Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Appellant convicted after trial of manslaughter and sentenced to 9 years' imprisonment - Appellant previously convicted of drugs and firearms offences and received a total effective sentence of 8 years' imprisonment - Appellant ordered to serve 5 years of the drugs and firearms sentence before commencing to serve the manslaughter sentence - Overall total effective sentence of 14 years' imprisonment - Totality principle - Leave to appeal refused

Firearms Act 1973 (WA), s 19(1)(c), s 19(1ab)(a)(i), s 19(1ad)

Misuse of Drugs Act 1981 (WA), s 6(1)(a)

McNamara v The State of Western Australia [2013] WASCA 63

Pitassi v The State of Western Australia [2014] WASCA 231

Stagno v The State of Western Australia [2013] WASCA 166

The State of Western Australia v Camus [2014] WASCA 74

The State of Western Australia v Stagno [2014] WASCSR 166

1 BUSS JA: The appellant has applied for leave to appeal against sentence.

3 The count alleged that on 25 September 2011, at Nollamara, the appellant and Danielle Kovac murdered Mite Naumovski, contrary to s 279 of the Criminal Code (WA) (the Code).

4 On 4 March 2014, after a joint trial in the Supreme Court before Corboy J (the trial judge) and a jury, each of the appellant and Ms Kovac was found not guilty of murder, but guilty of unlawful killing contrary to s 280 of the Code.

5 On 11 August 2014, the trial judge sentenced the appellant to 9 years' imprisonment (the manslaughter sentence). A parole eligibility order was made.

6 Ms Kovac, with whom the appellant was in a relationship at the time of the killing, was sentenced to 5 years 4 months' imprisonment. Her circumstances are not comparable with those of the appellant.

7 When the trial judge imposed the manslaughter sentence, the appellant was already serving a total effective sentence of 8 years' imprisonment (the drugs and firearms sentence), with parole eligibility, for the following offences:

(a) two counts of possessing methylamphetamine, with intent to sell or supply it to another;

(b) one count of possessing an unlicensed firearm while also in possession of a prohibited drug; and

(c) one count of possessing ammunition without a licence.

8 The drugs and firearms sentence was imposed on 25 March 2012. The sentence was backdated to 9 March 2012. The appellant appealed against the severity of the drugs and firearms sentence. His appeal was dismissed. See Stagno v The State of Western Australia [2013] WASCA 166 (Stagno No 1).

9 The trial judge ordered that the appellant serve 5 years of the drugs and firearms sentence before commencing to serve the manslaughter sentence. The order resulted in an overall total effective sentence of 14 years' imprisonment for the manslaughter and the drugs and firearms offences. He will become eligible to be considered for release on parole on 9 March 2024.

10 The proposed ground of appeal alleges that the trial judge's order that the appellant serve 5 years of the drugs and firearms sentence before commencing to serve the manslaughter sentence resulted in an overall total effective sentence which infringed the first limb of the totality principle.

The facts and circumstances of the manslaughter offence

11 The trial judge set out in detail the facts and circumstances on the basis of which he sentenced the appellant and Ms Kovac. See The State of Western Australia v Stagno [2014] WASCSR 166 [9] - [51].

12 His Honour found that the jury's verdicts in relation to the appellant and Ms Kovac required him to sentence the appellant on the basis that he caused Mr Naumovski's death unlawfully, but without the intent required to prove murder [16] - [19].

13 The facts and circumstances found by the trial judge, for the purposes of sentencing, may be summarised as follows:

(a) The appellant met Mr Naumovski in 2009 and, on occasions, bought drugs from him.

(b) In mid-2009 a dispute arose about a debt owed by the appellant to Mr Naumovski. The dispute erupted again in 2010 and in mid-September 2011.

(c) On 17 September 2011, Mr Naumovski sent threatening text messages to the appellant. One of them asserted that Ms Kovac wanted to be in a relationship with him rather than the appellant.

(d) In the early hours of 25 September 2011, Ms Kovac sent text messages to the appellant. They suggested that she was with Mr Naumovski. The appellant became agitated. A little later that morning, the appellant arranged to be driven to the house where Mr Naumovski resided with his parents. The appellant fired a number of bullets at a car in the driveway.

(e) During 25 September 2011, Mr Naumovski was seen to be very angry and agitated in relation to the appellant. Mr Naumovski was armed with a taser gun and a small axe or tomahawk.

(f) On 25 September 2011, Ms Kovac sent two text messages to Mr Naumovski. The second, which was sent at 1.04 pm, invited Mr Naumovski to come to the house in Nollamara where the appellant and Ms Kovac were living.

(g) The trial judge found that the appellant was at home when Ms Kovac sent this message and that her intent was to lure Mr Naumovski to the house so that the appellant could assault him.

