R v Ruich [2000] WASCA 84

Court of Appeal (WA)|2000-04-06|Before: Pidgeon J, Kennedy J, Ipp J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : R -v- RUICH [2000] WASCA 84

Criminal law and procedure - Sentencing - Drug offences - One count of selling heroin, three counts of possessing heroin with intent to sell or supply it to another - Fourth offence committed while on bail for three earlier offences - Sentence of 3 years' imprisonment inadequate - Sentence of 6 years substituted

Allen v The Queen, unreported; CCA SCt of WA; Library No 950215; 27 April 1995

Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993

Miles v The Queen (1997) 17 WAR 518

Mill v The Queen (1988) 166 CLR 59

Musarri v The Queen, unreported; CCA SCt of WA; Library No 980662; 17 November 1998

Quach v The Queen [1999] WASCA 210

R v Bellissimo (1996) 84 A Crim R 465

R v Legg, unreported; CCA SCt of WA; Library No 980305; 5 June 1998

R v Osenkowski (1982) 5 A Crim R 394

R v Peterson [1984] WAR 329

R v Weng Keong Chan (1989) 38 A Crim R 337

Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998

Ugle v The Queen, unreported; CCA SCt of WA; Library No 5868; 27 June 1985

Vassiliou v The Queen [1999] WASCA 140

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Pidgeon J. I am in agreement with those reasons and with the orders which his Honour proposes.

2 PIDGEON J: This is an appeal by the Crown against a total effective sentence of 3 years imprisonment imposed on the respondent as a result of his pleading guilty to 4 offences involving the possession and sale of heroin.

3 The respondent was born in 1968. He has a significant record in respect of both drug and traffic offences. By November 1992 he had been convicted on four occasions of possessing a smoking implement for drug use. In that year he was also convicted of possessing amphetamine. In April 1993 he received his first term of imprisonment when he was imprisoned for at least twelve months for two offences of driving under suspension and of giving a false name. There had been earlier offences of driving under suspension. On 2 December1994 he appeared in the District Court, being the first time on indictment, for possessing amphetamine and received a term of imprisonment of 6 months. The following day there was a further cumulative term of 6 months imposed for another offence of driving under suspension. On 24 July 1997 he was again convicted in the District Court of selling heroin and was placed on an intensive supervision order of 15 months. Following that he was convicted of possessing LSD, cannabis and a smoking implement, but it would appear that some of these offences occurred prior to the intensive supervision order. The pre-sentence report relating to these offences shows that he completed the intensive supervision order with only one breach for being in possession of a prohibited drug and breach action was not taken.

4 The first three offences, the subject of this appeal, occurred on 28 October 1998, four days after the intensive supervision order came to an end. These were an offence of selling heroin to another and two offences of having heroin in his possession with intent to sell or supply to another. The facts relating to these offences were that on Wednesday, 28 October 1998 at 11.15 am, police saw the respondent driving a vehicle in Northbridge. He stopped outside some flats. A women entered his vehicle and remained in it for a short time. It is now known that he sold to this person 0.1 gram of heroin for $100. He drove on but was stopped by the police officers a short time later. There was found in the vehicle 2 small plastic bags and 2 paper folds each containing heroin. The total weight of the heroin mixture was 1.639 grams. The actual heroin content of the mixture in the bags was 58 per cent and of the mixture in the folds was 50 per cent. The respondent was also found to be in possession of $1,030 which was seized and later forfeited by her Honour. The respondent was conveyed to the Claremont Police Station and a video record of interview obtained. He told the police, falsely, that he had bought $700 worth of heroin from the person who had entered his vehicle instead of telling them that he sold her heroin.

