Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Leave to appeal principles - Sentence - Parity - Co­operation

Criminal Appeals Act 2004 (WA), s 27

Supreme Court (Court of Appeal) Rules 2005 (WA), r 7, r 32, r 43(2)(b), (c)

Supreme Court Act 1935 (WA), s 61(1)

1 WHEELER JA: This is an application for leave to appeal against sentence. Pursuant to s 27 of the Criminal Appeals Act 2004 (WA), the Court "must not" grant leave to appeal in respect of any ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding. That is, leave is presumptively to be refused, unless an appellant is able to satisfy the court that the ground has a reasonable prospect of succeeding. As to the content of that expression, see Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [34] - [37], [51] - [60].

2 An application for leave to appeal may be dealt with by a single judge, and in the absence of any oral submissions (Supreme Court (Court of Appeal) Rules 2005 (WA) r 7, r 43(2)(b), (c); Supreme Court Act 1935 (WA) s 61(1)). The written document, the appellant's case, is the means by which a single judge will assess whether the grounds contained within it have a reasonable prospect of succeeding. If all of the grounds have merit and the case is prepared in a way which demonstrates that merit, then leave to appeal will be granted on the papers. The appellant's case is also, of course, an important document in assisting the court which ultimately hears the appeal to understand the appeal, and to raise at the hearing of the appeal any issues which may be of concern to it. The great importance of the appellant's case in the appeal process is the reason why the Court of Appeal Rules allow the generous period of five weeks from the filing of the appeal notice for the preparation of that case: r 32.

3 If, on the face of the appellant's case, one or more of the proposed grounds do not appear to have a reasonable prospect of succeeding, then as a matter of practice the application will ordinarily be listed for hearing. It follows that the listing for hearing of an application for leave to appeal indicates that it appears to the judge who has made a preliminary assessment of the matter that one or more of the grounds of appeal, prima facie, do not have a reasonable prospect of succeeding.

4 Any oral hearing of an application for leave is the appellant's opportunity to persuade the court that leave should be granted in respect of a doubtful ground or grounds. Because of the statutory test in s 27 of the Criminal Appeals Act, it is not enough for counsel merely to refer to points which counsel would hope to argue or to develop before a court hearing the appeal; rather, counsel must be in a position to develop any argument sufficiently to indicate that, if the ground were to proceed, it would have a reasonable prospect of succeeding.

5 We make these observations because it is not unusual for an appellant's written case to fail to grapple with the real issues (as does a portion of the case here) or to omit information of significance. Nor is it unusual for counsel to suggest, as this appellant's counsel did, that leave should be granted if he was able to identify an issue of significance (as opposed to an issue in respect of which he was likely to succeed). We are, however, satisfied that in the present case the oral submissions made on behalf of the appellant, together with the appellant's case and with the relevant sentencing materials which have been obtained from the District Court file (being pre-sentence reports, sentencing remarks, psychological assessment, and relevant criminal records), have enabled us to make an adequate assessment of the proposed grounds of appeal.

6 In order to understand the proposed grounds, it is necessary not only to understand the offence out of which the sentence arose, but also the circumstances relating to the appellant's co-offender, known, for reasons which will appear, as "Mr X", and the sentence imposed upon him.

7 The appellant entered a plea of guilty shortly prior to trial to supplying 3,000 ecstasy tablets to Mr X. The appellant met Mr X at a party outside Western Australia in 2001 and became Mr X's drug supplier. They would meet in Byron Bay or Lismore for the supply of drugs. The appellant says that on occasions, Mr X would supply him with drugs as well. The appellant was able to supply Mr X with significant quantities of ecstasy. After that relationship had become established, one Zammitt told Mr X that Zammitt was able to get rid of a "heap" of ecstasy tablets in Perth at a good price. Plans were made for Mr X and the appellant to travel to Perth together with the aim of ensuring that a significant quantity of ecstasy tablets were supplied to Zammitt.

8 In Lismore, the appellant arranged with the person who supplied him, one Mihic, to arrange for a significant quantity of tablets to be taken to Perth. The appellant then confirmed with Mr X that the supply of tablets in Perth could take place on 13 September 2002, and Mr X then made contact with Zammitt and set up the deal for that day. The appellant did not know the identity of Mr X's customer, and, while there was some dispute about whether Mr X ever made contact directly with Mihic, it is clear that it was through the appellant's assistance that Mihic was brought into this arrangement. Mihic was the person who actually brought the tablets to Perth.

9 Police surveillance of both Mr X and the appellant took place on 13 September. At the Sheraton Hotel in Perth, the appellant went to Mihic's room while Mr X drove to Zammitt's house in Kensington, in order to collect $66,000 to pay for the 3,000 tablets. Mr X took that money back to his room at the Sheraton and removed $12,000, being an amount which he and the appellant were to share. There was a dispute as to whether the appellant was to receive $1 a tablet and Mr X $3 a tablet or vice versa, but the learned sentencing judge accepted, in my respectful view correctly, that this was not an issue of any significance. The appellant took the box, now containing $54,000, and left the room. He returned some time later and gave Mr X a box containing the ecstasy tablets which Mr X took into his hire car and drove towards Zammitt's house. He was stopped by police, the vehicle was searched, and the tablets were located. Police also searched Mr X's room at the Sheraton and found $12,000 in $100 notes.

