Court of Appeal (WA)|2000-02-28|Before: Mr J, Anderson J, Kennedy J, Wallwork J

"S" v The Queen [2000] WASCA 34 (28 February 2000)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : "S" -v- THE QUEEN [2000] WASCA 34

Criminal law and procedure - Sentencing - Appeal - Two counts of possession of heroin with intent to sell or supply it to another, one count of possession of cocaine with intent to sell or supply it to another - Early plea of guilty - Assistance to police leading to the conviction of another for an unrelated crime - Sentence of 6 years' imprisonment - Inadequate recognition of mitigating circumstances - Effective sentence reduced to 5 years

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

Eyre v The Queen, unreported; CCA SCt of WA; Library No 930149; 18 March 1993

Gasteau v The Queen [1999] WASCA 153

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

Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227

Miller v The Queen [1999] WASCA 66

Quach v The Queen [1999] WASCA 210

R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998

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

Verschuren v The Queen (1996) 17 WAR 467

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Anderson J. For the reasons which his Honour gives, I agree that leave to appeal should be granted and the appeal allowed to the extent which his Honour proposes.

2 WALLWORK J: I agree with the reasons for judgment of Anderson J. There is nothing I could usefully add to those reasons.

3 ANDERSON J: This is an application for an extension of time within which to appeal against sentence and for leave to appeal against sentence. The applicant was presented in the District Court on 31 May last on an indictment containing three counts, two of possessing heroin with intent to sell or supply and one of possessing cocaine with intent to sell or supply. He was sentenced to an aggregate of 6 years' imprisonment in the form of 6 years on each charge, to be served concurrently.

4 The applicant had been apprehended in November 1998, whilst driving a motor vehicle. Some 58 grams of heroin was found in the motor vehicle and during a later search of his house another 22 grams, approximately, of heroin and some 18.29 grams of cocaine was located behind a loose brick in a cavity wall. The heroin and the cocaine were of a high level of purity, well above the street level.

5 The applicant's explanation for being in possession of these drugs was that he had lent $10,000 to another person and had been given the drugs to hold as a security for repayment of that loan. The explanation was not contested, although there is reason to be highly sceptical of it. It would seem unlikely that, if the drugs were being held as a form of security, they would be divided up, with some being carried in the applicant's car and the rest secreted behind a loose brick in a cavity wall at the applicant's residence. The other person involved is said to have fled overseas and has not been apprehended.

6 Although there was some initial reluctance on the part of the applicant to frankly confess his guilt, it is not in dispute that the applicant pleaded guilty at the first available opportunity, to all charges on the indictment. It is also accepted by the Crown that the applicant has rendered valuable assistance to the police by identifying at least one other person involved in the drug trade and that, as a direct result of the applicant's co-operation with the police, that person was apprehended, charged and convicted of possession of some 180 grams of heroin. Neither is it disputed that this level of co-operation involved some risk to the applicant's own safety.

7 The applicant does not have an unblemished record, although it is accepted that his antecedents do not contain any conviction for drug-related offences, except one minor cannabis conviction. The applicant was nearly 53 at the time of sentencing, married with a young child. It is not clear how long he has lived in Western Australia, but his criminal record in this State begins in 1985. There are 22 stealing convictions spread over several years and a very large number of fraud convictions, which were all recorded on the one date in the Court of Petty Sessions at Perth in May 1997. For those latter offences, he was sentenced to a total of 12 months' imprisonment. None of the stealing offences resulted in imprisonment. There are several other offences, including one of unlawful possession, some traffic offences, a breach of a community-based order and, in March 1999, the drug offence already mentioned, which was the offence of possession of cannabis, for which he was fined $300. As the learned sentencing Judge pointed out, his criminal record did not entitle him to be regarded as "normally an honest person".

8 The main argument in the application was that the learned sentencing Judge, in sentencing to an aggregate of 6 years, failed to give a sufficient discount for the prompt plea of guilty and, additionally, for the applicant's assistance to police.

9 His Honour did not stipulate the amount of the discount which he gave in respect to either of those two matters. It is not submitted that he was obliged to do so, but we have to now see what might have been an appropriate sentence if those two matters of mitigation had not been present.

10 It is generally accepted that the quantity and purity of the amount of heroin and cocaine in question is an important sentencing factor. Also of importance is the role played by the applicant in the total enterprise. In drug cases, different degrees of criminal responsibility attach to the various people involved in the chain of supply. Naturally, prime movers or principals in an importation of drugs will be regarded as very much more culpable than a small-time dealer or courier at the end of the supply chain.

11 Before this Court, the claim made on the appellant's behalf that he was to one side of the supply chain, his role being in the nature of a mortgagee of the drugs, was repeated. When we pointed out that, upon those facts, the offence as charged had not been committed we were informed that the applicant wished to reconsider his plea of guilty. However, the court has now been informed that the applicant does not wish to challenge his conviction. Whilst he does not retract the explanation which was given to the sentencing court as to how he initially came into possession of the drugs, the applicant has admitted that, at the time of his arrest, the circumstances had changed somewhat. He had received a communication from the person who had deposited the drugs with him, asking him to deliver some of the drugs to another person. Further, he knew that it was very likely that a similar request would be made of him in respect to the balance of the drugs. He admits that he was actually in the course of delivering part of the drugs to the third person at the time that he was apprehended.