(h) Mr Naumovski went to the Nollamara house. He was armed with the taser gun and the small axe or tomahawk. Ms Kovac let him in.

(i) The appellant fired a number of bullets. Six of them hit Mr Naumovski. Four struck the front of his lower torso and two entered his back. Other bullets fired by the appellant struck a wall and a mirror. The shots into the wall and the mirror were fired before the shots which hit the deceased.

(j) Mr Naumovski's body was left in the bathroom for some time. It was then wrapped in plastic, shoved into a car and left in the back of the vehicle when it was parked and abandoned at a motel. Another person (neither the appellant nor Ms Kovac) wrapped the body in plastic. He was given the deceased's motorcycle as a reward for his assistance. The appellant and Ms Kovac assisted in moving the body from the bathroom to the car. A woman (not Ms Kovac) drove the car to the motel.

(k) His Honour found that the jury's decision to convict Ms Kovac required the conclusion that the appellant was waiting for Mr Naumovski to arrive at the Nollamara house and that the appellant intended to harm him. However, the jury's verdict of not guilty in relation to the count of murder required a finding that the appellant did not intend either to kill the deceased or to inflict a bodily injury of such a nature as to endanger or be likely to endanger his life.

Aggravating factors in relation to the manslaughter offence

14 The trial judge said there were a number of aggravating factors in relation to the manslaughter offence. In particular, his Honour held that:

(a) the 'callous disregard' with which Mr Naumovski's body was treated after the killing was the 'most obvious' aggravating factor [68]; and

(b) the appellant's action in firing shots at Mr Naumovski's car earlier on the day in question, the appellant's possession of a firearm and his action in firing several shots at the deceased, two of them striking his back as he sought to escape, were aggravating factors [69].

15 The aggravating factors, apart from the 'callous disregard' with which Mr Naumovski's body was treated, must be viewed in the context that the appellant had to be sentenced on the basis that he did not intend either to kill the deceased or to inflict a bodily injury of such a nature as to endanger or be likely to endanger his life.

Mitigating factors and personal circumstances and antecedents in relation to the manslaughter offence

16 The appellant was born on 25 March 1983. He was aged 28 when he committed the manslaughter offence. The appellant left school at the age of 15 and completed an apprenticeship as a mechanic. He has a strong employment history and was working at the time of the manslaughter offence, despite his apparently heavy use of prohibited drugs.

17 The appellant commenced using methylamphetamine in 2006 after a relationship ended. He has also used cannabis. The appellant ceased using prohibited drugs for a year in 2009, but relapsed in 2010. He has participated in some drug counselling while in custody. A pre-sentence report indicated that he had made progress in understanding the connection between his substance abuse and his offending.

18 The appellant has a prior criminal record. His offending commenced in 2001. Prior to the commission of the drugs and firearms offences, his convictions were mainly for traffic offences.

19 The appellant made an offer, before the commencement of the trial, to plead guilty to manslaughter. The State did not accept the offer. The trial judge found that the appellant's case at trial was run consistently with the offer. His Honour acknowledged that the appellant was entitled to some mitigation for the offer [74] - [75].

20 His Honour also accepted that the appellant had made some concessions at the trial which assisted the jury. The appellant was 'now remorseful' for his offending. However, his expressions of remorse had to be tempered by his conduct after Mr Naumovski was killed. The appellant attempted to mislead the police during their investigations [75] - [76].

21 The trial judge took into account written references which spoke well of the appellant and were tendered on his behalf at the sentencing hearing [76]. However, as his Honour noted, the appellant was leading two lifestyles when he killed Mr Naumovski. One involved drugs. The other involved work and positive pursuits [50].

22 His Honour concluded that the appellant had reasonable prospects for rehabilitation if he could remain 'drug-free' on his release from prison [77].

23 The trial judge said he would take into account a period of about 5 months which the appellant had spent in custody on remand for the manslaughter offence, although it could not in the circumstances result in a backdating of the sentence [77].

The facts and circumstances of the drugs and firearms offences

24 The four counts in relation to the drugs and firearms offences, as pleaded in the indictment, were these:

Count 1: On 8 January 2009, the appellant possessed 130.06 g of methylamphetamine with a purity of 7 to 8%, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).

Count 2: On 8 January 2009, he possessed an unlicensed firearm while also in possession of a prohibited drug, contrary to s 19(1)(c) read with s 19(1ab)(a)(i) of the Firearms Act 1973 (WA).

Count 3: On 8 January 2009, he possessed 48 rounds of 0.40 calibre ammunition without a licence, contrary to s 19(1)(c) of the Firearms Act.

Count 4: On 25 February 2011, he possessed 15.07 g of methylamphetamine, of which 1.67 g was 1% pure and 13.4 g was 78% pure, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act.

