Sentencing Act, s 93 and s 94

Respondent's application for leave to appeal against sentence dismissed

Atholwood v The Queen (1999) 109 A Crim R 465

Bellissimo v The Queen (1998) 84 A Crim R 465

Darwell v R (1997) 94 A Crim R 35

Mada v The Queen [2003] WASCA 1

Mill v The Queen (1988) 166 CLR 59

1 MURRAY J: I agree with Wheeler J that in the particular circumstances of this case, both the Crown's appeal against sentence and the respondent's application for leave to appeal should be dismissed.

2 I specifically accept that it is necessary, in considering the severity or inadequacy of those sentences, to have regard to the odd fact that, because of the operation of the Sentencing Act 1995 (WA) and the Sentence Administration Act 1995 (WA), to impose the additional aggregate term of 21/2 years imprisonment cumulatively upon the previous term of 8 years imprisonment, with a parole eligibility order applicable to the resulting term of 101/2 years imprisonment, will result in the respondent serving exactly the same time before becoming eligible for 2 years parole as if the term of 21/2 years had been ordered to be served without eligibility for parole, but cumulatively upon the 8 year parole term.

3 TEMPLEMAN J: I have read in draft the reasons to be published by Wheeler J. I agree entirely with those reasons and with the orders proposed by her Honour. There is nothing I wish to add.

4 WHEELER J: The court heard together a Crown appeal against sentence and the offender's application for leave to appeal against sentence, in respect of the same four offences. Those offences, to which Mr Roberts entered pleas of guilty on 19 February 2003, consisted of one count of selling methylamphetamine to another on 24 January 2001, two counts of supplying methylamphetamine to another on 31 January and 15 February 2001, and one count of possessing methylamphetamine with intent to sell or supply on 15 February 2001. On 21 February 2003 Roberts was sentenced to 2 years and 6 months imprisonment upon each count, all to be served concurrently with each other but cumulatively upon a sentence of 8 years which Roberts was then already serving. The Crown appeal is on the basis that the sentences are very lenient ones for the offences of which Roberts was convicted, which proposition is undoubtedly correct. Roberts' application is based largely upon the totality principle, and also refers to what is submitted to be a lesser than usual need for personal and general deterrence, having regard particularly to certain other consequences flowing from his convictions.

5 The quantities of drug involved in each of the four counts were respectively 14.1 grams at 29 per cent purity; 22.9 grams at 22.9 per cent purity; 29 grams at 11.2 per cent purity; and 8.33 grams and .82 grams at 21 per cent and 6.2 per cent purity respectively. The offences were detected as a result of an undercover officer's dealing with a co-accused named Lehman during December 2000 to 15 February 2001. There were

meetings between Lehman and the officer and telephone intercepts and observations by surveillance officers. Roberts was searched by police on 15 February 2001 and found to be in possession of over $42,000 in cash. Significantly, $8,500 of that was drug control purchase money which had been handed to Lehman by the undercover officer for three controlled drug purchases which had totalled $10,400. It is apparent that Roberts had in his possession the greater part of that drug control money, with the obvious inference arising that Lehman had purchased his drugs from Roberts before on-selling them to the undercover officer. Surveillance evidence supported that inference. A combination of the surveillance evidence and the results of searches at Roberts' home meant that particular transactions engaged in by Lehman were able to be effectively traced back to Roberts, giving rise to the particulars of the amounts of drug in question in respect of each count. The count of possession with intent was in a somewhat different category, relating to two bags containing methylamphetamine located in the freezer at Roberts' home.

6 Roberts declined to participate in a formal interview with police, although he did respond to some questions asked during the search of his residence. He maintained that the greater part of the money located in the house belonged to a motorcycle club and had been given to him to pay for club "colours". He had been president of the motorcycle club at the time, although he had since severed connection with the club.

