R v Campbell [2002] WASCA 143

Sentencing Act 1995 (WA), s 6

Sentences of 2-1/2 years imprisonment imposed, two to be served cumulatively and the rest concurrently

Brittain v The Queen [2001] WASCA 117

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Gyurka [2001] WASCA 113

Hough [2002] WASCA 42

Law [1995] QCA 444; (1995) 84 A Crim R 142

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999

R v Duncan (1983) 47 ALR 746

R v Liddington (1997) 18 WAR 394

Rudd v The Queen, unreported; SCt of WA; Library No 970225; 15 May 1997

Smith v The Queen [2000] WASCA 243

Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721; 14 December 1998

Verschauren v The Queen (1995) 17 WAR 456

Watson (1981) 3 A Crim R 254

1 WALLWORK J: On 15 May 2002 this Court unanimously allowed a Crown appeal against a suspended term of imprisonment which was imposed upon the respondent in the District Court at Perth on 22 November 2001. Pursuant to that sentence a learned Commissioner had sentenced the respondent to an effective term of 4 years' imprisonment with respect to 60 convictions of possession of heroin with intent to sell or supply. Each of those 60 convictions was punished by a term of 4 years' imprisonment which was suspended for a period of 2 years. All of the sentences were ordered to be served concurrently with one another.

2 Having heard argument from both sides this Court allowed the appeal and quashed the suspended sentences. The Court substituted a sentence of 2 years and 6 months' imprisonment for each of the 60 offences and ordered the first two of those sentences to be served cumulatively and the remainder to be served concurrently. The result is a total effective sentence of 5 years' imprisonment. The sentences were back dated by 72 days to 4 March 2002 to allow for time which the respondent had spent in custody. The respondent was made eligible for parole.

3 My reasons for agreeing in the order of the Court are set out below.

4 When sentencing the respondent the learned Commissioner said:

"In summary, you dealt in heroin for financial reward to the tune of about $22,000 over a period of about 2 months and you chose to do so without any threats being made to you that anything would be done to you or your friends. In total, the amount of heroin involved is about 198 grams, which is a very high amount. The offending was repetitive. It was daily over a couple of months. In my view, that adds to the seriousness. Not only do I need to take into account the factual circumstances in connection with all of these offences but I also need to take into account other matters including matters personal to you. You were born in October 1969 and so you are now 32 years of age. You are single and you have no dependants."

5 The Commissioner said that, in his view, the respondent was a reasonably intelligent person who had been unemployed when the relevant offences were committed. However, he had a history of employment as a rigger and scaffolder. At the time he was sentenced the respondent was assisting his parents in their trucking business.

6 The Commissioner said that the respondent had a history of drug misuse. He understood that the respondent had commenced to use amphetamines when he was 22 years of age. That had continued until he was 26 years of age. At the age of 24 years the respondent had also started to use cannabis. At the age of 27 years he had commenced to use heroin. Over time his level of heroin use had increased.

7 The Commissioner said that it seemed that the respondent had been able to support his habit from money earned working, including on mine sites where he was well paid. The Commissioner said that the money from the respondent's earnings had been supplemented by money from drug dealing to pay for drugs to satisfy the respondent's needs.

8 Importantly the Commissioner said he was satisfied that whilst on bail the respondent's performance on rehabilitation programmes had been excellent. He had attended counselling at the North-East Metropolitan Community Drug Service Team and at the Palmerston Association. His urinalysis results had been clean of elicit drugs since the 18 December 2000, save for some results in September 2001 which had been adequately explained as being the result of the respondent needing to take medication for back pain. That meant that the respondent had been drug free for approximately 12 months.

9 The Commissioner stated that the respondent's performance in relation to his rehabilitation had been so good that his counsellor had expressed the view that he did not require drug abuse counselling at that point in time. The respondent had worked hard to build a positive pro-social lifestyle for himself. The Commissioner said that his hard work in that regard and his will to remain drug free together with the support of his caring family, all pointed to his being able to maintain his lifestyle free of drugs for the foreseeable future and thereafter. The Commissioner said that the respondent's hard work and success in relation to rehabilitation was a very significant and substantial mitigating factor.

10 The Commissioner noted that the respondent had a record of convictions, most of which related to traffic matters. However, there were a number of convictions for drug offences from 1997 to 1999 inclusive. They were for the possession and cultivation of drugs for which the respondent had been fined varying amounts, with the highest fine being $500 and the total being $2,150. In December 1999 he had also been convicted of receiving and fined $300. The Commissioner said that the respondent had never been convicted of an offence of possession or cultivation of a drug with intent to sell or supply.

11 The Commissioner noted that the respondent had pleaded guilty and had shown remorse. However he had not accepted the version of facts presented by the Crown and it had been necessary to have a hearing in order for the Commissioner to decide the proper factual basis for sentencing. In that regard, the Commissioner had found against the respondent and made findings that the sentencing should proceed having regard to the facts as presented by the Crown.

