One sentence of 5 years imprisonment reduced to 4 years imprisonment

Miles v R, unreported; CCA SCt of WA; Library No 970258; 7 May 1997

Parsons v The Queen (1993) 66 A Crim R 550

Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995

Tanadi v The Queen [1999] WASCA 188

Trescuri v The Queen [1999] WASCA 172

1 WALLWORK J: On 8 March 2000 the applicant was sentenced to terms of imprisonment for three offences of having had heroin in his possession, with intent to sell or supply it to another. The first two offences occurred on 21 and 22 June 1999 respectively, but in essence the facts of those two offences were that after the applicant had been found in a car with some heroin, his house had been raided and more heroin was found at the house. So the second offence on 22 June followed on from his apprehension on 21 June. For those two offences the applicant was sentenced to two terms of 3 years imprisonment to be served concurrently.

2 Whilst he was on bail waiting to be dealt with for the June 1999 offences, the applicant was again apprehended in his motor vehicle on 21 September 1999 at Osborne Park with heroin in his possession, with intent to sell or supply it. Concerning that third offence the learned sentencing Judge said:

"With respect to the one count on indictment 1973 of 1999, that offence having been committed in open defiance of the law whilst on bail for the first two offences, ought, in my view, to attract a sentence in the gross of 6 years imprisonment. This is reduced to a period of 5 years imprisonment in recognition of his plea of guilty at an early opportunity. Those terms on the two indictments ought and must be served cumulatively, therefore making a total of 8 years imprisonment on the indictable matters".

3 The applicant complains of the approach of the learned Judge on a number of grounds. Primarily it is contended that whilst the applicant received two terms of 3 years imprisonment on the first two counts, which had involved being apprehended in his car with 9.04 grams of heroin and then a further 28.82 grams being found at his home, after being apprehended in September whilst on bail with 7.938 grams of heroin in his car, he received an increased sentence of 5 years imprisonment. This was said to be despite the fact that the amount of heroin on the third occasion was only 7.938 grams. It was pointed out that the first offence had involved nearly the same amount, being 9.04 grams.

4 It can be seen from his Honour's sentencing remarks quoted above, that one of the reasons the sentence was increased for the third offence was that it had been "committed in open defiance on the law whilst on bail for the first two offences ...."

5 At the hearing of this application, in effect, ground 1 was:

"(c) Whilst the offence was committed on bail, this only detracted from the mitigation which could have been afforded to the offender.

(d) The fact that the appellant committed the offence whilst on bail ought not to have operated so as to increase the proper starting point or tariff for the offence.

(e) The learned sentencing Judge erred in treating the fact of the commission of the offence whilst on bail as a factor which would in effect double the seriousness of the offence.

(f) The aggravating aspect of the offence being committed whilst on bail was adequately and properly dealt with by the learned sentencing Judge in making the sentence fully cumulative on the previous sentence."

6 It was argued for the applicant that it was wrong in principle to increase a sentence because the offence had been committed whilst the applicant was on bail. Reliance was placed on decisions from Victoria and New South Wales. However in my view, the decisions in those jurisdictions do not support the applicant's contention that a sentence cannot be increased because the relevant offence has been committed whilst the applicant was on bail.

7 One of the decisions referred to by counsel for the applicant was Basso and Frazzetto [1999] VSCA 201; (1999) 108 A Crim R 392. That was a decision of the Court of Appeal in Victoria. In that decision Charles JA and Batt JA agreed substantially with the reasons given by Chernov JA who in the course of his reasons said at 395:

"The grounds of appeal argued ... on behalf of Basso were that his Honour erred in treating as an aggravating factor the fact that Basso committed the admitted offence whilst on bail."

"In that case [Pham and Ly (1991) 55 A Crim R 128] Lee CJ at CL (with whom Gleeson CJ and Hunt J agreed) noted (at 134) that Pham was on bail at the time of the commission of the relevant offences and that it should not be overlooked that 'it is well established in this State that crimes committed whilst on bail require severely deterrent sentences: see Richards (1981) 2 NSWLR 464'. A similar view was expressed in Richards' case. It seems that in that jurisdiction, the fact that the offence was committed whilst the applicant was on bail is an aggravating factor that can lead to a higher sentence. The approach by this Court, albeit often unstated in terms, has been to regard the commission of an offence whilst the offender is on bail as an aggravating factor".

"That the aggravating circumstance may, in appropriate cases, point to greater severity of sentence was made clear by Brooking JA in England [1999] VSCA 95; (1999) 106 A Crim R 99 at 104 [17], with whose reasons Batt JA and I agreed. To a great extent, whether the commission of the offence whilst the offender is on bail amounts to an aggravating factor is to be resolved by the application of commonsense, as Brooking JA stated in England".

"By committing the offence whilst on bail, the offender demonstrates, inter alia, that he or she has little regard for the law and is prepared to offend notwithstanding that he or she has been granted liberty upon a condition of being of good behaviour pending trial. In my view, as a matter of commonsense, the commission of an offence in breach of such a condition constitutes an aggravating factor, which can be taken into account by the sentencing Judge in determining the appropriate sentence. As their Honours said in Gray, whether such consideration results in an increase in the sentence above what it would otherwise have been must depend on the circumstances of the case ... Thus, in my view, the commission by Basso of the May 1997 offence whilst he was on bail constituted an aggravating factor which was relevant both to his personal circumstances and to the offence and his Honour properly took it into account for sentencing purposes. There is nothing to indicate, however, that this led him to impose a sentence which was beyond range".

11 In R v Richards (1981) 2 NSWLR 464, which decision counsel for the applicant also relied on, Street CJ said at 465:

"The community must be protected as far as possible from further criminal activities by persons who take advantage of their liberty on bail to commit further crimes. The only means open to the criminal courts to seek to provide this protection is to pass severely deterrent sentences upon those who thus abuse their freedom on bail. This will ordinarily involve a significant accumulation of the sentence for any subsequent offences on top of the sentence properly to be passed for the original offence. It must be made abundantly plain that persons at large on bail cannot expect to commit further crimes 'for free'. On the contrary, they will receive salutory penalties for the very reason that they have abused their freedom on bail by taking the opportunity to commit further crimes".