12 These being the circumstances, I am not persuaded that his role was very much different from that of a courier. He must have known that the person with whom he was dealing was a drug dealer and that the drugs which were in his possession would be put into distribution in due course. In agreeing to receive and conceal the drugs and keep them safe under an arrangement that he would eventually dispose of them as directed by the dealer, the applicant consciously and deliberately participated in the business of the supply of prohibited drugs which are at the very top end of the scale of seriousness. I see no reason why he should not be sentenced on the same basis as any courier found in possession of this quantity of this type of drug of this purity.

13 Since the decision of this Court, differently constituted, in R v Cottrell (1989) 42 A Crim R 31, it has been accepted that prison sentences of between 7 and 10 years represent the range of punishment for possession of around about 100 grams of heroin/cocaine of high purity - anything above about 55 per cent. In this case there were 81 grams of heroin and 18 grams of cocaine. Most of the heroin and all of the cocaine was at a level of purity above 70 per cent - up to 75 per cent. In my opinion, a starting-point of about 8 years' imprisonment was appropriate in the aggregate.

14 The applicant pleaded guilty at the first opportunity and that had to be rewarded by some discount. It is in the public interest that accused persons be encouraged to plead guilty at the first opportunity so as to save the State the cost and effort involved in maintaining defended prosecutions. The range of discount is very much a discretionary matter, but it is generally recognised that some discount will always be appropriate, even where the case against the accused is strong and a conviction almost inevitable. That was, I think, this case. The applicant was caught red-handed. A quantity of the drugs was found concealed in his vehicle and the rest was found concealed at his home. Still, his early plea of guilty had to be rewarded to some extent.

15 It is also recognised that an allowance will usually be made for assistance to the authorities. This is because it is clearly in the public interest that offenders should be encouraged to supply information to the police which will lead to the apprehension and conviction of other offenders. As the Court of Appeal in New South Wales pointed out in R v Cartwright (1989) 17 NSWLR 243 per Hunt and Badgery-Parker JJ at 252 - 253:

"It is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders in relation to whom they have given such information.

In order to ensure that such encouragement is given, the appropriate reward for providing assistance should be granted whatever the offender's motive may have been in giving it, be it genuine remorse (or contrition) or simply self-interest. What is to be encouraged is a full and frank co-operation on the part of the offender, whatever be his motive."

16 In this case, the learned sentencing Judge had before him a "letter of recognition" from law enforcement authorities expressly recognising that the applicant's co-operation with the police and information provided by him led to the arrest of another person for dealing in heroin and that this assistance had been provided "at some personal risk".

17 In my opinion, however, his Honour was entitled to look at the nature of the assistance and, in this case, it seems to have been simply the provision to the authorities of a name and the arranging of a meeting between the person of that name and an undercover police officer, posing as a potential "customer". The arrest and convictions arose out of subsequent dealings between the person in question and the police officer. Whilst that level of co-operation and assistance is certainly deserving of recognition in the sentencing process and is to be rewarded by a sentence reduction, the reduction could not be substantial.

18 The question is whether, given an appropriate starting-point of about 8 years' imprisonment, a sentence of 6 years properly recognised the plea of guilty and the level of co-operation and assistance which was provided.

19 There is another matter that was brought to our attention by counsel for the applicant, Mr Sutherland. The person to whom the police had been led by the information and assistance provided by the applicant was convicted of selling 34.4 grams of heroin, between 35 per cent and 38 per cent pure and possessing with intent to sell a further 56.2 grams of heroin of 79 per cent pure and 89.4 grams of heroin of 38 per cent pure. That is a total of 180 grams of heroin between 35 per cent and 79 per cent pure, some of which was actually sold to the undercover policeman. That person certainly was a dealer. The aggregate sentence imposed on him in the District Court was 6 years' imprisonment. So they got the same aggregate sentence, whilst, on any objective appraisal of the circumstances, the degree of criminality in the case involving the other person was substantially higher than in the applicant's case; and, although both pleaded guilty, the applicant had assisted the police to apprehend the dealer and the dealer had provided no such assistance.

20 Although Mr Sutherland did not attempt to put forward a co-offender disparity argument (because the two were not co-offenders), he did submit that the principle of consistency in sentencing had been offended in the two cases.

21 It is a matter which tends to confirm that the sentences imposed by his Honour do not quite meet the justice of the case. Given that a starting-point of 8 years is appropriate in respect of these particular offences of possession, I think there should have been a discount of at least 18 months, or about 20 per cent, for the plea of guilty and a further 18 months in recognition of co-operation and assistance leading to the arrest and conviction of the other person.

22 In my opinion, his Honour was correct to take a very serious view of the possession of this quantity of hard drugs of this purity. However, the early plea of guilty and the assistance and co-operation mentioned have not been sufficiently rewarded in the aggregate sentence which was imposed. It is important that they be, and that they be seen to be, sufficiently rewarded. For this reason alone I would reduce the aggregate sentence by 1 year.

23 Although it seems a little artificial when, in truth, an aggregate sentence is being fixed, the principle in Pearce v The Queen (1998) 194 CLR 610 at 624 can be accommodated by imposing a sentence of 5 years in respect of count 1 (58 grams of heroin of 78 per cent pure), 3 years in respect of count 2 (22 grams of heroin up to 79 per cent pure) and 2½ years in respect of count 3 (18.29 grams of cocaine of 74 per cent pure). I would, therefore, set aside the sentences imposed by his Honour and substitute sentences of 5, 3 and 2 ½ years and order that these sentences be served concurrently with each other. I would not interfere with his Honour's order that the applicant be made eligible for parole.

"S" v The Queen [2000] WASCA 34

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Judgment (41 paragraphs)

"S" v The Queen [2000] WASCA 34 (28 February 2000)

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Cases Cited (6)