Court of Appeal (WA)|2006-10-26|Before: Smith JA

Samuels v The State of Western Australia (No 2) [2006] WASCA 222 (26 October 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SAMUELS -v- THE STATE OF WESTERN AUSTRALIA (NO 2) [2006] WASCA 222

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Appeal - Criminal law and procedure - Appeal against sentence - Two counts of possession of prohibited drugs with intent to sell or supply - Methylamphetamine and MDMA (ecstasy) - Aggregate sentence of 6 years' imprisonment - Principle of totality - Prospects of rehabilitation - Lack of previous convictions - Delay of 3-1/2 years in proceedings pending trial on different charge - Whether sentence manifestly excessive

Attorney-General v Tichy (1982) 30 SASR 84

Cameron v The Queen [2000] WASCA 286

Colangelo v The State of Western Australia [2004] WASCA 294

Delovski v The Queen [2002] WASCA 88

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Macri v The State of Western Australia [2006] WASCA 63

Mill v The Queen (1988) 166 CLR 59

Nelis v The Queen [2000] WASCA 194

Rohan, unreported; Court of Appeal of England and Wales (Criminal Division); Register No 1000/A/72; 23 August 1972

Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170

Brayley v Malkovic [2005] WASC 136

Collins v The Queen [1975] HCA 60; (1975) 133 CLR 120

Coulter v The Queen (1988) 164 CLR 350

Darwell v The Queen (1997) 94 A Crim R 35

Gooch v The Queen [2002] NTCCA 3

Johnson v The Queen [2004] WASCA 207

Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300

Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048

R v Matovski (1989) 15 NSWLR 720

1 ROBERTS-SMITH JA: The application for leave to appeal against sentence in this appeal is the subject of a reported decision of this Court, delivered on 7 October 2005 (Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473).

2 Leave to appeal had been sought on four grounds, they being:

1. imposing an overall effective sentence which infringed the principle of totality;

2. failing to order that the two sentences be served wholly concurrently;

3. attributing little or no mitigatory weight to the delay of 3 years and 4 months between the time of charging and the time of trial in circumstances where such delay was not in any way attributable to fault on the part of the offender;

4. imposing sentences which were manifestly excessive in the circumstances.

4.1 the appellant's strong prospects of rehabilitation;

4.2 the delay in proceedings;

4.3 the appellant's excellent employment history;

4.4 the appellant's personal and family circumstances including a strong and caring relationship with his two young daughters and his mother's serious illness;

4.5 the appellant's lack of any relevant prior convictions;

4.6 the age of the appellant;

4.7 the circumstances of the offending including the financial crisis experienced by the appellant at the relevant time."

3 The Court (Steytler P, Wheeler and Roberts-Smith JJA) refused leave on grounds 2 and 3, but granted it on grounds 1 and 4 (but only in respect of 4.2, 4.5 and 4.7).

4 The appellant had been charged on an indictment dated 6 August 2002 with two offences. Count 1 was that on 11 December 2001, he had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. Count 2 was that on the same date and at the same place, he had in his possession a prohibited drug, namely MDMA (ecstasy) with intent to sell or supply it to another. Both offences were contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).

5 The appellant, having pleaded not guilty, was tried before Fenbury DCJ and a jury in the District Court at Perth between 26 and 29 April 2005. He was convicted on both counts. The trial Judge imposed a sentence of 5 years' imprisonment on count 1, backdated to 29 April 2005, and 4 years' imprisonment on count 2. He ordered the sentence on count 2 to be served partly concurrently with that on count 1, in that the latter would not commence until the appellant had served 2 years of the sentence on count 1. That produced an aggregate of 6 years' imprisonment. His Honour ordered the appellant be eligible for parole.

6 The appellant is a member of the Gypsy Jokers' motorcycle club ("Gypsy Jokers"). On 1 October 2000, another member of the Gypsy Jokers, Billy Grierson, was shot dead at Ora Banda, just north of Kalgoorlie. He and the appellant were both members of the Kalgoorlie chapter of the Gypsy Jokers. There was a belief amongst some members of the club that Grierson had been killed by Mr Don Hancock, the publican at Ora Banda, who had formerly been a high-ranking officer of the Western Australian Police Service.