12 Those above reasons are consistent with the reasons of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2) [1988] HCA 14; (1997-1998) 164 CLR 465 at 477 where their Honours said:

"The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. ... Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties".

13 It is noted that s 7(2) of the Sentencing Act 1996 (WA) provides:

(c) a previous sentence has not achieved the purpose for which it was imposed".

14 In my view that subsection does not detract from the comments which have been referred to above, because it is not the fact that the offender has a criminal record which aggravates offences such as the one presently being considered. It is the fact, as the learned sentencing Judge in this case said, that the offence was committed "in open defiance of the law whilst on bail for the first two offences" which aggravates the offence.

15 In my view ground 1 of the application was not made out.

16 It was also argued for the applicant that in any event the 5 year sentence was too severe in all the circumstances.

17 The applicant conceded that his Honour's conclusion that the applicant was an extremely active street dealer in heroin was open on the facts. His Honour had said:

"... it is impossible to avoid the conclusion as far as this offender is concerned that he was an extremely active street dealer in heroin. Notwithstanding whatever reasons might be advanced for his determination to so deal, it is not suggested that he is a person addicted. He was purely and simply, clearly and obviously, in the business of selling heroin to citizens of this State as is verified, in my view, by the fact that one offence was committed whilst he was on bail for the other offence. Furthermore the property found in his possession is stark evidence, if further be required, of the determination of his dealing."

18 With respect to the last part of those remarks, counsel for the applicant said: "Again there is no disputing that."

19 It was further conceded for the applicant that the learned Judge's conclusion that the first two offences ought properly have attracted a term of 4 years imprisonment was in line with the relevant authorities. However, the question was asked:

"That being the case, the question is, if 38 grams attracts 4 years, what does 8 attract?"

20 The eight was a reference to the 7.938 grams of between 60 and 75 per cent purity with an approximate street value of $7200 which had been found in the applicant's possession on 21 September 1999 when he was apprehended travelling north in his motor vehicle in Osborne Park. Counsel submitted that the proper range for that offence was something up to 4 years imprisonment and that the learned Judge could not increase the sentence to something beyond that range.

21 It was submitted that if 4 years was the correct starting point for approximately the relevant amount of heroin, it had been wrong to increase the sentence to 5 years for the September 1999 offence, particularly having regard to the fact that the applicant had pleaded guilty on the fast-track system and that the sentence was being added on to the first two 3 year concurrent sentences.

22 It was conceded that a sentence could have been imposed which was the same as that for the first two offences and that it could have been made fully cumulative. But it was argued that the sentence could not increased by about 50 per cent because the offence had been committed whilst the applicant was on bail.

23 It was further submitted that this had not been an extreme case. It was one offence committed whilst the applicant was on bail. It had not been a persistent form of abusing bail. It was said that the sentence for the September offence had been made fully cumulative and was in effect 50 per cent higher than the two 3 year sentences for the earlier total of 40 grams of the same drug. It was submitted that the starting term of 6 years imprisonment for the September offence had been a sentence which would have been expected for a much higher quantity of the drug. Secondly, the discount of 1 year which had been given to reduce it to a term of 5 years imprisonment had not been consistent with the deduction in the two earlier cases of 25 per cent because of the applicant's circumstances and his early pleas of guilty. It was submitted that there had been no valid reason as to why the applicant had only been given an approximate 16 per cent deduction for the September offence for the factors in favour of mitigation when he had received a 25 per cent discount on the first two offences.

24 It was further submitted that the learned sentencing Judge could have properly taken as a starting point, two cumulative terms of 4 years imprisonment and then reduced each of the 4 year terms by 1 year, to result in a total sentence of 6 years imprisonment rather than the 8 years imprisonment which he had arrived at.

25 In sentencing the applicant the learned Judge said:

"What he must receive credit for, however, is his plea of guilty at an early opportunity. I propose to structure the sentences in this fashion: on each of the two counts on indictment 1862 of 1999 he ought in the gross be sentenced to a term of 4 years imprisonment overall. That is, 4 years on each count to be served concurrently. His plea of guilty causes that to be reduced to a term of 3 years. With respect to the one count on indictment 1973 of 99 that offence, having been committed in open defiance of the law whilst on bail for the first two offences, ought in my view to attract a sentence in the gross of 6 years imprisonment. This is reduced to a period of 5 years imprisonment in recognition of his plea of guilty at an early opportunity. Those terms on the two indictments ought and must be served cumulatively, therefore making a total of 8 years imprisonment on the indictable matters."

26 If his Honour had applied the same percentage for the matters in mitigation on all the sentences, (leaving aside that the commission of the September 1999 offence was whilst on bail), the 6 year term would have been reduced by a quarter, or 18 months, thereby reducing it to 4-1/2 years imprisonment. That would have resulted in an effective total of 7-1/2 years imprisonment. However, in my view such a reduction would not sufficiently take into account the effect of the making of the sentences cumulative, which effect was referred to by Ipp J in Jarvis v The Queen (1993) 20 WAR 201 at 207 where his Honour said:

"What then is the explanation for the phenomenon that it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity of the particular crimes for which they were imposed? In my opinion the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length."

27 In my view there was error in this case because an appropriate sentence for the September 1999 offence would have been one of 4 years imprisonment, to be made cumulative upon the first two 3 year concurrent sentences, making a total aggregate term of 7 years imprisonment, instead of the 8 years imprisonment which was ordered.

28 The effect of such a reduction would be that the term of 5 years imprisonment for the September 1999 offence would be reduced to one of 4 years imprisonment to be served cumulatively on the earlier 3 year sentences. The other sentences of 6 months each to be served concurrently, but cumulatively on the earlier sentences which were imposed by his Honour for a number of offences on a s 32 notice, would remain to be served cumulatively upon the 7 year term.