12 The Commissioner said that damage was being caused to the community by drug users seeking money or property to convert to money to purchase drugs. There was also the trauma that drug users cause to the victims of their crimes and to their own families.

13 The Commissioner said that in his opinion the proper starting point in the respondent's case was a period of imprisonment of 8 years which should be reduced by 25 per cent because of his plea of guilty. The Commissioner then said:

"I should say that had you readily accepted the full extent of your involvement as asserted by the Crown and as found by me, then I would have given you a discount in the order of one third, or about 2 years and 8 months. I think that the period of 6 years should be further reduced by 1 year 6 months to arrive at a figure of 4 years 6 months to take account of your hard work and compliance with counselling and treatment programmes designed to rehabilitate you. I will reduce the period of 4 years 6 months by a further period of 6 months to take into account the time that you have spent in custody prior to today. The important question is whether or not the period of 4 years' imprisonment should be required to be served immediately or whether it should be suspended and if so, for how long."

Whether the Sentences should have been Suspended

14 The Commissioner repeated that the respondent's offences were very serious. He said that the respondent had profited financially in the sum of about $22,000. There had been repeated offending with offences having been committed daily over a period of about two months. He said he thought the money obtained by the respondent was simply used to buy drugs to support his own habit and also to buy drugs for sale to keep the operation ticking over so that the respondent could continue to support his own habit. He said it was seldom the case that the Court saw a person such as the respondent with such a bad drug problem over a long period of time "who has taken such giant strides in your own rehabilitation since the time you were last apprehended." He accepted that the respondent had a positive desire to stay off drugs and he noted he had a very caring and supportive family. He said that if the respondent was not imprisoned immediately that, with his resolve and the support of his family, there was a very good chance that he would become a valuable member of the community. The Commissioner said he regarded the respondent's case as an exceptional case. That was why he would order that the terms of imprisonment should be suspended for a period of 2 years. He also said that each and all of the counts on the indictment were part and parcel of one course of conduct. That was why he made each sentence concurrent.

15 In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [57] Kirby J said:

"In Lowndes v The Queen this Court remarked that:

'A Court of Criminal Appeal may not substitute its own opinion for that of a sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion... The discretion which the law commits to sentencing Judges is of vital importance in the administration of our criminal justice system.'"

16 In the same decision Gleeson CJ and Hayne J referred to the words of Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 where their Honours said:

"It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law opposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

17 In this case, the Crown contended that to suspend the sentences which had been imposed upon the respondent was unreasonable in all the circumstances within the meaning of the words above in the House decision. This was because of the need to prevent the damage which the distribution of heroin does to the community.

18 In Wong v The Queen [2001] HCA 64; (2001) 76 ALJR 79 at 94 Gaudron, Gummow and Hayne JJ said at 77:

"A sentencing Judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender. Very often there are competing and contradictory considerations."

"The third point of general principle raised by the appellants involved a complaint that the Court of Criminal Appeal had failed to take into account the consideration of restraint conventionally observed in prosecution appeals. There is nothing in s 5D of the Criminal Appeal Act that dictates an approach of particular restraint to prosecution appeals. However that approach has existed in this country for decades. Section 5D was enacted in 1924. A long line of judicial authority has since established the conventional way in which prosecution appeals against sentence are approached. Where specific error of sentencing principle is not demonstrated and the complaint is one of manifest inadequacy of sentence, it is only where it is shown that the 'sentence is definitely outside the appropriate range that [a Court] is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence...' - Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 306; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 340 - 341 [62]."

"Although under s 5D leave to appeal against sentence is not required by the prosecution, the principle of restraint in allowing prosecution appeals against sentence is well entrenched. It has sometimes been explained by reference to the species of 'double jeopardy' that a prisoner uniquely faces in such an appeal. Whilst the facility of prosecution appeals is afforded to contribute to the desirable aim of consistency in sentencing, it is normal to require a clear or definite case of demonstrated appellable error before a prosecution appeal is upheld by a Court of Criminal Appeal."

21 In this State the principles upon which sentences are imposed are set out in s 6 and the following sections of the Sentencing Act 1995 (WA). The first proposition in s 6 is that a sentence imposed on an offender must be commensurate with the seriousness of the offence.

22 In my view, in this case, the learned Commissioner did not give sufficient weight to the seriousness of the 60 offences of possession of heroin with intent to sell or supply which the respondent had committed. The amounts of the drug in the charges varied from 0.4 grams to 2.80 grams. The respondent told the police officers that he was simply the middle man who packaged the heroin into marketable, sizeable quantities. He kept a written inventory of the packages and arrived at a profit figure. Another man would sell the drugs and then return and give the respondent the money from the sale of the drugs.