10 Police executed search warrants on rooms occupied by the appellant and Mihic, but found no drugs or money in the appellant's room. Seven thousand ecstasy tablets were found in Mihic's room, together with $54,000 in cash, being the remains of the $66,000 collected by Mr X.

11 The appellant was interviewed briefly on video by police and gave the name of Carl Shaw. It was accepted by the learned sentencing judge that Carl Shaw was a name which the appellant used from time to time for other purposes, rather than one he had made up on the spur of the moment. The appellant told police he had met Mihic for the first time on that day. There was insufficient evidence of the appellant's involvement in the offence and so he was released.

12 Mr X was charged on the night of 13 September 2002 with possession of 3,000 ecstasy tablets with intent to sell or supply, and Mihic was charged with possession of 7,000 ecstasy tablets with intent to sell or supply. Mr X subsequently pleaded guilty to that charge on 16 June 2004. He provided investigating police with a statement on the following day. It was following the provision of that statement that the DPP in September 2004 approved a request to extradite the appellant, who was then living interstate. He was first charged with supplying 3,000 ecstasy tablets. In August 2005, the State filed a joint indictment against Mihic, Zammitt and the appellant. By that indictment, the appellant was jointly charged with Mihic with both possession of the 7,000 ecstasy tablets with intent to sell or supply, and the supplying of the 3,000 ecstasy tablets. On the day on which his joint trial with Zammitt was to commence, the appellant pleaded guilty to the count relating to the 3,000 tablets, which was accepted in full satisfaction of the indictment.

13 At Mr X's sentencing in August 2004, he received a term of imprisonment of 3 years, following the application of the transitional provisions, for possession of 3,000 ecstasy tablets with intent to sell or supply. The facts outlined against him were broadly those which I have described. The judge sentencing him described him as not merely 'some bit player or mere courier', but a person active over a significant period of time in arranging the transaction. The following matters were relevant to the sentence imposed upon him:

• He asserted, and it was accepted, that this was the only commercial transaction in which he had been involved and that it was entered into in order to get him out of significant financial difficulty.
• He was 32 years of age, had married after the offence was committed, and he and his wife were anxious to start a family when circumstances permitted.
• He had a supportive family.
• He had no significant prior record involving drugs. He had mainly traffic offences and a minor cannabis offence in 1997.
• He had been in stable employment since the occurrence of the offence and was well thought of by his employer.
• The learned sentencing judge described Mr X's conduct since the offence as "impressive" and as suggestive of "very good prospects" of rehabilitation and reasonably low prospects of reoffending.
• Mr X had pleaded guilty, although belatedly, the lateness of the plea being attributable in part to the fact that he was in Queensland and his counsel was in Western Australia, resulting in difficulties in communication. It was accepted that the plea was a recognition of wrongdoing, and an indication of remorse and willingness to accept the consequences of the offence.
• Most significantly, there was a letter provided to the learned sentencing judge outlining the co-operation, both past and prospective, offered by Mr X. That co-operation involved full and frank disclosure of Mr X's involvement, but placed Mr X and his family at significant risk.

14 The sentence imposed on Mr X was arrived at by commencing with a starting point of 9 years' imprisonment as being appropriate to the circumstances of the offending. His Honour then discounted that by 50% to allow for all mitigating factors including the plea of guilty, rehabilitation and prospects of rehabilitation, and past and future co-operation. The one-third deduction required by the transitional provisions brought that sentence of 4 1/2 years to 3 years.

15 Zammitt was acquitted after trial and Mihic absconded, so that no issue of parity arises in relation to them.

16 At the appellant's sentencing, the following matters arose:

• He was 32 years of age. He had come from a dysfunctional family and had, at the time of commission of the offence, been seeking to make money in order to support his drug use and drug addiction.
• Since the offence he had given up illicit drugs, gained considerable insight into the factors that had led to his addiction and gained insight into the serious consequences of illicit drug use.
• He had a minor record, involving offences of dishonesty in 1993 and 1994, breaches of bail undertakings and a community service order in 1995 and 1996, an offence relating to a weapon in 1996, and some traffic offending.
• At the time of sentencing he had a business, in which he worked very hard, designing sunglasses.
• He had, since the offence, entered into a relationship which, by the time of sentencing, had lasted some 4 1/2 years.
• He had a daughter who was 13 years of age in whose welfare he was taking an active interest.
• He had entered a plea of guilty. While he had not done so at the earliest opportunity, he had done so immediately following the State's indication that it would abandon the count relating to the 7,000 ecstasy tablets. However, he had not offered to plead guilty to either count prior to that point.

17 The learned sentencing judge noted that the appellant had, in the reports available to him, tended to minimise his involvement and his role in this transaction. His Honour of course considered that it was not a "small-time" operation. He took the view that there was little difference between the appellant and Mr X, as both were facilitators of the transaction, one introducing the seller and the other the purchaser. His Honour noted the various personal factors I have referred to above. He considered that in the period between the offence and the appellant's sentencing, some of that period appeared to have been put to good use in the appellant's progress towards rehabilitation.

