicative of significant remorse. See Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 [22] (Gaudron, Gummow & Callinan JJ); Bahar v The Queen [2011] WASCA 249; (2011) 255 FLR 80 [41] (McLure P, Martin CJ & Mazza J agreeing). Further, the plea of guilty must be assessed in the context of the strong prosecution case, which included highly criminating video surveillance, telephone intercepts and forensic evidence.

(i) The appellant was 25 when he committed the offence and 27 when sentenced. The seriousness of his offending was not mitigated by youthful inexperience.

(j) It is true that the appellant's personal circumstances and antecedents before he committed counts 1 and 3 were favourable. I accept, for the purposes of grounds 2 and 3 of the appeal, the absence of any finding by his Honour that the appellant had any criminal connections other than with those responsible for the offences in question. However, it is well-established by the case law that matters personal to an offender who has dealt or trafficked in dangerous drugs of addiction are almost always subsidiary considerations in the sentencing process.

(k) His Honour was entitled to discount Dr Febbo's opinion that the appellant's risk of reoffending was 'very much at the lower end of the spectrum' (ts 690) in that this opinion was based, in part, on the appellant's assertion that he and his wife had been threatened, an assertion rejected by his Honour.

(l) The prime sentencing considerations were appropriate punishment and personal and general deterrence. Personal deterrence was relevant because the appellant had already committed count 1.

82 I am not persuaded that the individual sentence of 12 years' imprisonment for count 3 was beyond the range open on a sound exercise of the sentencing discretion. The sentence of 12 years, when evaluated in the context of the maximum penalty, the objective seriousness of the appellant's offending, the general standards of sentencing for offences of this kind, the appellant's late plea of guilty and his personal circumstances (including the absence of any finding by his Honour that he had any criminal connections other than with those responsible for the offences in question), was not plainly unreasonable or unjust.

Ground 3: the sentencing judge's sentencing remarks

84 The trial judge said that the appropriate individual sentence for count 1 was 9 years' imprisonment. However, in the application of the totality principle, his Honour reduced that sentence to 2 years' imprisonment. He ordered that the individual sentences for counts 1 and 3 be served cumulatively. Accordingly, the total effective sentence was 14 years' imprisonment.

85 Counsel for the appellant submitted that the total effective sentence was 'crushing'. He relied on the submissions he had made in relation to ground 2.

86 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.

87 Each of the offences committed by the appellant was, no doubt, very serious. I refer to the matters I have mentioned in the course of considering ground 2. My observations in relation to the seriousness of count 3 apply generally to count 1.

88 It was proper for the sentencing judge to order some accumulation of the appropriate sentence for count 1 and the appropriate sentence for count 3. They were separate and distinct offences. Count 1 was completed before count 3 commenced. As I have mentioned, his Honour reduced the appropriate individual sentence for count 1 from 9 years to

2 years' imprisonment in the application of the totality principle. He then ordered that the individual sentences for counts 1 and 3 be served cumulatively.

89 In my opinion, the total effective sentence of 14 years' imprisonment bears a proper relationship to the overall criminality involved in both of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing considerations. The appellant will be aged 37 when he becomes eligible for parole and he will be 39 when he completes the sentences. I accept that this is a heavy burden for him. However, the appellant will still be in early middle age when he is released. He has the support of his wife and family. The total effective sentence does not destroy any reasonable prospect of a useful life after release. It cannot be regarded as 'crushing' in the relevant sense. The existence of error should not be inferred from the sentencing outcome.

91 I would refuse leave to appeal on grounds 1 and 2. The appeal should be dismissed.

Drugs Amendment Act 2004

OZAN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 27 (11 February 2013)

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Judgment (163 paragraphs)

OZAN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 27 (11 February 2013)

Legislation Cited (2)

Cases Cited (9)