29 The effect of the reduction in the sentence for the September 1999 offence would be that the total effective sentence, instead of being one of 8-1/2 years imprisonment to commence on 22 September 1999 with eligibility for parole on all counts, would be that the aggregate total sentence would be reduced to 7-1/2 years imprisonment to commence on 22 September 1999 with eligibility for parole on all counts.

30 I would grant leave to appeal and reduce the sentence for the offence on 21 September 1999 from 5 years imprisonment to 4 years imprisonment with the applicant to be eligible for parole with respect to that sentence. The other sentences would remain the same.

31 PARKER J: I have had the advantage of reading the reasons of Wallwork and McKechnie JJ in this application for leave. The circumstances of the offence the subject of this application for leave and of the other offences dealt with at the same time and of the applicant have been set out in those reasons and I need not repeat them in detail.

32 As their Honours have noted, there is a significant question which this application seeks to ventilate. That is whether it is ever open to a sentencing judge to treat the circumstance that an offence was committed while the offender was released on bail pending trial on a similar earlier offence, as an aggravating circumstance which could justify a greater sentence than would have been imposed had the offender not been on bail at the time of its commission. This is a question which does not appear to have been directly raised before this Court before now, although it has received consideration elsewhere and there has not been active controversy about the question in this jurisdiction.

33 In my view, it is unnecessary to go back further in the decided cases than Veen v The Queen (No 2) [1988] HCA 14; (1987) 164 CLR 465 where, at 477, Mason CJ, Brennan, Dawson and Toohey JJ expressed the following view -

"The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."

34 Their Honours' words were directed specifically to the antecedent criminal history of an offender, but the analogy with the circumstances of the present case is clear and strong. Where an offender is released on bail, having been charged with one or more offences for which the offender is later convicted, and while on bail commits another similar offence, there is demonstrated in the circumstances of the later offence a continuing attitude of disobedience to the law which, when the offender comes to be sentenced for the later offence, may well warrant a more severe penalty than, for example, had the offence been an uncharacteristic aberration. It is not necessary that the offender should have been convicted and sentenced for the earlier offences before committing the later offence. To continue with similar offences while on bail for earlier offences for which the offender is later convicted, may provide stark evidence of a continuing attitude of disobedience of the law by the offender when the later offence is committed.

35 This accords with the view which seems to have prevailed, at least in more recent years, in Victoria and in New South Wales where the issue has received specific consideration; Basso and Frazzetto [1999] VSCA 201; (1999) 108 A Crim R 392, Readman (1990) 47 A Crim R 181, Laurentiu and Becheru (1992) 63 A Crim R 402.

36 I respectfully agree with Wallwork and McKechnie JJ that where an offence has been committed while the offender was on bail for similar offences of which the offender is later convicted, that may properly be regarded by the sentencing judge as an aggravating factor in determining the appropriate sentence for the later offence. The circumstances of the particular case will determine whether that should occur and, if so, the extent to which the sentence imposed is higher than otherwise would have been the case, or whether this consideration should be allowed to weigh in some other way as McKechnie J has mentioned.

37 In the present case it was open to the sentencing judge to be satisfied, as he was, that the later offence, was committed in "open defiance of the law whilst on bail for the first two offences" and to treat this as an aggravating circumstance warranting, in the circumstances, a higher penalty. I would regard his Honour's view that a starting point of a sentence of 6 years' imprisonment, rather than 4 years which he considered appropriate for the earlier offences, not to be outside an appropriate range in this case.

38 It is advanced for the applicant that there must be error in his Honour's approach because the later offence of possession with intent involved only some 7.938 grams of heroin of between 60 and 75 per cent purity, whereas the two sentences for the earlier offences of the same type involved 9.04 grams and 28.82 grams respectively of somewhat similar purity heroin. In respect of the earlier offences his Honour's starting point was only 4 years' imprisonment and the sentences were ordered to be served concurrently. It is submitted that in effect a starting point of only 4 years was considered appropriate for 37.92 grams of heroin and, if that be appropriate, a starting point of 6 years for only 7.938 grams must involve error. In my view, such a submission involves what is neither a complete nor a satisfactory analysis of what is involved.

39 Obviously, the amount and purity of the heroin is a factor to be considered in each case. It may or may not be material in determining the appropriate sentence. It clearly will weigh significantly where a very large quantity is involved. The circumstances of these present offences, however, are such that there are considerations of greater significance to the determination of penalty than the amount of heroin in each case. The central and most significant factor is that the applicant was, in each case, in possession of heroin for the purpose of street trading. In each offence the circumstances reveal that there was not one isolated and uncharacteristic act of trading. The applicant had 17 deals in his vehicle in the first offence on 21 June 1999. He then led the police to a buried cache of 28.82 grams in the yard where he was living. In the later offence on 21 September 1999 the applicant had 15 deals in various parts of his clothing. The applicant was clearly actively engaged in the business of street trading, both in June and in September. The precise quantity found on each occasion may be seen to involve quite an element of chance, depending in part on when in the course of his dealing activities he was apprehended by the police. This is not a case in which personal addiction by the applicant is available as some explanation. His sole motivation was financial. The applicant was not deflected from trading for financial gain by virtue of his apprehension in June 1999. He continued. In so doing his disregard for the law and for the harm which flows to others from his conduct was made manifest. Hence, in my view, there is no validity to the criticism that the starting point for the later offence in September 1999, which is the subject of this application for leave, was too high because it was out of keeping with the starting point identified by his Honour for the earlier offences.

40 The June offences were obviously entirely distinct in their commission from the September offence. Contrary to the applicant's submission, and subject to the issue of totality, in my view this provides adequate justification for the decision of the sentencing Judge that the term for the September offence should be served cumulatively on the concurrent terms for the two June offences. In my view, subject to the issue of totality it was open to his Honour to take the view that, quite apart from the September offence being served cumulatively, it was appropriate, when assessing its seriousness and criminality independently of the other offences, to have regard to the circumstance that it was committed while on bail and to recognise that circumstance by imposing a longer term, as he did.