5 He was then taken to his home at Glendalough where his house was searched and there was found 5.2 grams of heroin rock hidden amongst clothing in a bedroom drawer. That heroin had a purity level of 53 per cent. There was also found at his home a number of magazine folds, a magazine with traces of white powder, a pocket knife, a foldout spoon and a set of scales. He was then taken back to the Claremont Police Station and in the next interview he admitted that he had earlier that morning sold to the person who had entered his vehicle two folds of heroin for $50 each and that there were 0.05 grams in each fold. He said that he was going to use some of the heroin found in his car and sell some of it. He said that he had bought 7 grams of heroin a few days earlier for $2,500.

6 Although it is not absolutely clear, I would assume that the first count of possession being the second count in the indictment was in respect of the 1.639 grams found in the car, and the second count of possession being the third count on the indictment was for 5.2 grams of heroin found at the house. Her Honour sentenced for the possession on the basis that the total amount of heroin in his possession on that day was 6.8 grams in addition to the amount sold.

7 The respondent, when first charged with these offences, was admitted to bail. He was committed for trial to the District Court and an indictment containing the three charges was presented on 2 March 1999. He pleaded not guilty when the indictment was put to him and he subsequently maintained that plea. At a status conference in July 1999 a date of trial was fixed for 12 November 1999. However, on 30 August 1999 he was again apprehended for being in possession of heroin on that day. He was seen by police driving in Main Street, Balcatta. The police vehicle followed him into Alexander Street and called upon him to stop. He did not stop, but accelerated away and was seen to throw parcels from his vehicle. The police were able to stop the vehicle some 50 metres further on and they removed the respondent from the driver's seat. They found on the seat a small plastic bag containing 0.18 grams of heroin. They located the parcels thrown from the vehicle and found it contained 13 small plastic bags each containing heroin mixture of a weight ranging from 0.13 grams to 0.94 grams and of a content of heroin of 50 - 51 per cent. He was found to be in possession of $585. The police also seized a mobile phone, a set of scales, packaging items and containers. These items and the money were forfeited by the sentencing Judge.

8 The respondent remained in custody and, subsequently, he indicated that he would plead guilty to all charges. This resulted in an indictment for the August offence being presented on the fast track and his appearing for sentence in the District Court on 30 November in respect of each of the indictments. The following were her Honour's reasons for imposing the total effective sentence of 3 years: (AB13)

"You have been convicted on two indictments on your own confession. On the first, on 28 October 1998 at Northbridge you sold a quantity of a prohibited drug. On the same date you had in your possession a quantity of a prohibited drug, namely heroin, with intent to sell or supply it to another, and on the same date you had in your possession a quantity of a prohibited drug, namely heroin, with intent to sell or supply it to another.

You were charged with those matters and released to bail and then on 30 August 1999 you again had in your possession a prohibited drug, namely heroin, with intent to sell or supply it to another and you have been convicted today on your own confession in relation to that. In relation to the selling heroin, it's .1 of a gram, and in relation to the heroin found in your possession, it's 6.8 grams, and the subsequent possession was 4.02 grams.

This heroin is very high strength and under normal circumstances the result of that would be that your sentence would be longer than it's going to be because when it's a higher percentage, it means that you can cut it more. However, since I have been sitting in fast-track I have been advised by another crown prosecutor that the drug squad have told him that that is current street percentage at the present time so that's the level of it.

No wonder there are so many problems because of course the last time I was sitting in fast-track the percentage used to be around 10 per cent and now it's up to 50, 51 and, I think on the last occasion, 60 per cent. It's very high but apparently it's quite common on the streets at the present time and so I take that into account. In some senses it means that this is not as bad, although it's serious, as it would normally have been regarded.

So far as the first matter is concerned, you didn't have the matter disposed of as quickly as possible. I accept what your counsel said, that you lived in hope that you would get your life into some sort of order. The tragedy of that is that if you had gone into a court diversion program at that stage, you may well have avoided gaol altogether. However, you didn't and your own scheme for your own rehabilitation failed miserably and you were then charged with another matter.