25 The appellant pleaded guilty to count 3. As to count 2, he pleaded guilty to being in possession of an unlicensed firearm, but not guilty to the circumstance of aggravation, namely being in possession of a prohibited drug. He pleaded not guilty to counts 1 and 4. After a trial before McCann DCJ and a jury, he was convicted of counts 1, 2 and 4 as charged.

26 On 25 May 2012, the appellant was sentenced as follows:

27 McCann DCJ ordered that the sentences on counts 1, 2 and 4 be served cumulatively. The total effective sentence was therefore 8 years' imprisonment. A parole eligibility order was made and the total effective sentence was backdated to 9 March 2012.

28 In Stagno No 1, Mazza JA (Buss & Newnes JJA agreeing) recounted the facts and circumstances of the drugs and firearms offences:

On 8 January 2009, the Holden Commodore that the appellant was driving was stopped and searched by police on Manning Road, Wilson. The police officers found approximately 130 g of methylamphetamine, with a purity of between 7 and 8%, distributed between a number of plastic bags hidden in the car (count 1). His Honour described the drugs as being carefully sorted and packaged in various quantities, ready for sale on a wholesale basis to street level dealers (ts 1051).

The police also found, hidden under the driver's seat, a Glock handgun with its serial number erased. The weapon was loaded with 13 rounds of ammunition in the magazine (count 2).

In addition to the drugs and the firearm, the appellant was found to be carrying $2,380 in cash in his wallet.

The appellant's home was then searched. There, investigators found tick lists which showed 'prior [drug] dealing on credit in very large sums of money' (ts 1052). During this search, the police discovered the ammunition the subject of count 3.

The appellant's mobile telephone was seized and his text messages were read. Many of these messages plainly related to drug dealing. His Honour said that they showed that the appellant had 'close business links with known drug dealers' (ts 1052).

Count 4 was committed more than 2 years after counts 1 to 3, while the appellant was on bail for those charges.

On 25 February 2011, the police stopped and searched the appellant's work vehicle. The police found two bags containing methylamphetamine in the vehicle's freezer compartment. One bag contained 1.67 g of methylamphetamine with a purity of only 1%. His Honour said that he was minded to think that this was a contaminated cutting agent. The other bag contained 13.4 g of methylamphetamine with a very high purity of 78%. His Honour said this quantity had 'more or less come uncut from manufacture' and described it as being 'carefully wrapped and tied' (ts 1053) [12] - [18].

29 The appellant was aged 29 when he was sentenced for the drugs and firearms offences. McCann DCJ noted that the appellant came from an excellent family and was a highly skilled mechanic. However, he had what his Honour described as 'a shocking driving record' which demonstrated that he had a 'wilful disregard for public safety and [the] law'. Nevertheless, apart from a conviction for possession of cannabis with intent to sell or supply when he was aged 18, the appellant had no prior convictions for drug offences. McCann DCJ found that the appellant had been using prohibited drugs since some time before 2008. The appellant was not remorseful and lacked insight into his offending. His Honour found that the appellant was at a high risk of reoffending in a similar manner.

30 In Stagno No 1, Mazza JA recorded relevant aspects of McCann DCJ's sentencing remarks, as follows:

In respect of count 1, although his Honour accepted that at the time of the offence the appellant was a drug user, he found that the quantities and extent of the appellant's dealing far exceeded anything he could possibly need for his personal use. His Honour described the appellant's drug operation as 'wholly commercial' (ts 1056). He said that the appellant was the 'principal in a mid-level wholesale drug distribution network'. He further said that the appellant was 'motivated by greed and characterised by a willing association with the worst aspects of the criminal underworld' (ts 1052).

With respect to the handgun, his Honour accepted that the appellant did not own it. He found that the weapon had been put in the car by the appellant some hours before he was arrested on count 1. His Honour said that the weapon was 'part of [the appellant's] drug dealing operation' and that the appellant intended to use it, if required, for his own protection or to threaten others in the course of his drug dealing (ts 1052 and 1053).

His Honour differentiated between the appellant's roles in counts 1 and 4. While in count 1 his Honour considered the appellant to be a principal in his own drug dealing business, in respect of count 4 he described the appellant as 'a courier and bagman' for others (ts 1052 and 1053). Nevertheless, his Honour regarded the offending in count 4 as serious. The learned sentencing judge calculated that 13.4 g of 78% pure methylamphetamine would be enough for '500 very strong deals and 1,000 smallish deals, reasonably weak deals, by street level standards of the day' (ts 1054) [21] - [23].

31 McCann DCJ took into account, as an aggravating factor, the appellant's commission of count 4 while he was on bail for counts 1, 2 and 3. His Honour said there was no mitigation in relation to count 4.