7 On 1 September 2001, Hancock and a companion were murdered. They were killed by a car bomb. Police suspected members of the Gypsy Jokers. They set up a taskforce called "Operation Zircon" to investigate the killings.

8 As part of that investigation, the police taskforce officers had the appellant under surveillance. That including the placing of listening devices in his home and in his tattoo shop in Midland from which he conducted his tattooing business.

9 On the morning of 11 December 2001, police executed a search warrant under the Misuse of Drugs Act on the tattoo shop. The appellant was there at the time with two other men. In a small garden shed at the rear of the premises, in which was being stored old dusty items of furniture and office equipment, police found a small black backpack. That stood out, mostly because it was not covered in dust. Inside the backpack police found a Nokia mobile phone box and a plastic ice-cream container. The phone box was heavy, but it did not contain a phone. Inside the box, wrapped in cloth, was a handgun.

10 Inside the ice-cream container were a number of plastic bags. The first bag the police removed contained white tablets and some white powder. The powder appeared to be from some of the tablets which had been partly crushed or damaged. On later analysis the drug was identified as 22.8 grams of MDMA or ecstasy, with a purity of 23 per cent.

11 Another plastic bag removed from the ice-cream container contained a plastic bag within it, inside which were 293 grams of ecstasy tablets of about 21 per cent purity, and a paper bag. Inside the paper bag was a small clip seal bag containing a brownish coloured powder, which on analysis proved to be 23.5 grams of methylamphetamine of 34 per cent purity.

12 There was therefore a total of 315.8 grams of ecstasy and 23.5 grams of methylamphetamine.

13 Other items found in the backpack included a plastic bag inside which was another ice-cream container sealed with electrical duct tape, containing boxes of .22 calibre ammunition.

14 In his sentencing remarks, Fenbury DCJ began by noting the maximum penalty for each offence was 25 years' imprisonment or a fine of $100,000 or both. He recounted the facts as they had been established at trial. He noted the appellant had given evidence and advanced a positive defence that the drugs were not his and that his fingerprints found on the mobile phone box and on clip seal bags must have got there from his innocent handling of those items. The Judge commented that the jury had obviously rejected the appellant's explanations.

15 His Honour said the case was one in which he must take the view that there was little mitigatory material arising from the facts alone. He said the appellant was 33 years of age, married but separated and had two children. He accepted he was a caring father. He observed that the offence occurred in December 2001, nearly 31/2 years previously. He said that the delay in coming to trial had not been as a result of anything specifically done by the appellant, but was due to various matters involving the justice system including the pre-eminence of another trial which took a long time to be resolved.

16 His Honour observed that at the time of the offence the appellant had no similar previous convictions and had not been convicted of any other offences since December 2001. He said the need for rehabilitation would not seem to be a significant factor in the case. He said the fact that the appellant had not offended since December 2001 would suggest he did not need rehabilitation. The Judge said that the difficulty for the appellant was the seriousness of the offences, the type of offending, the prevalence of drugs in the community and the incalculable harm done by drugs in the community. He said there was also a need to deter others from engaging in the business of dealing in drugs. He said he thought the case was correctly categorised as one of "mid-level commerciality".

17 Finally, his Honour said that prior to the Sentencing Act amendments, he would have thought a sentence of "something like" 9 years with parole would have been appropriate. Discounting that by a third would result in a sentence of about 6 years and that was what he intended to impose.

18 His Honour then imposed the sentences I have mentioned.

19 It is quite clear (and was accepted by the parties on the appeal) that the approach taken by his Honour was to first determine a sentence he thought was proportionate to the overall criminality of the appellant manifested by the two offences and then to structure the individual sentences accordingly.

20 Although senior counsel for the appellant touched only briefly on this in his oral submissions, it was developed in the written submissions contained in the Appellant's Case.

21 The essence of the submission is that the sentencing Judge erred in failing to give proper consideration to the principle of totality by ordering partial concurrency, when he should have ordered total concurrency, because the two offences had "much in common". The "common" features are said to be that the drugs were found at the same time in the course of the same search; they were contained within a single plastic ice-cream container found in the same backpack on the single occasion and the two drugs were very close in terms of their chemical composition.