41 It is further submitted that there was error in the reduction of one year which his Honour allowed for each offence because the applicant pleaded guilty. The principle is well established that in the exercise of sentencing discretion a reduction is normally allowed where there has been a plea of guilty entered. While for reasons of policy underlying the principle it is usual for some reduction in sentence to be given where there has been a plea of guilty, in rare cases there may be countervailing considerations of such significance that no reduction is appropriate. More significantly, there is no fixed amount or mathematical formula which determines the reduction. The amount of the reduction is necessarily a product of a synthesis of a number of considerations and will vary, sometimes significantly, between cases. Inevitably, the determination of the reduction in each case is very much a matter of discretion.

42 There was a tendency, evident in the course of submission, to evaluate the reduction in terms of a percentage discount. While such an approach may have some value as a convenient aid to comparison it does not provide a correct guide to the sentencing process which is involved.

43 As indicated, the circumstances of each case are likely to be different from any other and the nature of the variation is so diverse as to make any rigid formula as to the amount of an appropriate reduction impractical. Of particular relevance to the exercise of the discretion is the issue whether the plea is attributable to genuine contrition and remorse. If so, the plea of guilty is likely to be of greater significance to the exercise of the discretion. Even more so where that remorse is accompanied by a frank confession to the authorities, especially if the plea is immediate or made very early on the proceedings against the offender. Where, however, the plea of guilty is no more than an acceptance of the inevitability of conviction in the face of a strong prosecution case, the fact of a plea of guilty will have much less weight. Whether or not there is genuine contrition and remorse, there is also a public interest in the encouragement of pleas of guilty because of the consequential saving of court and investigative time and costs. Once again, the significance to be attached to this consideration will vary between cases. Of particular relevance is whether the plea was entered early or late in the course of proceedings. It is especially significant in this context if the plea was entered at the first available opportunity.

44 In this case the applicant initially pleaded not guilty to the June 1999 offences. That is how he came to be released on bail. It was only after committal for trial and when arraigned on indictment on 28 February 2000, that the pleas of guilty were entered for these offences. The case against the applicant on each count was clear and strong. With respect to the later offence in September 1999, however, there was a plea of guilty entered in the Court of Petty Sessions on the first remand date. There was a fast-track committal for sentence to the District Court. Once again, however, the case against him was clear and strong.

45 The learned sentencing judge accepted that the pleas of guilty should have been recognised by a reduction in sentence. For this reason he reduced by a year, from 4 years to 3 years, each of the two sentences for the June 1999 offences, and he reduced also by a year, from 6 years to 5 years, the sentence for the later offence in September 1999. It is submitted that this involved error, which was identified in percentage terms in the submissions as being a discount with respect to the sentence for the later offence of approximately 17 per cent whereas it was 25 per cent for the two earlier offences.

46 The submission in this respect suffers from the difficulty that it seeks to apply a mathematical formula to the discretionary process. In particular it ignores, in my view, the clear relevance of the normal and convenient practice of rounding sentences by virtue of which the vast majority of sentences of imprisonment imposed for convictions on indictment are rounded to years or half-years, almost inevitably to the advantage of the offender.

47 In the particular circumstances of this case I would regard a discount of one year for the two earlier offences as high, as the pleas were not entered until arraignment and the prosecution cases were strong. A discount in the order of 9 months would, in my respectful view, have been a more appropriate recognition of the pleas of guilty in these circumstances. It seems likely that in fixing a discount of one year for those offences the sentencing judge made a rounded assessment of an appropriate reduction which favoured the applicant.

48 With respect to the later offence in September 1999 the circumstances of the plea of guilty commended a more generous reduction than for the earlier offences, although it must be recognised that the applicant once again effectively was caught red-handed and the prosecution case was strong. Even so, in my respectful view, the discount of one year tended on the light side and a discount of 15 - 18 months could well have been justified, especially because the plea was entered at virtually the earliest opportunity. The appropriate recognition to be afforded the pleas of guilty in these cases involves, however, the weighing and balancing of these and other factors in the exercise of what is clearly a matter of discretion. It is not immediately apparent to me that, in adopting a rounded approach of a reduction of one year for each sentence, the sentencing Judge necessarily fell into error of principle. I note also that in the overall result, the approach which I have suggested would have produced a similar result.

49 It does concern me, however, that the effect of what I perceive to be the rounding of the discounts has produced the result in this particular case that the plea of guilty most deserving of recognition appears to have received no greater recognition than the other two pleas. It is not clear to me, however, for the reasons indicated, that this must involve an error of principle.

50 There is, however, need also to assess the total effective sentence of 8 years in light of the overall seriousness of the criminal conduct involved with a view to determining whether in totality 8 years imprisonment is out of keeping and too harsh even though the individual sentences considered separately are justified and a cumulative term for the September offence is justified.

51 Necessarily this is a process in which assessments may vary to a degree but, in the end, I have been persuaded that a total term of 8 years is too high and outside an appropriate range. For this reason, in my respectful view, it would have been appropriate to reduce the sentence for the September offence by a further year to 4 years solely to achieve an effective total term of 7 years imprisonment out of regard for the totality principle.

52 It is to be noted that the circumstances of this case bear a number of similarities to the circumstances considered in Smith v The Queen [2000] WASCA 243 where a street trader in heroin was sentenced for two offences of possession with intent and three offences of supplying heroin to terms totalling 6 years imprisonment. Smith had pleaded guilty to these offences but only when arraigned on indictment, and he had committed the second offence of possession with intent and the three offences of supplying, all of which were treated as one episode, while on bail for the first possession with intent offence. Smith, though, had himself become addicted to heroin and the sentencing Judge had accepted a good deal of well supported evidence which indicated that Smith had taken serious and effective steps to deal with his addiction after his arrest on the subsequent offences. This had been reflected in the decision of the sentencing Judge to order that all the terms be served concurrently with a sentence of 6 years imprisonment imposed for the second offence of possession with intent, so that the effective total term was 6 years imprisonment. On appeal this Court restructured the sentences but not so as to vary the effective total term of 6 years imprisonment which had been determined by the sentencing Judge. There was only an appeal against severity of sentence so the total effective term of 6 years was not, of course, increased.