23 In Quach v The Queen, [1999] WASCA 210 Ipp J, whose reasons were agreed to by the other two Judges said at [13]:

"The prevalence and seriousness of criminal heroin use make deterrence the principal consideration in sentencing for heroin related offences. The terrible consequences to the community of trafficking in the drug are notorious. Where an offender consciously and deliberately, knowing full well what harm will be done thereby, participates (no matter in what capacity) in the heroin trade for commercial gain, it is ordinarily futile to argue that personal circumstances and antecedents have significant mitigatory force. See, for example, Darwell v The Queen (1997) 94 A Crim R 35; Heryadi v The Queen (1998) 98 A Crim R 578 and Musarri v R unreported; CCA SCt of WA; Library No 980662; 17 November 1998."

24 In my view this was a case where a sentence of immediate imprisonment was required because of the seriousness with which this community views the illegal distribution of heroin. The harm which the drug causes within the community is well known.

25 I am conscious of the admirable efforts which the respondent has made to overcome his addiction. However in view of the seriousness of the offence an effective immediate term of imprisonment of 5 years, which this Court imposed on 15 May 2002 was required. That term is shorter than it would normally be due to the fact that the respondent has

had it imposed upon him some 6 months after he was released on a suspended sentence.

26 MURRAY J: The reasons of Wallwork J, which I have had the advantage of reading in draft, express very adequately for me the reasons why I joined in the orders that the appeal be allowed, that the 60 sentences of 4 years imprisonment should be set aside, that sentences of 2 years and 6 months imprisonment should be substituted, that the first two sentences be served cumulatively and the remainder should be permitted to be served concurrently, with eligibility for parole.

27 Like Wallwork J, I considered that the discretion exercised by the Commissioner of the District Court had miscarried because the offences in their totality were simply too serious to allow for the imposition of sentences of imprisonment the service of which was ordered to be suspended. For the reasons mentioned by Wallwork J, I too was of the view that, particularly for purposes of punishment and general deterrence, the service of the terms of imprisonment should not have been suspended despite the very favourable circumstances personal to the respondent and in particular despite his supreme efforts to achieve his rehabilitation from the use of and trafficking in elicit drugs. His quite admirable efforts in that regard will no doubt stand him in good stead in the future and may enable him upon his release from prison to put together a law-abiding way of life as an upright member of our community.

28 In addition to what Wallwork J has said, I wish to make only a few observations on one particular aspect of the case. The process by which the Commissioner arrived at 60 sentences of 4 years imprisonment for possession of heroin with intent has been described by Wallwork J. It is to be noted that the individual offences committed on a daily basis over the period of two months involved quantities of heroin from as little as 0.4 of a gram to 2.8 grams. The degree of purity of the drug could only be ascertained with respect to that which was still in the respondent's possession when his house was searched under the authority of a search warrant at the end of the period in question.

29 That drug was of a purity of 41 per cent and so it can be seen that individual offences, separately charged, were in respect of quantities of drug which were relatively small whereas the total gross expected return from the trafficking enterprise as conducted to the point of the applicant's arrest, was over $140,000 for the two-month period. It was expected that a profit of nearly $53,000 divisible among three people would result, with the respondent expecting to net nearly $23,000 for the role he played in

the enterprise. It must be said that the scheme revealed a considerable degree of organisation.

30 In my opinion, the process of global sentencing followed by the Commissioner was wrong in principle in that it was likely to, and did in this case, "mask error": Pearce v The Queen (1998) 194 CLR 610 per McHugh, Hayne and Callinan JJ at 623 [44] - 624 [48].

31 The process masked error because it led to individual terms which, as we have held, were undoubtedly too long given the relatively small quantities of drug involved in the individual offences. The imposition of sentences which were individually too long in turn distorted the process of considering the degree to which they should properly be ordered to be served cumulatively and the point at which the totality principle would come into play (at a relatively early stage in this case having regard to the respondent's personal circumstances): Jarvis v The Queen (1993) 20 WAR 201.

32 In my opinion, the importance of the imposition of sentences for individual offences which are proportionate to the criminality involved in those individual cases cannot be overlooked. The proper application of principle in that way is essential if sentencing courts are to avoid the distortion of sentences for particular offences, a process which will inevitably give rise to problems of parity in sentencing as well as, as in this case, being likely to lead to error in relation to the decision of questions such as when it may be appropriate to suspend the service of the terms imposed, having regard to the sheer number of offences and the persistence of the offending over a period of time.

33 In this case, the process of resentencing was, of course, substantially affected by the principle of double jeopardy inherent in a Crown appeal, necessitating the imposition on appeal of a sentence of a lesser order of severity even in cases where the appellate court determines that it is obliged to intervene: R v Leucus (1995) 78 A Crim R 40 at 51 - 52; R v GP (1997) 18 WAR 196 at 231.

34 For those additional reasons, I joined in the view that the sentences which ought to be imposed for the individual offences were those of 21/2 years imprisonment and that the permissible degree of accumulation was limited in the extreme despite the large number of offences over the period in question.

35 MILLER J: I have had the opportunity of reading in draft the reasons of Wallwork J. I agree with those reasons and there is nothing I wish to add.