22 Senior counsel for the appellant acknowledged that the issue of totality was not raised during the course of the plea in mitigation of sentence before the primary Judge, but points out that it was raised by counsel immediately after his Honour announced the sentences he was imposing. The transcript shows what happened then (t/s 359 - 360):

"AMIDZIC, MS: Your Honour, the only query I would have: know this wasn't addressed in the submissions earlier, but it would be in relation to the partial rather than whole concurrency as between the two counts, the two counts both having arisen not only at the same time, but in the course of the same factual circumstances one could hardly imagine a situation where the sameness of the circumstances was closer in terms of the location of the items and probably the opportunity for contact to have been made - - -

FENBURY DCJ: I think, as I think I have explained, that looking at the total, it's worthy of about six and so you get there by five and partly concurrent four and the net effect is the same, but the sentence for each one is therefore appropriate.

AMIDZIC, MS: I think what I'm more addressing my comments to is the fact that your Honour is making 2 partly concurrent on 1, whereas in my submission there is basis in this case for it to be wholly concurrent because of the circumstances and then that would not violate the end result with respect to either sentence or the totality, and when one takes - - -

FENBURY DCJ: That is another way of doing it; judges sometimes do that and what I'm saying to you is that if that was the view I had of it, then one would be six and one would be concurrent, but for statistical reasons I'm obliged to impose the sentences for each offence discretely and then, keeping an eye on the total effect of it, if appropriate, order one to be partly concurrent.

AMIDZIC, MS: No. I appreciate that, your Honour. I suppose what I'm suggesting is that a view that six is appropriate globally may not be the apt way to look at it; that it may be preferable to look at the two counts in isolation, neither of which, in my submission, would in and of itself warrant a six end point.

So if on count 1, five is considered appropriate and on count 2, four is considered appropriate, one then looks at concurrency and totality separately and in this case, in my submission, there ought be whole concurrency rather than partial concurrency so that there is no need to take a global look in terms of what the result should be, but rather taking it count by count and then taking into account concurrency and totality.

FENBURY DCJ: Thank you. I hear what you say. Do you wish to say anything about that, Mr Hollingsworth?

HOLLINGSWORTH, MR: No, your Honour.

FENBURY DCJ: This issue wasn't covered previously, as you have said, but even if it had I think that my approach is the proper approach. If I'm wrong, you know what to do. I don't propose to change it as a result of what you - - -

AMIDZIC, MS: May it please you.

FENBURY DCJ: - - - have told me, Ms Amidzic. Thank you. We will now adjourn."

23 In support of this ground the appellant relies upon Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616.

24 In Johnson, the appellant was convicted of two offences. The first was attempting to obtain possession of a prohibited import (ecstasy) contrary to s 233B of the Customs Act 1901 (Cth). The second was attempting to obtain possession of a prohibited import, namely cocaine. The two offences arose out of one transaction.

25 A man ("S") had been detected and arrested entering Australia with more than 5,000 tablets of ecstasy and a quantity of cocaine. He agreed to take part in a controlled delivery. Under surveillance, and in accordance with instructions he had been given by the organiser in Indonesia, he checked into a Perth hotel and telephoned the organiser. He was told someone would come to collect the drugs and pay him for the importation. It was the appellant who arrived. The appellant was given the single package which had originally contained both drugs, but by then contained an inert substitute. He was arrested as he attempted to leave. A second co-offender who had been sitting in the appellant's sister's car outside the hotel was also arrested. He had on him a substantial amount of cash.

26 The appellant entered a "fast-track" plea of guilty. The facts as related by the sentencing Judge included that the appellant, then 22 years old, single and unemployed, was in debt on a bank loan for the purchase of a motor vehicle which had been damaged in an accident. At a rave party he was offered $2000 to collect a package. He agreed to do so because it would have helped with his loan. The appellant knew the package was to contain prohibited drugs, but did not know what the drugs were, nor the quantity of them. The sentencing Judge found that nonetheless, the appellant was prepared to take whatever they were and facilitate their release into the community for $2000.

27 The sentencing Judge said the appropriate sentence on count 1 was imprisonment for 10 years and on count 2 was imprisonment for 5 years to be served cumulatively. He reduced the sentence imposed upon count 2 on account of the "totality principle". He deducted 31/2 years for the appellant's "fast-track" plea of guilty, so reducing the sentence to 111/2 years. His Honour ordered that the term of imprisonment on count 1 be 8 years, and on count 2, 31/2 years to be served cumulatively. He imposed a single minimum term of 51/2 years in respect of the total of the head sentences.