53 As a consequence of those considerations especially the effective upper limit of 6 years imprisonment and the desirability in the view of the majority of marking quite distinct elements of Smith's criminal conduct with distinct sentences to be served at least partly cumulatively, the sentence of 6 years imprisonment for the second possession offence was reduced from 6 years to 4 years. This also reflected the plea of guilty, the influence of addiction in the commission of the offence and the determined effort of Smith to overcome his addiction. Hence, had it not been necessary to accommodate other sentences and sentencing considerations within an effective total of 6 years imprisonment, the sentence for Smith's second possession offence may have been different. It is to be noted that in Smith's case a rounded reduction of 1 year was allowed for each plea of guilty and other mitigating circumstances, even though the head terms varied.

54 In addition to the sentences considered in these reasons the applicant was also sentenced at the same time to further terms totalling in effect 6 months imprisonment for a count of unlawful possession and 12 counts of stealing. These sentences were unrelated to the sentences considered in these reasons. The effective term of 6 months imprisonment was ordered to be served cumulatively on the sentences dealt with in these reasons. No issue is raised by this application for leave in respect of these sentences.

55 For these reasons, I have been persuaded that it would be appropriate to grant leave to appeal, to allow the appeal in respect of the sentence for the offence on 21 September 1999 and to reduce that sentence from 5 years imprisonment to 4 years imprisonment. It is not contended by either party that there should be any disturbance of the order that the applicant be eligible for parole in respect of the sentences and that order should not be disturbed.

56 This appeal raises the question whether the fact that an offence is committed while on bail for a similar offence is an aggravating circumstance which can justify an increase in the sentence which would otherwise be imposed for the offence.

57 On 28 February 2000, the applicant was arraigned before the Chief Judge of the District Court on two indictments. The first contained two counts as follows:

"(1) On 21 June 1999 at Dianella, VASILE POP had in his possession a prohibited drug, namely heroin with intent to sell or supply it to another.

(2) AND FURTHER that on 22 June 1999 at Dianella, VASILE POP had in his possession a prohibited drug, namely heroin with intent to sell or supply it to another."

"On 21 September 1999 at Osborne Park VASILE POP had in his possession a quantity of heroin with intent to sell or supply it to another."

59 In respect of the first indictment, it would appear that the applicant had elected no preliminary hearing and was committed to the District Court for trial.

60 In respect of the second indictment, it would appear that he pleaded guilty on the fast-track system and was committed for sentence.

61 He pleaded guilty to the counts on each indictment and also pleaded guilty to a number of matters contained in a notice under the Sentencing Act 1995 (WA) s 32, they being one count of unlawful possession and 12 counts of receiving.

62 The facts (which were admitted in all material aspects) were stated by the Crown Prosecutor as follows:

"... during the evening of Monday, 21 June 1999 the offender was stopped by police while driving his vehicle, Ford Telstar registration number 1AEN-244, in Homer Road, Dianella. A search of the vehicle was conducted with two Winfield Blue cigarette packets being located. A further examination of the packets revealed 17 small packages of heroin powder, the weight being 9.04 grams and the purity being between 70 and 80 per cent.

The offender then directed police to premises situated at 4/160-162 Flinders Avenue, Yokine. A search was conducted under the provisions of the Misuse of Drugs Act. The offender directed detectives to an area in the rear yard and here they located a quantity of heroin powder, weighing 28.82 grams and being between 60 and 80 per cent in purity, inside a glass jar which had been placed under a fern. ..."

63 I interpose to note that the applicant appeared in the Court of Petty Sessions on 25 June 1999 where he was granted bail of $20,000 with a similar surety. Therefore, the offence on 21 September 1999 occurred while he was on bail for the previous matters.

"... at about 8.45 pm on Tuesday, 21 September, 1999 police observed the offender's vehicle, a 1999 Holden Astra sedan, registration number 1AKC-895, travelling north on Main Street, Osborne Park. He was stopped at the rear of the Perth City Motel in relation to another matter and as a result the offender and his vehicle were searched.

Located by police in his left tracksuit jacket pocket were five small plastic bag corners containing white powder. The offender was asked if he had any more of the powder on his person and he produced a further 10 small plastic bag corners containing white powder from his left sock. ..."

64 The total weight of the white powder which was heroin, was 7.938 grams of between 60 and 75 per cent purity.

65 From these basic facts the following is established. The applicant had a store of heroin on his premises and on 19 June 1999 was engaged in drug dealing with 17 packages on him, comprising approximately 9 grams weight overall. On 21 September 1999 he was carrying out the same activity with 15 packets found on him comprising about 8 grams.

66 The learned sentencing Judge had the benefit of a full plea in mitigation by counsel and remanded the matter for consideration.

67 On 8 March 2000 the applicant was sentenced. After detailing the facts and significant matters in mitigation, the learned sentencing Judge took the view that the only disposition was a sentence of immediate imprisonment. He noted that counsel had referred him to a decision of this Court in Quach v The Queen [1999] WASCA 210 whereby Ipp J summarised a variety of cases. The learned sentencing Judge thought there were distinguishing factors, one being the quantity with which he was dealing was significantly less than that involved in Quach. However, it was impossible to avoid the conclusion that, as far as this offender was concerned, he was an extremely active street dealer in heroin. His Honour continued:

"Notwithstanding whatever reasons might be advanced for his determination to so deal, it is not suggested that he is a person addicted. He was purely and simply, clearly and obviously in the business of selling heroin to citizens of this State as is verified in my view, by the fact that one offence was committed whilst he was on bail for the other offence. ..."

68 After acknowledging that credit would be given for a plea of guilty at an early opportunity, the sentence on the first indictment was that:

"... he ought in the gross be sentenced to a term of 4 years' imprisonment overall; that is, 4 years on each count to be served concurrently. His plea of guilty causes that to be reduced to a term of 3 years."

69 In respect to the second indictment, his Honour said:

"With respect to the one count ... having been committed in open defiance of the law whilst on bail for the first two offences, ought, in my view, to attract a sentence in the gross of 6 years' imprisonment. This is reduced to a period of 5 years' imprisonment in recognition of his plea of guilty at an early opportunity. Those terms on the two indictments ought and must be served cumulatively, therefore making a total of 8 years' imprisonment on the indictable matters."