18 His Honour noted that delay was relevant for the purpose of the sentencing where either the offender's liberty was curtailed or left in a state of uncertainty caused by a failure by the authorities to prosecute the case more quickly, or where the time between the commission of the offence and the sentence was sufficient to enable the court to see that the offender had become rehabilitated, or that the rehabilitation process had made good progress. That was a correct statement of principle relevant to the present case: see Scook v The Queen [2008] WASCA 114, particularly McLure JA at [31], [37] and [38] and Buss JA at [58] - [64]. His Honour accepted that in the present case the appellant had made good progress towards rehabilitation.

19 His Honour noted the relevant sentencing principles and referred in particular to relevant and well-known authority in this State, the effect of which is that personal circumstances, contrition, the taking of steps towards rehabilitation and good antecedents, while relevant, are not generally weighty factors having regard to the need for general deterrence in relation to the sale and supply of significant quantities of drugs.

20 With those factors in mind, his Honour indicated that an appropriate starting point, having regard to the objective criminality of the offending, was in the case of the appellant, as in the case of Mr X, 9 years' imprisonment. However, he allowed a discount from that which he quantified at 1 year for the appellant's rehabilitation. He allowed a further discount for the plea of guilty which was modest, but which was accepted by the appellant as being within an appropriate range. In total, he deducted 2 years and 3 months from the 9-year starting point. The further deduction of one-third required by the transitional provisions led to a sentence of 4 1/2 years' imprisonment.

21 It is against that sentence that the appellant seeks to appeal. The grounds of proposed appeal, omitting particulars, are:

1. The learned sentencing judge erred in failing to adequately reduce the Appellant's sentence to allow for the rehabilitation undergone by the Appellant since the time of the offence.
2. The sentence imposed on the Appellant was excessive having regard to the sentence imposed on the co-accused [Mr X].

22 So far as ground 1 is concerned, it is plain that his Honour did consider that the appellant had undergone significant rehabilitation since the time of the offence. His Honour referred to it more than once as a circumstance which he took into account. A failure to give sufficient weight to a relevant sentencing consideration, however, only gives rise to an express appealable error if it amounts to a failure to exercise the discretion actually entrusted to the court: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 330 (Gaudron and Gummow JJ, citing Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 at 614). That is plainly not the present case. Error may be inferred if, notwithstanding that relevant sentencing considerations were taken into account, the sentence ultimately imposed was so manifestly excessive as to indicate error. However, it is not suggested in the present case, and nor could it be, that a (pre-transitional) sentence of 6 years and 9 months' imprisonment was, in the circumstances of this case, manifestly excessive.

23 The appellant's counsel suggested that in a case where the sentencing judge had not only indicated that he was taking a factor into account, but had also indicated with precision the amount by which the sentence was reduced in order to take account of that factor, there might be express error if it was plain that the amount of the reduction did not sufficiently recognise the mitigating factor referred to. No authority was cited for the proposition, and it appears to be inconsistent with the line of authority referred to in Dinsdale. However, even accepting that the appeal could be argued in that way, a reduction of 12 months, in circumstances where authority indicates that personal factors are not to be given significant weight, must be regarded as a substantial one. The appellant's counsel was unable to indicate how he would have a prospect of succeeding in persuading the Court of Appeal that a reduction of that order was so inadequate as to manifest error.

24 It follows that ground 1 has no reasonable prospect of succeeding.

25 So far as ground 2 is concerned, the outline of the circumstances of the offence and the outline of the personal factors relevant to each offender demonstrates that there was little to choose between Mr X and the appellant so far as objective criminality was concerned. There was also little to choose between them in their personal circumstances, with one very important exception. Both were the same age, both had entered into relationships since the offending, both were in gainful employment at the time of sentence, both had minor criminal records, and one was regarded as having very good prospects of rehabilitation, while the other (the appellant) could be regarded as having made very significant progress in his rehabilitation, or perhaps as being completely rehabilitated notwithstanding a dysfunctional past. All other things being equal, one would expect the sentences imposed on each of those offenders to be the same, or very nearly so.

26 However, the very important difference between the appellant and Mr X lay in Mr X's significant co-operation with the authorities. For reasons which have been explained on numerous occasions, discounts of 50% or more may well be appropriate where there is significant co-operation: The State of Western Australia v Tran [2008] WASCA 183 at [12] (Steytler P), [75] - [82] (Miller JA). It was accepted at Mr X's sentencing, both by the State and by the learned sentencing judge, that Mr X's co-operation was very significant and that it involved personal risk to Mr X and to his family. In those circumstances, a very significant difference in sentence between the appellant and Mr X was entirely appropriate. The discount afforded to Mr X was within an appropriate range. The appellant can have no justifiable sense of grievance as a result.

27 Ground 2 therefore has no reasonable prospect of success. It follows that, since leave is not granted in relation to either ground, the appeal must be dismissed.

28 McLURE JA: I agree with the reasons of Wheeler JA.