28 The first submission advanced in Johnson (supra), pertinently to the instant case, was that in structuring the sentences the way he did, the sentencing Judge acted contrary to the principles stated in the joint judgment of McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610, 623 at [40]. It was submitted that the approach there articulated was inconsistent with what had been said by the High Court in Mill v The Queen (1988) 166 CLR 59. The point was explained in Johnson by Gummow, Callinan and Heydon JJ as follows (at [18] - [20]):

"[18] The next ground argued was that the 'totality principle', as part of the common law unaffected by the Act, could and should have been, but was not applied here. The appellant submitted that the principle has been expressed in different ways from time to time, and that there was an inconsistency between Mill v The Queen (1988) 166 CLR 59 and Pearce v R (1998) 194 CLR 610. In Mill at 63, Wilson, Deane, Dawson, Toohey and Gaudron JJ adopted a statement from Thomas, Principles of Sentencing (2nd ed, Heinemann, London, 1979, pp 56-7 (footnotes omitted)):

'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". The principle has been stated many times in various forms: "when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong["]; "when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.'

[19] Their Honours added (1988) 166 CLR 59 at 63:

'Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.'

[20] The inconsistency was said to arise between the possibility contemplated in the second last sentence of the passage quoted, of the lowering of each sentence and ordering then that an aggregation of the lowered sentence be served, and the statement in the joint judgment in Pearce quoted by Malcolm CJ (Johnson v The Queen [2002] WASCA 102; (2002) 26 WAR 336 at 344 [23]), that a sentencing judge must fix an appropriate sentence for each offence before considering questions of cumulation and concurrence."

29 On this, Gleeson CJ quoted with approval, a passage from the judgment of Wells J in Attorney-General v Tichy (1982) 30 SASR 84, 92 - 93, which his Honour commenced with the observation that it is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing Judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. His Honour went on to say that an offender should be sentenced not simply and indiscriminately for every act that can be singled out and made the subject of a conviction, but for what, viewing the circumstances broadly and reasonably, could be characterised as his criminal conduct.

30 Gleeson CJ observed that s 19 of the Crimes Act 1914 (Cth) allows for sentences that are partly cumulative and partly concurrent and that Mill had recognised that in a suitable case, a sentencing Judge may respond to considerations of the kind discussed by Wells J by lowering individual sentences rather than by making sentences wholly or partly concurrent.

31 When they dealt with this point in their joint judgment, Gummow, Callinan and Heydon JJ said (at [26]):

"[26] The first matter to be noticed in this regard is that the joint judgment in Pearce recognises the currency of Mill by referring to the principle of totality which it reiterates (Pearce (1998) 194 CLR 610 at 624 [45] per McHugh, Hayne and Callinan JJ). The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected. The trial judge here did not offend any of the principles stated in Mill or Pearce. His only error may have been to fail to state starting and ending dates, but this was neither to apply a uniquely Western Australian principle, nor otherwise to make an appealable error. What his Honour intended was obvious enough and did not fail in substance to give effect to the Act."

32 It follows from the above that his Honour was entitled to take the approach he did here, of considering the overall criminality involved in the two offences and fixing an aggregate sentence commensurate with that, notwithstanding that the preferred approach is to first fix the individual sentences and then adjust the aggregate by orders for cumulation or concurrency (Mill, supra at 63). His Honour took the course he did here to accommodate the principle of totality. Nonetheless, the difficulty so created is one which was recognised in Pearce (supra) (at [47] - [48]), namely that it may distort sentencing practices in relation to particular offences. The contention here, however, is not that the individual sentences are manifestly excessive, but rather that they should have been made wholly concurrent, and that the failure to do so resulted in an aggregate sentence which infringed the principle of totality because it punished the appellant twice for the same act or acts. That was the argument which succeeded in Johnson (supra).

33 As the majority pointed out in that case, the submission was based upon the following passage from the joint judgment in Pearce (supra, at 623):

"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts."

