R v Votano [2000] WASCA 144

La Rosa v The Queen, unreported; CCA SCt of WA; Library No 960628; 31 October 1996

Miles v The Queen (1997) 17 WAR 518

Quach v The Queen [1999] WASCA 210

R v Bellissimo (1996) 84 A Crim R 465

R v Bond (1990) 48 A Crim R 1

R v Darwell (1997) 94 A Crim R 35

R v Grein [1989] WAR 178

R v Heferen [1999] WASCA 81; (1999) 106 A Crim R 89

R v Peterson [1984] WAR 329

R v Tait (1971) 46 FLR 386

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

2 PIDGEON J: I agree with the reasons of Wallwork J. I would allow the appeal for those reasons and substitute the sentence proposed.

3 WALLWORK J: This is a Crown appeal against two sentences of imprisonment of 3 years' each, which were imposed upon the respondent in the District Court at Perth on 26 November 1999.

4 The respondent had pleaded guilty to couriering two quantities of methylamphetamine from Sydney to Perth by air on 28 April 1999. Both quantities were transported on the same occasion and were contained in two packages wrapped in masking tape inside the respondent's underwear. One package contained 164 gms of light brown powder, which was found on analysis to be methylamphetamine of 55 per cent purity. The other package contained 988 methylamphetamine tablets weighing 237.9 gms, with a purity of 6.8 per cent. The respondent had flown under the name of J Petrie, which was not his name.

5 In the plea in mitigation, counsel for the respondent advised the learned sentencing Judge that the respondent had been unemployed after having been dismissed from his employment at Qantas. He had also been on workers' compensation for some time for a work related back injury.

6 It was said in mitigation that prior to his injury at work, the respondent had been earning a considerable sum in wages and had been supporting his family. After he had been dismissed, he had been subjected to great financial pressure. At the time he was asked to transport the drugs to Perth, he was facing eviction from his rented accommodation. It was said that he had also been in a state of depression due to his financial problems and the related problems facing his family; that he had succumbed to temptation when he had been offered the sum of $2,000 to carry the drugs to Perth.

7 The learned Judge was told that prior to his injury at Qantas, the respondent had an excellent work history. He had also been active in community affairs connected with both cricket and rugby league. He had volunteered countless times in relation to rugby activities. He had also supported his partner's two children whose father did not contribute to their support. He supported his own two children from his marriage which had broken up some time previously.

8 The respondent had earlier been employed for approximately 19 years with the City of Sydney Council in a labouring type job. Due to "out-sourcing" he had lost that position. He had then gained employment with Qantas as an aircraft cleaner and later as a baggage handler. He had been earning $1,200 a week until, in February 1995 he had suffered a back injury from which he had not recovered.

9 The relevant offences were committed on 28 April 1999. The respondent had faced two tenancy tribunal hearing applications in connection with his inability to pay his rent. One was in July 1998 and the second in April 1999. The respondent was supporting his partner and also a child at the university. He had pleaded guilty on the fast-track system as soon as the nature of the drugs was clarified.

10 A medical report was submitted to the learned trial Judge which stated that for the previous four years the respondent had been suffering serious back pain due to a work related accident "needing surgery". Importantly, the certificate said that the respondent had been depressed "since then". The doctor said that in his opinion the respondent's crime was quite out of character with the respondent's usual behaviour.

11 Concerning the relevant offences, the learned Judge was told that the respondent had been approached at a hotel and asked if he wanted to earn some money. The respondent had asked what he had to do. He was told that he had to deliver a package to Perth and that he would receive $2,000. The respondent agreed to transport the drugs. He was told to come to Perth and book into the Burswood Casino. He was given the money for the air ticket. It was said on his behalf that he had succumbed to the offer. He had had no money and was about to be evicted from the family home. He accepted that what he had done was wrong and that he was facing a term of imprisonment.

12 It was submitted by the respondent's counsel that the respondent had been exploited in the same way that people exploit other people's drug addiction. He had had no relevant previous convictions. His references indicated that he had been an outstanding member of the community. He had contributed to the community and had been held in high esteem.

13 When sentencing the respondent, the learned Judge said amongst other things, that by bringing the drug into Western Australia the respondent had not only been involved in dealing with the drug, but had increased the supply of it in Western Australia. Her Honour described the references which had been submitted to her as "absolutely glowing". She described the respondent's work history as a "wonderful work history" and said that the respondent had come to a point in his life where he had been very vulnerable. He was 45 years of age but matters personal to him could not be allowed to overcome the seriousness of what he had done. Her Honour noted that the Court of Criminal Appeal had said that these offences were at the same level as heroin because of the damage the drug was doing in the community and the crime it was causing in the community. The offences were too serious to be dealt with by any punishment but imprisonment. Her Honour said that she was taking into account the fast-track plea of guilty and the respondent's outstanding record. Her Honour sentenced the respondent to 3 years' imprisonment for each offence and ordered that the sentences be served concurrently, with eligibility for parole.

14 On appeal it was argued for the Crown that the offences were very serious. The 164 gms of powder with a purity of 55 per cent was a high purity. There were also 988 tablets ready for distribution on the street. The amount of drug involved was approximately 400 gms of methylamphetamine, with approximately half of that in powder. It was submitted that the respondent had been a vital part of a commercial drug operation and that he had enabled the transportation of a large amount of methylamphetamine from Sydney to Perth. The respondent had been aware of the nature of the drug. It was of considerable quality. He was not a drug addict. The offences had been committed purely for financial benefit.