70 The applicant was therefore sentenced to a total of 8 years imprisonment in respect of the three counts of possession of heroin with intent to sell or supply it to another, in circumstances where the offences provided cogent evidence that he was a drug trafficker.

71 The applicant seeks leave to appeal against the sentence of 5 years imposed in respect of the second indictment. The grounds are as follows:

"1. The learned Sentencing Judge erred in fixing a head sentence of six years in respect of the count contained in the Second Indictment.

(a) The amount of heroin concerned in the first Indictment was 37.86 grams and the amount concerned in the second Indictment was 7.9 grams.

(b) The purity of the heroin concerned in the second Indictment was similar to that concerned in the first Indictment.

(c) Whilst the offence was committed on bail, this only detracted from the mitigation which could have been afforded to the offender.

(d) The fact that the Appellant committed the offence whilst on bail ought not to have operated so as to increase the proper starting point or tariff for the offence.

(e) The learned Sentencing Judge erred in treating the fact of the commission of the offence whilst on bail as a factor which would, in effect, double the seriousness of the offence.

(f) The aggravating aspect of the offence being committed whilst on bail was adequately and properly dealt with by the learned Sentencing Judge in making the sentence fully cumulative on the previous sentence.

2. The learned Sentencing Judge erred in failing to impose an adequate discount to the sentence of six years for the 'fast-track' plea of guilty.

(a) The discount afforded to the Appellant on the first Indictment for an early plea of guilty was one year, equalling one quarter of the starting point for the head sentence.

(b) The discount afforded to the Appellant on the second Indictment for an early plea of guilty was one year, equalling one sixth of the head sentence.

(c) In all the circumstances, the appropriate discount on a head sentence of six years was at least 18 months."

72 The principal attack on the sentence is made as to the basis upon which the learned sentencing Judge treated the fact of the commission of this offence while on bail. It was argued on behalf of the applicant that whilst the fact that an offence is committed while on bail is a relevant circumstance, it should be dealt with in ways other than an actual increase in the sentence.

73 The applicant relied for this submission upon the decision of the Full Court of the Supreme Court of Victoria in R v Gray [1977] VicRp 27; [1977] VR 225. Gray pleaded guilty to a number of counts of robbery under arms, robbery, larceny of a motor car for use in connection with the commission of a felony and theft of a motor car for use in connection with the commission of a felony. He admitted 13 prior convictions. All the offences except two were committed while the applicant was on bail and probation.

74 McInerney and Crockett JJ dealt with the circumstances of the offences being committed on bail as follows at 229:

"As to the circumstance that offences were committed whilst the applicant was on bail, it is, we think, permissible for a sentencing judge to take this into account at least to the extent of assessing the prospects of the applicant's reformation. ... The real point is that the commission of offences whilst on bail indicates contempt for or disregard of the system of law under which bail was granted to the offender; it suggests that the offender has small regard for the law and little intention of obeying its commands.

Furthermore, it may be said that the person who commits an offence on bail has abused or betrayed the confidence reposed in him by the tribunal which granted him bail. The fact that a crime has involved a breach of confidence or trust, eg by a solicitor or bank manager or member of the police force, has always been regarded as a matter relevant to the question of sentence - cp. R v Wright (No 2) [1968] VicRp 17; [1968] VR 174, at p 181. Prima facie the quantum of sentence is dependent on the circumstances of the commission of the crime and its immediate consequences, and should not be increased by reference to events occurring after the offence has been committed. But just as conduct subsequent to the commission of the offence which indicates a clear intention to reform is a matter which the offender is entitled to have taken into account in his favour, so also conduct tending in the other direction, ie showing that the offender is unlikely to reform, or has at least not yet reformed, is a matter relevant to the sentencing discretion, if or in so far as it suggests that to extend clemency would serve no useful purpose or that leniency is likely to be abused."

75 In the circumstances their Honours left open the question whether a sentencing Judge was entitled to increase the sentence which he would have otherwise awarded by reference to the circumstance that the applicant was on probation or on bail.

76 The question was answered in the most recent expression of the approach of courts in Victoria. In Basso and Frazzetto (1999) VSCA 201; (1999) 108 A Crim R 392, Chernov JA said at 397:

"The approach by this Court, albeit often unstated in terms, has been to regard the commission of an offence whilst the offender is on bail as an aggravating factor. In Storey [1998] 1 VR 359; (1996) 89 A Crim R 519, for example, this Court considered, inter alia, the issues of the onus and standard of proof in sentencing. Winneke P, Brooking and Hayne JJA and Southwell AJA recognised (at 365; 525) that the fact that the offence was committed whilst the offender was on bail, could be described as a 'circumstance of the offender'. At 366; 526, however, their Honours rejected the utility of drawing a distinction between circumstances of the offender and those of the offence as a basis for 'regulating proof of facts which bear upon sentence'. A relevant distinction, they said (at 369; 528) was between circumstances adverse to the offender (aggravating factors) and circumstances in favour of the offender (mitigating factors). It would follow that since the fact of the commission of an offence during the period of bail is against the interests of the offender for sentencing purposes, it is to be treated as an aggravating factor.

That the aggravating circumstance may, in appropriate cases, point to greater severity of sentence was made clear by Brooking JA in England [1999] VSCA 95; (1999) 106 A Crim R 99 at 104 [17], with whose reasons Batt JA and I agreed.

By committing the offence whilst on bail, the offender usually demonstrates, inter alia, that he or she has little regard for the law and is prepared to offend notwithstanding that he or she has been granted liberty upon a condition of being of good behaviour pending trial. In my view, as a matter of common sense, the commission of an offence in breach of such a condition constitutes an aggravating factor, which can be taken into account by the sentencing Judge in determining the appropriate sentence. As their Honours said in Gray, whether such consideration results in an increase in the sentence above what it would otherwise have been must depend on the circumstances of the case."