34 In that regard their Honours noted "obvious errors" in the judgment of the Court of Criminal Appeal. The most significant were that the Court had said the appellant took possession of two separate parcels of two separate drugs and there were two separate offences with no common element. As to this, allowing the appeal, their Honours said ([33]):

"[33] It is true that the appellant pleaded guilty to two offences, but they had much in common: one inducement, one payment for performance, one occasion, one package and one receipt of it by the appellant. This commonality did require that careful regard be had, in deciding the appellant's appeal, to the totality principle. The error in relation to the number of packages and the failure to refer to the numerous common elements strongly suggests that this did not occur."

35 Kirby J agreed with the joint judgment in identifying the errors in setting out accurately the facts relevant to the sentences proper to the appellant's pleas of guilty; an error in omitting to correct the primary Judge's sentence for failing to take into account the common factual elements of the two offences; and an error in failing to observe and apply the principle governing common elements in offences as stated by the High Court in Pearce.

36 The common factors in Johnson were that there was one inducement, there was one payment for performance, the offences were committed on a single occasion of handing over, there was one package which contained both drugs and there was one receipt of the package by the appellant.

37 All of those features had to do with the appellant's own conduct and role. There was one occasion on which he was induced to commit the offences. He agreed to do so for one payment. He agreed to receive one package, which he did, on one occasion, to pass on.

38 In the present case, the appellant says the common features were that the drugs were found at the same time in the course of the same search; they were contained in a single ice-cream container found in the same backpack on that single occasion; and that the two drugs were very close in chemical composition.

39 The first of those says no more about the appellant's conduct and role than that when police conducted the search, he was found in possession of two distinct drugs.

40 The fact that they were found together (in the same container in the same backpack) says nothing about when or how he received them, nor why, nor what he intended to do with them. Although in the same backpack they were packaged separately. They were in different form - the tablets could only be sold as such and required no further processing. The methylamphetamine was of a purity which suggested further cutting before sale on the streets.

41 The fact that the drugs are said to be "very close in chemical composition" adds nothing, even if it be so. The fact is, they were different drugs.

42 In short, it is my opinion that the circumstances of this case are entirely distinguishable from those in Johnson. In terms of the acts constituting the commission of the offences, the most that can be said here is that the drugs were found together. That aside, the offences here lack any relevant degree of commonality of the kind identified in Johnson.

43 It may be that other circumstances of those offences might require some degree of accommodation of sentence on account of the principle of totality, but that fact alone would not necessarily. In the present case, there are no other circumstances which would require such an accommodation, except to the extent that the aggregate sentence should not be disproportionate to the overall criminality demonstrated by them. That was the principle which his Honour applied.

44 The first particular relied upon in support of this ground is that the fact of the delay of 31/2 years between the time the appellant was charged with these offences and the date he was sentenced for them, was a factor which ought to have been given mitigating effect by the sentencing Judge and his failure to give it so contributed to the aggregate sentence being manifestly excessive.

45 The sentencing Judge certainly had the factor of the delay in mind. He expressly adverted to it. He said (AB 101):

"This offence occurred in December 2001, nearly three and a half years ago. The delay in coming to trial has been not as a result of anything specifically done by you, but because of various matters involving the justice system, but also the pre-eminence of another trial which took a long time to be resolved."

46 The acknowledgement that the delay had nothing to do with the appellant suggests that his Honour thought it was a factor to be taken into account in the appellant's favour in determining the appropriate sentence. Given his specific reference to it, I do not think it can properly be said his Honour cannot have given it any weight in that regard. Nor do I consider that in the circumstances of this case, his Honour had to go further.

47 Mr Grace QC relies upon Duncan (1983) 9 A Crim R 354 in which the Court of Criminal Appeal of Western Australia said (at 357) that:

"The very fact of the long delay in bringing the matter to Court which led the applicant to have this matter hanging over his head for nearly four years is rightly prayed in aid on his behalf."

48 But that case was very different from the present. There, the applicant (then aged 19) went into sequestration in July 1975 when the small business he was running failed. Early in 1978 he again became involved in a business enterprise. By the end of that year that too had failed. He was again declared bankrupt in early 1979. He was told that his conduct had been in breach of the Bankruptcy Act 1966 (Cth) and he would be prosecuted. But it was not until October 1982 that he was interviewed by the Australian Federal Police. Then it was not until February 1983 that he was indicted. No explanation was given for the delay. The Crown conceded the delay had not been due to any action by the applicant. He was sentenced to 18 months' imprisonment (concurrent) in respect of 14 counts (to which he had pleaded guilty) and ordered to serve a minimum of 9 months' imprisonment. He appealed on the ground he ought not to have been sentenced to imprisonment because of the position in which he had been placed by the delay in taking proceedings against him.