32 In Stagno No 1, Mazza JA said, in the course of explaining why the appeal must be dismissed:

There can be no doubt that the appellant's overall offending in this case was very serious. In respect of count 1, the appellant was engaged, at the time, in the business of wholesale drug distribution for profit. He was found in possession of a substantial quantity of methylamphetamine of street purity. The firearm that he possessed, count 2, although not belonging to the appellant, had plainly been illegally obtained and was loaded. The erasure of the serial number meant that its provenance could not be ascertained. His Honour found that the appellant had the weapon for his protection or to threaten others. The use of firearms by drug dealers introduces a potential for violence and requires particular deterrence. It was appropriate to accumulate the individual sentences for counts 1 and 2.

I have already described the circumstances and seriousness of count 4.

The personal circumstances of the appellant were not favourable. He was not remorseful and he has a high risk of reoffending. Personal and general deterrence were important considerations in this case.

The learned sentencing judge was correct to impose a cumulative penalty with respect to count 4: the offence was committed more than 2 years after counts 1, 2 and 3, and while the appellant was on bail for those offences [46] - [49].

33 Counsel for the appellant submitted that, although the manslaughter sentence was not in itself excessive, the combination of a heavy sentence for that offence with an order that the sentence be served 'mostly cumulatively on' a heavy sentence for the drugs and firearms offences resulted in an overall total effective sentence which infringed the first limb of the totality principle.

The merits of the proposed ground of appeal

34 At the material time, the maximum penalty for manslaughter, contrary to s 280 of the Code, was 20 years' imprisonment.

(a) the maximum penalty for possessing methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act, has been 25 years' imprisonment or a fine of $100,000 or both;

(b) the maximum penalty for possessing an unlicensed firearm, while also in possession of a prohibited drug, contrary to s 19(1)(c) and s 19(1ab)(a)(i) of the Firearms Act, has been 14 years' imprisonment; and

(c) the maximum penalty for possessing ammunition without a licence, contrary to s 19(1)(c) and s 19(1ad) of the Firearms Act, has been 5 years' imprisonment.

36 McCann DCJ observed that the circumstance of aggravation pleaded in count 2 overlapped with the elements of the offence in count 1. His Honour sentenced the appellant for count 2 as if he had been convicted 'merely' of possession of an unlicensed firearm, which carries a maximum penalty of 5 years' imprisonment (s 19(1ad) of the Firearms Act), to ensure there was no aspect of double punishment in relation to count 1, on the one hand, and the circumstance of aggravation pleaded in count 2, on the other. That approach by his Honour was, in the circumstances, appropriate. Also, his Honour, in sentencing for count 1, did not take into account the appellant's possession of the firearm the subject of count 2. That approach was also, in the circumstances, appropriate.

37 The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

38 The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

39 A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

40 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

41 As to the manslaughter offence, I have examined a number of cases with at least some features comparable to the appellant's offending. See, for example, McNamara v The State of Western Australia [2013] WASCA 63 and the cases there cited. I have also reviewed my reasons (Mazza JA agreeing) in The State of Western Australia v Camus [2014] WASCA 74 in relation to sentencing for manslaughter.

42 As to the drugs and firearms offences, I have examined again the reasons of Mazza JA in Stagno No 1 and the cases there cited. See also the more recent decision in Pitassi v The State of Western Australia [2014] WASCA 231.

43 It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.

44 In the present case, the appellant's overall offending was extremely serious.

45 There was some mitigation. In particular, as to the trial in the Supreme Court, the appellant had offered to plead guilty to manslaughter, the trial judge found that the appellant was 'now remorseful' and his Honour concluded that the appellant had reasonable prospects for rehabilitation, in view of his work and other positive pursuits, if he could remain 'drug-free' on his release from prison. There was very limited mitigation in relation to the drugs and firearms offences.

46 The appellant was not youthful or inexperienced for sentencing purposes. He was not of prior good character. His personal circumstances and antecedents were generally unfavourable.

47 In my opinion, the overall total effective sentence of 14 years' imprisonment, with eligibility for parole, was not outside the range available to the trial judge on a proper exercise of the sentencing discretion. I am satisfied that the overall total effective sentence did not infringe the first limb of the totality principle. The term of 14 years was required to mark the primary sentencing factors of appropriate punishment and personal and general deterrence. It was necessary to accumulate the manslaughter sentence with a substantial part of the drugs and firearms sentence in order to reflect the extremely serious nature of the appellant's overall offending and to deter him and others. The overall total effective sentence bears a proper relationship to the criminality involved in all of the offences committed by the appellant, viewed together, and after having regard to all relevant facts and circumstances and all relevant sentencing considerations, including the seriousness of the offending, the pattern of sentencing in reasonably comparable cases, the aggravating factors and the mitigating features.

48 The ground of appeal has no reasonable prospect of success.

49 I would refuse leave to appeal. The appeal must therefore be dismissed.