SABAU -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 3 (15 January 2010)

Court of Appeal (WA)|2010-01-15|Before: Lure P

1 McLURE P: The appellant seeks leave to appeal against the sentence of 7 years' imprisonment imposed for his conviction on one count of possession of heroin with intent to sell or supply.

2 The facts are as follows. On 19 April 2007 the appellant, his son and brother were seen driving into the Yellagonga National Park in Kingsley. All three entered the National Park on foot and a short time later returned to the car and drove away. Police officers searched the area and located two containers, one with a blue lid and the other with a black lid. The area was kept under surveillance. At approximately 6.20 pm the following day, the appellant returned to the National Park. He opened one of the containers and removed a package containing approximately 28 g of heroin. When the appellant was apprehended by police seconds later, he threw the package into the reeds.

3 The container with the blue lid contained 12 one‑ounce packages of heroin (363 g in total) wrapped in brown plastic packing tape and a similarly wrapped package containing 10.1 g of cocaine. The container with the black lid contained 17 packages of heroin (450 g in total).

4 The appellant was charged with two counts of possession of prohibited drugs with intent to sell or supply, count 1 relating to the heroin and count 2 the cocaine. The appellant pleaded guilty to both counts in June 2008, some 13 months after being charged. The State contended the appellant was in possession of 841 g of heroin, being the total amount in the two containers together with the 28 g in the package thrown away. The appellant claimed he was only in possession of approximately 196 g of heroin and 10.1 g of cocaine. That necessitated a trial on the issue of the quantity of heroin that was in his possession.

5 After the trial of the issue, the sentencing judge found that the appellant was in possession of 391 g of heroin, being the 363 g in the container with the blue lid together with the 28 g of heroin he threw away: The State of Western Australia v Sabau [2009] WADC 38 [67].

6 The heroin had a purity of between 12% and 15%. The cocaine was 63% pure. The sentencing judge imposed a sentence of 7 years' imprisonment on count 1 and 1 year's imprisonment on count 2. He ordered the sentences to be served concurrently, resulting in a total effective sentence of 7 years' imprisonment.

7 The appellant relies on one ground of appeal which is in the following terms:

The learned sentencing judge erred in the imposition of sentence in respect of count 1, by failing to have regard to the minimum custodial periods of sentences in accordance with the established sentencing range and thereby imposed a manifestly excessive sentence upon the appellant.

8 The implication in the ground as framed is that the sentencing judge had made an express error in failing to have regard to minimum custodial periods of sentences. Such a claim is without foundation and was abandoned at the hearing of the appeal. The only ground of appeal is a claim that the sentence on count 1 is manifestly excessive. The appellant claims the sentence is too long.

9 The appellant has the task of persuading the court that the sentence of 7 years is unreasonable or plainly unjust: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6]. In making that assessment, an appellate court has regard to the maximum sentence for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender.

10 The appellant was aged 29 at the time of the offences. He was born in Romania and was brought to Australia by his father at the age of 16. He is described by the sentencing judge as having a good work record, starting as a bricklayer and later running his own telephone franchise business. The appellant is married and has three children, from two previous relationships.

11 The appellant has a prior record which includes assault occasioning bodily harm, stealing, hindering police and possessing a controlled weapon. He has no prior convictions for drug offences.

12 The sentencing judge found that of the 391 g of heroin, approximately 168 g was owned by the appellant for distribution by him and the balance belonged to his brother whose drug trade he was facilitating. The sentencing judge accepted that the cocaine was for the appellant's use and the supply by him to a group of associates.

13 The sentencing judge also found that the appellant was aware of the type of drugs in his possession and that it was a substantial amount. He continued:

The nature and level of your participation is that you were prepared to be a courier, you are prepared to facilitate your brother in hiding the drug, and you were prepared to directly deal in the drug. Your participation does, in my opinion, fall towards the high end of the scale.

14 The sentencing judge had regard to the references supplied on behalf of the appellant together with a letter written by the appellant acknowledging the wrongfulness of his conduct and the deleterious effect of prohibited drugs in the community.

15 The primary focus of the submissions advanced on behalf of the appellant was on sentences customarily imposed for drug trafficking. The appellant provided a comparative sentencing table. Our attention was specifically directed to Quach v The Queen [1999] WASCA 210; Watson v The Queen [2000] WASCA 119; R v Munro [2000] WASCA 285; Aconi v The Queen [2001] WASCA 211; R v Hafner [2002] WASCA 211; Delovski v The Queen [2002] WASCA 88; Kezkiropoulos v The Queen [2002] WASCA 352; Kirby v The Queen [2003] WASCA 164; Stapleton v The Queen [2004] WASCA 130; Nguyen v The State of Western Australia [2009] WASCA 8; Bahn v The State of Western Australia [2008] WASCA 40; Benter v The State of Western Australia [2005] WASCA 245; Urbano v The State of Western Australia [2006] WASCA 147 and The State of Western Australia v Toothill [2007] WASCA 236.

16 Other relevant cases include Ziino v The State of Western Australia [2007] WASCA 222; (2007) 177 A Crim R 297; Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49; Cooper v The Queen [2001] WASCA 379; Cohen v The State of Western Australia [No 2] [2007] WASCA 279; (2007) 180 A Crim R 348; Hobby v The State of Western Australia [2009] WASCA 108; and Cameron v The Queen [2002] WASCA 81. From time to time this court provides details of the relevant sentencing factors in the cases relied on as a guide to the standards of sentencing customarily imposed for drug trafficking. This was done most recently in The State of Western Australia v Atherton [2009] WASCA 148. It is not something that needs to be repeated every time a claim of manifest excess is made.

17 A review of the aforementioned cases shows that most concern offenders sentenced for multiple drug offences, in which event the individual sentences may reflect reductions for totality considerations. It is for this reason that comparisons are ordinarily made between the aggregate quantity of drugs and the total effective sentence. That does not serve the appellant's interests in this case because the sentences were made wholly concurrent. Thus there is an artificiality in comparing sentences for individual counts as we are required to do in this case.

18 Sentences customarily imposed in comparable cases provide a reference point against which a judgment can be made as to whether the sentence in question is broadly in line with sentences customarily imposed in this jurisdiction, bearing in mind the significant variations in relevant sentencing factors. The answer to that question in this case is in the affirmative even without taking into account that some of the individual sentences imposed in comparable cases may be at the lower end of the sentencing range because of totality considerations.

19 The sentencing judge was correct to characterise the seriousness of the circumstances of the appellant's offending as falling towards the high end of the scale. The sentence imposed on count 1 is at the high end but is not outside the range of a sound sentencing discretion and thus is not manifestly excessive. I would refuse leave to appeal.

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