49 The applicant had married in late 1978. With his wife's money a deposit was placed on a house in which they then lived. A bridging loan was obtained. As a result of the applicant's imprisonment, the loan repayments had fallen behind. The house was about to be sold, with the result that the applicant's wife would lose the deposit she had originally paid.

50 During the period of almost four years between his second bankruptcy and arrest, the applicant had stabilised his life. He had obtained two very responsible and steady jobs and had complied with all the requirements of the Official Trustee in Bankruptcy.

51 On appeal, the Court (Wallace, Brinsden and Rowland JJ) held that the sentencing Judge had erred in concluding that a custodial sentence had to be imposed. They held it was clear it did not. It was apparent that since early 1979 the applicant had striven to establish himself in a settled and regular mode of life. He and his wife were leading a reasonably frugal and quiet existence. He was shattered by his present predicament. The Court referred to Bell (1981) 5 A Crim R 347. They said (at 356):

"The case is authority for the proposition that where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation."

52 Their Honours concluded that the circumstances of that case were exceptional. The delay had not been the fault of the applicant, it was not as if his whereabouts were unknown or he had left the State; and in the meantime he had set about re-establishing himself and incurred financial liabilities from which an innocent party would suffer were the applicant not released to enable disaster to be averted. It was in that context the Court then made the statement relied upon by the appellant here.

53 The Court said there were a number of other examples in which appellate courts have reduced or altered sentences where an appellant has been the victim of long delay in the bringing of proceedings against him. They referred to Lavender (1972) 56 Cr App Rep 355 and the cases referred to in Thomas, "Principles of Sentencing" (2nd ed, 1979), pages 220 - 221, for example Rohan, unreported; Court of Appeal of England and Wales (Criminal Division); Register No 1000/A/72; 23 August 1972.

54 The passage from Duncan relied upon here by the appellant is in fact a direct quotation from Lavender. There is no indication in that case what the cause of the four year delay was. The only other comment the Court made about it was that during the long period he was awaiting trial the appellant obtained fresh employment and worked seriously and perfectly honestly in it. It is apparent that there were other more substantial features of the case which excited the sympathy of the Court to reduce the sentences of imprisonment there imposed. The cases referred to in Thomas, "Principles of Sentencing" are there included as illustrating the practice of mitigating a sentence to alleviate a legitimate grievance which the offender suffers as a result of the way the case against him has been conducted or to remove the appearance of injustice which has arisen as a result of an incident in the course of proceedings. The three cases mentioned are cited in support of the first limb. The first is Lavender, which I have already discussed. The author proffers that as an example of a case justifying some mitigation of sentence because the long delay between discovery of the offence and commencement of the prosecution resulted in the offender suffering a prolonged period of suspense and anxiety. The others are noted as follows:

"Rohan 23.8.72, 1000/A/72 (three years for drug offences reduced and suspended, as appellant had 'completely transformed himself' during the 'appalling delay' in the case's coming to trial); Doyle 12.10.71, 2202/C/71 (eighteen months for assault and other offences reduced to twelve, as 'through no fault of the appellant, the matter has been kept hanging over his head for a very long time')."

55 All we were told about the delay in the present case is that the appellant had been charged with another more serious offence as a result of Operation Zircon and that trial took precedence over this. The appellant was ultimately acquitted of that offence, after trial in August 2004.

56 Then it is put that the appellant had not committed any further offences since he was released to bail on these charges, he was not in need of rehabilitation and he had had the proceedings "hanging over him" from November 2001 to April 2005.

57 Very little was made of this point before the sentencing Judge. Mr Dunn QC, who there appeared for the appellant, having referred to some minor offences committed earlier, submitted the appellant came before his Honour really as a first offender at 35 years of age. He then said (AB 90):

"... and that's then where the significance comes into play of the effluxion of time since the charge."

58 A little later, he submitted that the appellant's prospects of rehabilitation were good, based on his age, the lack of relevant prior convictions and the fact he had not been charged with any offences since December 2001. He then recounted the appellant's antecedents in some detail.