7 So far as his personal circumstances were concerned, he was at the time of sentencing 51 years of age. His mother had brought him up without assistance from his father, from whom she separated quite early in his life. He had played sport until injured in a motorcycle accident and had worked in a variety of occupations. He had a lengthy and significant record of offending. The most his counsel was able to say about his record was that there were "periods of time that he didn't offend", those periods stretching from the mid 1970's through to the late 1980's and a period of about three or four years in the late 1990's. At least some of his offending was said to be related to a gambling problem. The history of offending included offences of armed robbery and other offences of violence.

8 It was accepted by his counsel that his plea of guilty could be considered a late plea, but nevertheless it was accepted also both by the Crown and by the learned sentencing Judge that he was entitled to some credit for it. Leaving aside the totality principle and the effect of his convictions, there was clearly not a great deal to be said by way of mitigation.

9 In July 2001, Roberts had pleaded guilty to offences of attempted possession of methylamphetamine with intent to sell or supply (421 grams) and possession of methylamphetamine with intent to sell or supply (39.58 grams). For those offences he received a total of 8 years' imprisonment with eligibility for parole, which sentence he was serving at the time of his sentencing in respect of these offences. It was put to the court by his counsel, and not disputed by the Crown, that he had been "a model prisoner" and was in the category sometimes referred to as a "trustee". That sentence of 8 years was plainly a factor giving rise to totality considerations, although it should be noted that an aggravating factor of the present offences was that they were committed whilst Roberts was on bail for the offences for which he received 8 years' imprisonment. There was, it appears, a period of some 102 days which Roberts had spent in custody awaiting trial in relation to these offences. It was necessary for his Honour to give credit for those days.

10 It was further accepted by the learned sentencing Judge that Roberts had, as a result of the most recent offences, been served with a deportation notice as a result of which he would upon release be deported to New Zealand and would therefore lose contact with his two children, presently aged 7 and 9, who live in this country. His Honour also accepted that, as a consequence of forfeiture orders flowing from these offences, Roberts had lost substantial property, including property which on any view had been lawfully acquired.

11 Turning first to the Crown appeal, it must be accepted that, as the Crown submits, the offences were serious ones. Roberts was plainly involved in the commercial enterprise of distributing methylamphetamine in the community. The effective term imposed was significantly below terms commonly imposed for comparable offending. It would not have been surprising to see sentences of approximately 6 years imposed for each of the offences, and an overall sentence imposed, in recognition of the criminal enterprise in which the respondent was apparently engaged, of approximately 8 years' imprisonment in total. The learned sentencing Judge was not in my view in error in his assessment that overall the offences warranted, without allowance for totality and other factors, a sentence of "of the order of 7 years or so".

12 As to this observation, I note in passing that one of the grounds of appeal is to the effect that his Honour erred in failing to fix individual terms for each offence before considering concurrency and totality, as required by the observations in Pearce v The Queen (1998) 194 CLR 610 at [45], and that it is further submitted by the Crown that his Honour was in error in making all four terms run concurrently. However, as to these submissions it seems to me clear enough from the transcript of the sentencing submissions that it was always the submission of the Crown that a sentence of approximately 6 to 8 years in total, for all of the four offences, cumulative upon the terms which Roberts was already serving, was the appropriate sentence. That emerges, for example, from the exchange at p 30 of the DPP's appeal book. If his Honour was in error in the way in which he came to approach the manner of fixing the sentence and considerations of totality and concurrency, it was an approach positively invited by the way in which the Crown submissions were put. In any event, it also appears that the principal thrust of the Crown appeal is not as to the way in which his Honour went about fixing the terms, but is as to the alleged leniency of the terms themselves. It is in my view therefore appropriate that this Court focus on that issue alone, in relation to the Crown appeal.

13 When one considers the terms of 2-1/2 years overall, it is an important consideration that they are terms arrived at after an allowance for the period of over 100 days which Roberts had already spent in custody in relation to these offences. His Honour "scaled up" that time in custody to a period of 6 months' imprisonment. It is pointed out by counsel for the respondent that a non-parole term of 6 months, allowing only for ordinary remissions, would have resulted in approximately 102 days in custody, but that the time in custody was also able to be scaled up to represent a term of approximately 10 months' imprisonment with eligibility for parole, on the assumption that parole would be granted. The effect which his Honour achieved was not therefore precisely equivalent to that activated by the now more commonly followed route of backdating a term, wherever possible, by the time which has been spent in custody. Depending upon whether the respondent was ultimately considered suitable for parole, the order might have been more severe in its effect than an order by way of backdating. In any event, it is clear from the allowance which his Honour made and from his Honour's sentencing remarks that the "real" term which his Honour contemplated and sought to achieve was one of three years' imprisonment.