15 It was submitted for the Crown that the decided cases had laid it down that sentences for drug offences of the relevant type must reflect the need for general deterrence and demonstrate the condemnation of the community for such offences. These kinds of offences cause much harm in the community, particularly to young people who were exposed to the temptation to become involved with drugs. It was submitted that the prevalence and seriousness of criminal drug use made deterrence and protection of the community the principle consideration for offences of that type. That methylamphetamine was now regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs and was to be equated with heroin and cocaine. It was submitted that the learned sentencing Judge had given too much weight to personal matters and insufficient weight to the principles of deterrence. Also, that the respondent's good character had enabled him to fulfil the function of a courier and because of that his prior good character should not be given the same weight in mitigation as would normally be the case in a different type of offence.

16 Reliance was placed upon the reasons of Pidgeon J in Miller v The Queen [1999] WASCA 66, where the applicant had been used as a courier to deliver 454 gms of methylamphetamine of a purity of 6 per cent to an undercover officer in exchange for $56,000. The learned sentencing Judge in that case had described the applicant as a "foot soldier" and a courier and as not being the prime mover behind the sale. On appeal, Pidgeon J said that as the offender in that case had assisted to move the drug, he could be distinguished from a person selling smaller quantities on the street. His Honour referred to the Canadian case of R v Devlin & Marentette (1971) 3 Canadian Criminal Cases 2nd series 20 where Gale CJ in the Ontario Court of Appeal had referred to the fact that persons of good character are procured by syndicates to carry out tasks of that nature and that it would be in error to take good character into account, as this would be using, as a reason to impose a lenient sentence, the very quality which the offender had to possess in order to commit the offence. Pidgeon J said in the case of Miller, that the learned sentencing Judge had acted consistently with the authorities and proper sentencing principles in not giving great weight to personal factors.

17 In the present case a submission for the Crown was that the respondent had consciously and deliberately, knowing full well what harm he would do, participated in the illicit drug trade for commercial gain by acting as a courier, and in those circumstances, personal circumstances and good antecedents should be given much less mitigatory force than in other cases.

18 It was said for the Crown that in this case there had been a reasonably substantial quantity of methylamphetamine which had been moved by the respondent from one State to another. Personal matters should assume a lesser importance. The learned trial Judge had erred in giving them so much weight. It was not disputed that the offender was entitled to an appropriate discount for his early plea of guilty which had saved the public the expense of a trial and also indicated some remorse.

19 It was not submitted for the Crown that the learned sentencing Judge had mistaken any of the facts, but it was said that the aggregate sentence was so inadequate as to manifest error.

20 In answer to those submissions, counsel for the respondent repeated the essential matters which had been put to the learned trial Judge which have been set out earlier in these reasons. Amongst other submissions, counsel made the point that the respondent was to receive a relatively small amount of money from the offences. He had not been so much motivated by greed but had rather acted from financial desperation due to a work related injury which had resulted in his unemployment and depression. It was submitted that he should not be treated as being in the category of people who were simply distributing drugs for profit. He was a person of prior good character who had, in extreme circumstances, been particularly vulnerable. There had also been a degree of naivety which had been exemplified by the fact that he was carrying a piece of paper with his false name written on it when he was apprehended. The sentencing Judge had not been in error in making an allowance for his straitened circumstances and prior good character.

21 It was said that the respondent had not exploited his good character by being a courier but rather that his good character had been exploited by persons further up the ladder. The respondent was also entitled to the recognition of the savings to the State due to his early plea of guilty and his remorse. It was submitted that an immediate sentence of 3 years' imprisonment was a severe punishment and was a sufficient deterrent. This had been a "one-off" offence.

22 It has been said many times by the courts that the distribution of drugs such as amphetamines is doing tremendous harm in this community. Drug addiction is leading to crimes such as armed robberies and home invasions as people who are addicted can obtain money in that manner to pay for drugs such as this respondent was helping to distribute.

23 In my opinion the learned trial Judge did give too much weight to the respondent's personal circumstances in the sentencing process. Error is therefore demonstrated.

24 The present offences were extremely serious, having regard to the quantities of the drug involved and, in particular, having regard to the purity of the package containing the powder. The respondent was an essential part of a commercial drug operation which was well organised. He deliberately chose to run the risk of punishment in the hope of obtaining money. The increasing prevalence of the use of amphetamines has led to a firming up of sentences. His conviction for the offence was inevitable once the drugs had been discovered in the course of a body search by detectives at Perth Airport, so that the credit to which he was entitled under the fast track system must be towards the bottom end of the scale.

25 Having in mind that this is a Crown appeal, and that the respondent is in jeopardy for a second time - as to which see R v Allpass (1993) 72 A Crim R 561 and R v Clarke [1996] VICSC 30; [1996] 2 VR 520, which were cited with approval by the High Court in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, at 671 - I would increase to 5 years the sentence for the offence of the respondent having in his possession, with intent to sell or supply it, 164 grams of methylamphetamine powder of 55 per cent purity. I would then impose an additional sentence of 2 years' imprisonment, to be served cumulatively upon the first sentence, for the respondent's offence of having in his possession, with intent to sell or supply it, the 989 methylamphetamine tablets of 6.8 per cent purity weighing 237.9 grams. This makes an aggregate sentence of 7 years' imprisonment. The orders for eligibility for parole should remain.