59 I have already mentioned what his Honour said about the factor of delay. Relevantly, he otherwise commented only that the appellant had no previous convictions and that (AB 101):

"The need for rehabilitation would not seem to be a significant factor in this case. Your absence of offending would suggest that we don't really need to consider the need for that for you."

60 The present case is distinguishable from Duncan. First, there the delay had primarily been between the commission of the offences and the charging of the offender. Here the appellant was charged immediately. The delay occurred between that point and trial. Here there was an explanation for the delay. It was because the appellant was being proceeded against for a more serious offence. Those proceedings were not concluded until August 2004. The delay between August 2004 and his trial on the present offences in April 2005 is not explained, but is by no means inordinate. Nothing about the delay in this case has been suggested as giving rise to a legitimate grievance as a result of the way the case against the appellant was conducted. It may be accepted that the knowledge these proceedings were pending over that time was a circumstance which caused the appellant suspense and anxiety. However, given the verdicts, he could have avoided that by indicating he would plead guilty. They could obviously have been disposed of much earlier in that way. Of course, he was not obliged to do so and he could not be penalised for not having done so, but the fact that he chose to exercise that right does not afford him then a good claim to a reduction in sentence by reason of the matter having been outstanding as long as it was. In Duncan, the applicant, not having been charged, did not have that option.

61 Much more significantly though, the appellant was not shown to have taken positive, extensive and productive steps to rehabilitate himself (Duncan; Rohan) or to make praiseworthy changes to his life which the sentence of imprisonment would put at nought (Duncan). There was nothing particularly unusual, much less exceptional, about the delay and the consequences of it to the appellant in this case which would have called for any special reduction in sentence of that account.

62 Senior Counsel for the appellant primarily based his submission on this ground on a comparison with a number of other cases commencing with Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107, which he contended demonstrated that in the circumstances of this case the "starting point" of 6 years for the methylamphetamine offence was well outside the range of an appropriate sentence. The reference here to 6 years as a "starting point" was inapt, because what his Honour expressly sought to achieve was an aggregate sentence of 6 years, that being the equivalent to the sentence he would have thought appropriate prior to 31 August 2003 which was when the amendments to the Sentencing Act 1995 (WA) came into operation. The term his Honour would have fixed prior to 31 August 2003 was 9 years. The amendments required him to impose a term which was one-third less than that, which is how he arrived at the 6 years.

63 The sentence of 5 years' imprisonment on count 1 was equivalent to a sentence of 7 years 6 months prior to 31 August 2003; the sentence of 4 years' imprisonment was equivalent to a pre-amendment sentence of 6 years.

64 Comparisons between cases are of limited utility, because the circumstances of both the offences and the offenders can vary so widely. The comparison is made even more difficult, if not meaningless, where the individual sentences being sought to be compared were a part of a sentencing exercise involving a combination of sentences for multiple offences committed by an individual offender. The question is really whether a general range of sentences for like offences can be discerned such that a given sentence can be seen to fall within or outside it. Of course, a sentence which falls outside such a range will not necessarily be manifestly excessive (or inadequate) on that account, but would need to be justified.

65 In Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, the High Court held (Gaudron, Gummow, Kirby and Hayne JJ) that the selection of the weight of a prohibited drug as the chief factor in fixing the sentence was a "fundamental departure from sentencing principles" because it failed to take account of the fact that there are many conflicting and contradictory elements bearing upon sentence and did not address the question of proportionality. But that case is not authority for the proposition that the weight and/or purity of a drug can never be a significant sentencing factor. It will depend upon the circumstances of the individual case and what else the Court may know about the offender and the circumstances of the offence.

66 As Wheeler JA pointed out in Macri v The State of Western Australia [2006] WASCA 63 at [19], where an offender has denied any connection with the drug concerned, and where the evidence at trial does not allow for any sensible appraisal of the offender's knowledge of the quantity and purity of the drug, nor of his role in the distribution, a sentencing Judge is left essentially only with the bare facts of quantity and purity upon which to evaluate the offender's criminality. Here the Judge characterised the appellant's involvement as "mid-level commerciality". Senior Counsel acknowledged there could be no challenge to that finding.

67 The sentencing Judge was correct to regard methylamphetamine as being in the same general category of seriousness as heroin and cocaine, where deterrence is the primary consideration in sentencing and personal circumstances and antecedents carry little weight (Bellissimo (1996) 84 A Crim R 464). There was, of course, no reduction for a plea of guilty.