77 Charles JA in agreeing with the reasons of Chernov JA commented at 404:

"... on the question whether the commission of an offence whilst on bail is an aggravating factor in sentencing. I should myself have had no doubt that this was a circumstance of aggravation."

78 The approach of the Victorian Court of Appeal is with respect, consistent with the authority of Veen v The Queen (No 2) [1988] HCA 14; (1987) 164 CLR 465 at 477 per Mason CJ, Brennan, Dawson and Toohey JJ:

"The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."

79 Although the High Court in Veen was dealing with the antecedent history of the offender, logically, as McInerney and Crockett JJ point out in Gray (op cit), conduct subsequent to the commission of the offence may be equally relevant.

80 In R v Richards (1981) 2 NSWLR 464 the Court of Criminal Appeal considered the position of a person who commits further offences on bail and said, at 465:

"As the lists of persons awaiting trial on serious criminal charges continue to lengthen, there are at large within the community an increasing number of persons on bail. Many of those persons will in due course plead guilty to, or be found guilty of, the offences for which they are awaiting trial. The community must be protected as far as possible from further criminal activities by persons who take advantage of their liberty on bail to commit further crimes. The only means open to the criminal courts to seek to provide this protection is to pass severely deterrent sentences upon those who thus abuse their freedom on bail. This will ordinarily involve a significant accumulation of the sentence for any subsequent offences on top of the sentence proper to be passed for the original offence. It must be made abundantly plain that persons at large on bail cannot expect to commit further crimes 'for free'. On the contrary, they will receive salutary penalties for the very reason that they have abused their freedom on bail by taking the opportunity to commit further crimes."

81 Richards was followed in Pham and Ly (1991) 55 A Crim R 168.

82 In Readman (1990) 47 A Crim R 181, Maxwell J, on behalf of the court, said at 184:

"This Court has repeatedly stated that the commission of an offence by an offender who is in the community on conditional liberty, whether that be on bail, on a recognisance, or on a parole, will be considered as a matter that aggravates the offence."

83 In Laurentiu and Becheru (1992) 63 A Crim R 402, Wood J, with whom Sharpe J agreed in the course of dismissing the appeal, noted that the offence and other drug offences were committed while on bail for a serious offence involving the supply of heroin. Kirby P dissented in the result, but on this issue agreed with the majority. He said at 404:

"Most serious of all was the fact that Mr Laurentiu committed the subject offence whilst he was on bail for an offence of supplying heroin contrary to the Drug Misuse and Trafficking Act 1985 (NSW). The authorities which Wood J has cited, as well as ordinary common sense which those authorities reflect, indicate the seriousness with which a sentencing judge will ordinarily approach the commission of further grave offences whilst an accused person is on bail."

84 The researches of counsel in preparation for this appeal have not been able to point to any clear authority on the subject in Western Australia such as exists in Victoria and New South Wales.

85 R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998, was a Crown appeal on five offences involving the distribution of heroin, some offences being committed while on bail for other offences. The grounds of appeal asserted this fact as part of the error in the sentencing discretion. Although the sentences were increased, this aspect was not specifically referred to by the Court. I consider the fact some offences were committed while on bail was an aggravating feature and impliedly a matter taken into account when the court increased the sentences.

86 R v Ruich [2000] WASCA 84 is another example of a Crown appeal involving drug trafficking, where again some offences were committed while on bail and this fact was subsequently a ground of appeal by the Crown. Although the sentence was increased, this fact was not specifically referred to. Again I regard the bail issue as implicit in the Court's reasons to increase the sentence.

Is the commission of an offence while on bail for another offence an aggravating factor?

87 Implicit in many judgments in this Court is a recognition of the fact that an offence committed while on bail is a relevant factor to be taken into account by a sentencing Judge and will aggravate the commission of the offence.

88 In my view this principle should now be made explicit for Western Australia, essentially for the reasons advanced by Chernov JA in Basso and Frazzetto at 397 to 398.

89 The application of this principle does not however mean that in all cases the length of a sentence will be necessarily increased because an offence was committed while on bail for another offence. It is a circumstance to be taken into account and given appropriate weight in the mix of factors to be considered in arriving at an appropriate penalty. On some occasions the aggravating factor may have little, or no, weight. In circumstances such as the present, where the offence committed on bail is in reality a continuation of the criminal conduct, the subject of the earlier charges, then commonsense would suggest that it will have significant weight.

90 Nor is an increase in sentence the only way in which a court may reflect the aggravating circumstance. A court may decline to discount a sentence for mitigating factors if of opinion that the aggravating circumstance compensates for those factors. A court may more readily exercise a discretion to accumulate sentences either wholly or partially, where the latter offence is committed while on bail. A court may take into account the fact of the commission of an offence while on bail in determining whether in the circumstances a parole eligibility order is justified.

91 In the present case it is clear the learned sentencing Judge regarded the circumstance of the offence having been committed while on bail as requiring the sentence to be increased from 4 years to 6 years, before applying any discount for the pleas of guilty and mitigating factors.

92 The total sentence actually imposed in respect of the drug offences disclosed in the indictments was one of 8 years. To this sentence is added a further 6 months in respect of the offences dealt with pursuant to the Sentencing Act s 32.

93 Complaint is made as to the starting point of 6 years which is said to be excessive.

94 A tariff for multiple offences of street dealing in heroin is beginning to emerge.

95 Of course the circumstances of each offence are different but there are however several common characteristics. Street dealers, such as the applicant, often will be in possession of a number of individual deals. The precise number is apt to depend on when, in their trading cycle, their apprehension takes place.

96 They may be also in possession of a stock of heroin in another location. This case is an example. Sometimes they may have possession of a quantity of money. Whether this is so may depend on their banking practices. The presence or absence of money provides no reliable indication of the level of dealing activity although an inference can obviously be drawn from possession of a significant amount of cash.

97 Sometimes dealers will be caught with the standard paraphernalia of their trade, scales, plastic bags and the like, sometimes not.