You have previous like offences and this was, as I say, committed on bail. You have been a hardworking person and you have good prospects if you can get off drugs. I have a pre-sentence report on you and I see that you are the eldest of migrant parents and it's my experience that that is the major pressure and the pressure imposed on the children, and particularly the eldest son, of migrant parents is almost unbearable and that is because you are expected to live according to - I presume this is Croatian values whilst succeeding in an Australian environment, and that's simply not possible and it's not a burden that your parents take upon themselves but it is a burden that they put upon you. It's a burden that you should reject and if you don't reject it, you are never going to get yourself organised.

I have got the pre-sentence report which says you have strong support from your girlfriend. You're hoping that a change of environment will assist and one hopes that that's so but you will always take yourself with yourself so you have got to deal with your problems. It's no good not dealing with them. You have had a terrible habit and I take that into account, but nevertheless you realise how serious this is in the circumstances.

In all the circumstances you're sentenced to 12 months on each count cumulative on each other, which is a total term of 3 years, and you are eligible for parole. Please stand down now."

9 Her Honour had dealt with only three counts and immediately realised that there was a further count with which she must deal. The respondent had left the dock and her Honour continued:

"I'm sorry. There are four counts.... The other 12 months will be concurrent. I'm very sorry to do this to this man but he is going to have to come back. We will deal with someone else and bring this man back and.....the sentence will of course be concurrent. I mean, I'm not going to add to the sentence but it has got to be done and it has got to be done in open court."

10 Her Honour arranged for the respondent to be again put up and continued:

"Mr Ruich, I'm very sorry. It's not bad news. It's not good news either. It's another - it's 12 months but it's concurrent. I didn't sentence you on one of the possession of heroin and the sentence is 12 months and that is concurrent with parole - concurrent with the sentence I have already imposed and the sentence I imposed is to commence on 30 August.....which is when you went into custody. Please stand down now."

11 It is necessary to turn to her Honour's calendar to ascertain which sentences were imposed on each of the offences. The calendar shows that there was a sentence of 12 months imprisonment imposed on the indictment setting out the last of the offences, namely the offence that occurred on 30 August 1999. In respect of the earlier indictment there was a sentence of 12 months imprisonment cumulative for selling heroin, a further sentence of 12 months imprisonment cumulative for the first count of possessing of heroin with intent and a concurrent term was imposed in respect of the second offence of possessing heroin which occurred on 28 October 1998.

12 The Crown is appealing on the following grounds:

1. She incorrectly applied, or failed to apply, the principles relating to cumulative and concurrent sentences.

(a) The learned Judge initially sentenced the Respondent in relation to only three of the four offences of which he was convicted, by imposing cumulative terms of twelve months imprisonment on each count, arriving at a term of 3 years' imprisonment in total.

(b) Having been told that the Respondent faced four counts in total, the learned Judge then imposed a concurrent term of 12 months imprisonment in relation to 'one of the possession of heroin' counts, without identifying which such count was to be the subject of that sentence.

(c) The sentences as pronounced failed to take into account that the Respondent had been in possession of quantities of heroin with intent to sell or supply on two occasions more than 10 months apart; the latter occasion being when the Respondent was on bail for the offences committed on the former occasion.

2. The sentence failed to reflect adequately the need for general deterrence, specific deterrence and the protection of the community.

3. The sentence imposed was manifestly inadequate in all of the circumstances."

13 The principles applicable to an appeal by the Crown were recently referred to by the High Court in Lowndes v The Queen [1999] HCA 29; (1999) 73 ALJR 1007 at 1014, par 38. The question for this Court is whether her Honour's order involved error of a kind warranting appellant interference with a discretionary judgment. Further principles were set out by Malcolm CJ in R v Grein [1989] WAR 178. The Chief Justice referred to the following passage from R v Tait [1979] 46 FLR 386 at 388:

"An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally Skinner v The King [1913] HCA 32; (1913) 16 CLR 336 at 339-340; R v Withers (1925) 25 SR (NSW) 382 at 394; Whittaker v The King [1928] HCA 28; (1928) 41 CLR 230 at 249; Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293).

Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across 'time-honoured concepts of criminal administration': per Barwick CJ, Peel v The Queen [1971] HCA 59; (1971) 125 CLR 447 at 452. A Crown appeal puts in jeopardy 'the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal: per Isaacs J, Whittaker v The King at 248. The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court."

14 The view I have reached in applying these principles is that the aggregate sentence imposed of three years is so low as to manifest error. The selling of heroin within the community to the extent that the respondent did is an offence of the utmost gravity where deterrence becomes a prime factor. The circumstances of this offence are not dissimilar to those considered by this Court in R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998 where a person had been arrested for selling heroin in the street in a similar manner to the respondent. In that case reference was made to the fact that the maximum penalty, recently fixed by the legislature and relating to the sale of all proscribed drugs (except cannabis) is 25 years. Weight must be given to this and to the view that both the legislature and the community take in respect of distribution of drugs of addiction and to their harmful effects. The sale of heroin on the street is a factor contributing to the significant increase in crime. For these reasons the question of deterrence becomes a prime matter for consideration and while it might not have reached the stage where favourable personal antecedents play no part, they must play a considerably lesser part.

15 It is in this area that the antecedents of the respondent, which I have set out become of significance. They do not aggravate what is a serious offence but they are such as to exclude mitigation. The respondent's previous behaviour shows a persistent defiance of the law, both in respect of drugs and in respect of traffic matters. He previously received leniency on this account and it is of concern that almost immediately after carrying out an intensive supervision order, he commenced to sell drugs. He had obtained a supply which was found both in his car and at his home. He did not stop when admitted to bail and was found in possession of a considerable number of bags and paraphernalia for distributing drugs that showed he was not doing it on an isolated basis.

16 There was before her Honour a report which identified the respondent as a potentially high risk of re-offending, a risk which is clearly related to his drug use. It referred to a history of drug abuse extending back some 14 years and noted that the indications are that this is an entrenched pattern which will require a great deal of commitment on the respondent's part if any lasting changes are to be effected. To date, that commitment has not been apparent. The only suggestion of some degree of optimism derives from the respondent's presently stable relationship with a young woman, although it should be observed that this was not sufficient to prevent his committing the present offences.

17 Her Honour, prior to passing a sentence well below the range referred to in Dao, referred to a number of factors personal to the respondent which could not be seen in mitigation in the circumstances of this case having regard to the seriousness of the offence and the previous history of the respondent. In particular, her Honour took into account the respondent's drug habit. This could not, in the circumstances of this case, be seen in mitigation of repeated drug distribution. Notice must also be taken of the fact that the need to support a habit is the reason for much of the illicit distribution of harmful drugs. I consider that the appellant has made out the grounds that the sentence failed to reflect adequately the need for both general and specific deterrence and the protection of the community. It was manifestly inadequate to the extent that it calls for the intervention of an appeal court. There is no need to consider the first ground relating to cumulative and concurrent sentences.

18 It was said in Dao that a sentence for the type of activity referred to in the earlier indictment is one of upwards of 4 years. The applicant is a source of distribution on the streets and I consider that that is the appropriate term on the first count for selling to a person from a bulk supply. I would in respect of each of the counts on the first indictment impose terms of 4 years, but make the terms concurrent. They are to commence from 30 August 1999. The second indictment would call for a similar term. I would by reason of the totality principle and by reason of the fact that the sentence is being imposed as a result of a Crown appeal order that that sentence commence when the respondent has served two years of the first sentence. It would be cumulative to that extent but then run concurrently. The result is that the total sentence is six years. There is an order for eligibility for parole in respect of each sentence. I would allow the appeal accordingly.

19 IPP J: I agree with the reasons of Pidgeon J and have nothing further to add.

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