68 The relevant sentencing principles and authorities were discussed in detail by McLure J (as her Honour then was) in Tulloh (supra) at [46] - [50]. There a sentence of 15 years' imprisonment was upheld. The 28-year-old offender was convicted after trial of possessing 805 grams of high grade (51 - 68 per cent purity) methylamphetamine. The sentencing Judge found he was not a user and not just a courier and was involved purely for commercial gain.

69 I do not propose to set out again here, the sentencing comparisons set out by McLure J in Tulloh (supra). A few brief references will suffice. It is enough to observe here that although the sentences are at the severe end, individually and in the aggregate they seem to me to fall within the general range of sentences for offences of this kind.

70 In Cameron v The Queen [2000] WASCA 286 a starting point of 10 years was thought appropriate where the appellant had pleaded guilty to possession of 1.1 kilograms of methylamphetamine. That was a significantly greater quantity than here, but had a purity of only 3 to 4 per cent. The appellant was a courier.

71 In Delovski v The Queen [2002] WASCA 88, a pre-transitional sentence of 9 years was upheld for a single offence of selling 524 grams of heroin with a purity of 25 per cent. The offender was in the upper end of the commercial hierarchy and had no criminal record.

72 In Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55 the offender's plea of guilty reduced a "starting point" sentence of 8 years to one of 6 years 8 months, for a single offence of possessing 53.9 grams of methylamphetamine of 41 per cent purity.

73 Other cases support the view that the present sentences (viewed either individually or as an aggregate) are not outside the general range. In Colangelo v The State of Western Australia [2004] WASCA 294 the offender was sentenced to a total of 6 years' imprisonment (post-transition) for three offences - the first was possession of 53.32 grams of methylamphetamine at 9 - 48 per cent purity (4 years); the second was possession of 74 tablets of MDMA (2 years concurrent); the third was possession of 26.3 grams of methylamphetamine at 37 per cent purity (2 years cumulative). The 23-year-old offender had pleaded guilty and dealt to feed his own habit.

74 Nelis v The Queen [2000] WASCA 194 was a case in which the offender was sentenced to an aggregate of 7 years' imprisonment for three counts of dealing a total of 109.79 grams of amphetamine ranging from 2.5 to 21 per cent purity. There had been an early plea of guilty and there was psychiatric evidence of attention deficit disorder and probably underlying bipolar disorder, amongst other factors.

75 As I have already noted, in cases involving dealing in drugs at the upper end of seriousness (which these are), particularly as a commercial activity, considerations of previous good character or lack of prior convictions and other matters personal to the offender must ordinarily carry little weight. The primary sentencing consideration must be deterrence. That is the view the sentencing Judge took here.

76 The remaining feature to which it is said the Judge here ought to have given more mitigatory weight is described as "the circumstances of the offending including the financial crisis experienced by the appellant at the relevant time". In fact, because the appellant's defence was a complete denial of any connection with the drugs, there was virtually nothing before his Honour about the circumstances of the offending. As to the appellant's financial circumstances at the time, all that was said about those was that he was made bankrupt in the year 2000 as a result of the failure of a transport firm he had sought to run on borrowed money. He had finance on two trucks and the outgoings were more than the incomings. He was bankrupted owing something in the order of $30,000. He remained bankrupt until 2003. There was therefore a period commencing towards the end of 2000 to 2003 where the appellant had a variety of financial problems which resolved themselves into that period of bankruptcy. Senior Counsel, before his Honour, described the appellant as "... very much treading water".

77 There was no submission made that the appellant was driven to deal in drugs by desperate financial circumstances. Even had there been, it is difficult to see how that could be mitigatory - certainly not sufficiently so to indicate that in light of it the sentences imposed (or their aggregate) were manifestly excessive. I would not uphold this ground.

79 McLURE JA: I have had the advantage of reading the reasons for judgment of Roberts-Smith JA. I agree the appeal should be dismissed generally for the reasons he gives.

Samuels v The State of Western Australia

At a glance

Court

Decision date

Before

Catchwords

Source

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Judgment (130 paragraphs)

Samuels v The State of Western Australia (No 2) [2006] WASCA 222 (26 October 2006)

Parties

Legislation Cited (1)

Cases Cited (13)