98 An important difference for sentencing purposes is whether the dealer is also a user, dealing principally to support a habit and obtain cheap supplies, or whether the dealer, as is the applicant in this case, is engaged in the trade solely for profit.

99 In Dao, op cit, the Crown appeal was allowed and after adjustments an effective total term of 6 years was imposed. It should be noted in respect of this sentence, there is always a degree of moderation in a sentence passed consequent upon a successful Crown appeal. Furthermore, it is significant that the purity of heroin in that case was extremely low.

100 In Smith v The Queen [2000] WASCA 243 the Court of Criminal Appeal by majority restructured the original sentences for a non-using street level distributor of narcotics. The total effective sentence was one of 6 years.

101 In Dailey v The Queen [2000] WASCA 158 a sentence of an aggregate of 4 years imprisonment to fast-track pleas of guilty to four charges, two of possession with intent and two in relation to street dealing to support his habit, was not disturbed on appeal.

102 In Quach, op cit, the Court of Criminal Appeal set a general range of sentences for possession of larger quantities of heroin, such as to place the possessors at a level higher than street dealers.

103 The sentences in that range commence around 8 years.

104 Although a tariff is beginning to emerge, the limits to the range of sentences most commonly imposed on multiple offending street dealers has not yet been settled. However, I consider the normal range is between 4 and 8 years, depending on the circumstances.

105 A total sentence of 8 years in this case is at the upper reaches of an appropriate range. I say the upper reaches because of the range for higher level dealers set out in Quach, op cit.

106 However, I am not persuaded that the sentence exceeds the range of a sound sentencing discretion so as to manifest error, particularly in circumstances where the commission of the particular offence while on bail has been taken into account as an aggravating circumstance. Furthermore, the sentencing Judge paid specific regard to the principles and ranges in Quach when he selected the appropriate sentences.

107 As Ipp J said in Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998:

"General sentencing principles offer guidelines as to how the sentencing Judge is to measure the particular importance of each of the relevant factors, but there is ample room for the exercise of individual judgment and the appropriate sentence in each case is left to the discretion of the individual Judge.

The advantage of this system is that it allows the individual Judge to mould a particular sentence to the needs of each case and in so doing promotes the interests of justice. However, the very nature of the relevant factors is such that inevitably different Judges will have different views as to the relative importance of each. Inherent in the system is the potential for differences to occur between Judges as to the relative significance of each relevant circumstance, and this often results in members of appellate courts being of a different opinion to that of the sentencing Judge as to the overall sentence imposed. By the nature of the sentencing exercise, the more the number of circumstances that have to be weighed before arriving at the appropriate sentence, the greater the room for judicial difference.

The law recognises the potential for variance of judicial views in sentencing by laying down that, where no error of principle has occurred, the task of appellate courts sitting on sentencing appeals is merely to consider whether the sentencing Judge has exceeded the bounds of an appropriate sentencing discretion, not whether they would have imposed the sentence in fact ordered by the sentencing Judge. There is, therefore, an acknowledgment that a difference in judicial opinion in sentencing may arise, but as long as the sentence imposed has been arrived at after a correct application of the sentencing principles, and the sentence is within an appropriate sentencing range, the sentence will not be set aside."

108 Applying this principle to the present case, I do not consider there has been any error of principle demonstrated. Nor do I consider that the total sentence is manifestly excessive so as to justify interference by this Court.

109 Therefore I would not allow the appeal on ground 1.

110 Complaint is also made that the learned sentencing Judge failed to make an adequate discount to reflect the recognition of an early plea of guilty. The discount applied for the plea on the first indictment was one-quarter of the sentence and for the plea on the second indictment one-sixth of the sentence. In Pearce v The Queen (1998) 194 CLR 610, McHugh, Hayne and Callinan JJ said at 624:

"A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well of course, as questions of totality."

111 It is beyond question that an offender who pleads guilty at an early opportunity is entitled to a reduction in sentence to reflect that fact. Neither the Sentencing Act nor decisions of this Court lay down an express amount by which a sentence ought to be reduced, although the normal range is between 15 and 35 per cent depending on circumstances.

112 There may be an element of artificiality in assigning separate reductions for offences being dealt with on a combined plea of guilty on a single day. Nevertheless, in my respectful view that is what the decision in Pearce requires a Judge to do.

113 In some cases the aggravating circumstances of an offence may be such that, consistent with other principles of sentencing, the reduction for an early plea of guilty will be comparatively small. A Judge may be more ready to make a lesser deduction in circumstances where the Crown case is very strong or the offence is very serious.

114 In other cases the circumstances may indicate a deduction at a higher level, particularly where there is also evidence of real remorse.

115 An obvious aggravating circumstance which may at times militate against a large reduction of sentence for an early plea of guilty is the fact that an offence was committed whilst on bail.

116 In the present case the learned sentencing Judge correctly increased the sentence because of that aggravating circumstance.

117 In the normal course one would have expected a discount for the early plea of guilty of the same order as for the first indictment, namely 25 per cent.

118 That percentage reduction on the sentence of 6 years would reduce the sentence to one of 4 years 6 months imprisonment.

119 I am of opinion that by increasing the sentence and also reducing the reduction for an early plea of guilty, the learned sentencing Judge has fallen into an error of principle by introducing an element of double punishment for the aggravating circumstances of the offence. Having imposed a sentence of 6 years, there appears no reason why the discount applicable to the first indictment should not have been applied. Technically, the plea on the first indictment was not a plea made at the earliest available opportunity, whereas the plea of guilty to the second indictment was made at the earliest opportunity.

120 Where a ground of appeal asserts that a sentence is manifestly excessive, it is not appropriate for this Court to re-sentence by making a tinkering reduction. A reduction of 6 months on a sentence of 5 years could be so described.

121 However, the situation is different where, as here, an error of principle is shown. Then the sentence must be altered unless there would be no miscarriage of justice to let it stand.

122 It follows that the applicant has established the Judge fell into error and I would uphold ground 2 of the appeal.

123 I would therefore allow the appeal, set aside the sentence of 5 years and in lieu substitute a sentence of 4 years 6 months. The parole eligibility order remains.