14 It is also pointed out on behalf of the respondent that because of the effect of ss 93 and 94 of the Sentencing Act, the effect of making the 2-1/2 year term imposed on the respondent cumulative upon the term which he was already serving would effectively be to deny to the respondent any benefit from the order for eligibility for parole made in respect of that 2-1/2 years term. It has been doubted whether it is proper for courts in Western Australia, which have no authority to set minimum terms, to mould head sentences with an eye to the length of the non-parole periods laid down in s 93(1): Hintz v The Queen [2002] WASCA 38 per Anderson J at [15]. In my respectful view, that doubt is well-founded, and it is not appropriate for a sentencing Judge or an appeal court to mould a head sentence so that any particular length of non-parole period must be served. However, in my view it is open to a sentencing court to have regard to the effect which the operation of the Sentencing Act has upon the sentence which it imposes, at least where, as here, the effect is to negate the effect of an order which it makes.

15 In the present case, as I have noted, his Honour's scaling up of the time already spent in custody made no allowance for any possible eligibility for parole, and the effect of the Sentencing Act upon the order which his Honour made was such as to effectively negate the order for parole eligibility made in respect of the 2-1/2 years which his Honour ordered. The overall effect was that the respondent would in practical terms be serving a term equivalent to 3 years' imprisonment without any eligibility for parole in respect of that term.

16 It is trite to say that one aspect of an order for parole eligibility is to the mitigation of punishment: Thomson v The Queen (1992) 8 WAR 387. It is also trite to observe that totality considerations arise when a sentence to be imposed is to be served cumulatively upon a sentence which an offender is already serving. That latter observation is based upon the understanding that a sentence which is not to commence until some future date is necessarily more severe than one to be commenced immediately. The combined effect of these two considerations means that the sentences which his Honour imposed, were in their effect upon the respondent significantly more severe than appears on their face. In addition, as I have noted, his Honour also had to pay some regard to the personal circumstances of the respondent and in particular the fact that by the commission of these offences he had forfeited his right to remain in Australia and therefore apparently lost any prospect of future physical contact with his children. In the peculiar circumstances of this case, I am not persuaded that the sentences imposed, although plainly lenient, could be said to have been in error.

17 The applicant's application for leave to appeal against sentence can in my view be shortly dealt with. The applicant in that application points to the time already spent in custody, and the manner in which his Honour scaled that up, and also to the interaction of ss 93 and 94 of the Sentencing Act with the orders made by his Honour, in order to demonstrate that the sentences imposed were significantly more severe than appears on their face. I have already accepted in these reasons that proposition. However, having regard to the serious nature of these offences, it is only because the sentences imposed by his Honour were significantly more severe in their practical effect than appears on their face, that those sentences could be justified. Had it not been for those matters, in my view the sentences would have been manifestly inadequate and the Crown appeal must have succeeded.

18 The applicant points also to his own personal circumstances as suggesting that there was no need either for personal or general deterrence in his case, having regard to the confiscation order, the order for deportation, and the term he was already serving in relation to other offences. Having regard to the applicant's history of offending, and in particular to the circumstance that these offences were committed on bail for other drug related offences, I am not personally persuaded that there could be said to have been no further need for specific deterrence in the applicant's case. However, even if that proposition were accepted, it has long been established that considerations of a general deterrence are of particular importance in relation to offences of this kind. In my view, any sentences more lenient than those imposed in relation to this offending would have inadequately reflected that consideration.

19 In my view the applicant's application for leave to appeal against sentence should be refused, and the Crown appeal against sentence should be dismissed.