Court of Appeal (WA)|2004-08-11|Before: McLure JJ, Murray J, Miller J

Tulloh v The Queen [2004] WASCA 169 (11 August 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : TULLOH -v- THE QUEEN [2004] WASCA 169

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentencing - Possession with intent to sell or supply of 805 grams of high grade methylamphetamine - Offender pleaded not guilty - Sentence of 15 years' imprisonment - Whether excessive

Aconi v The Queen [2001] WASCA 211

Allen v The Queen, unreported; CCA SCt of WA; Library No 950215; 27 April 1995

Cameron v The Queen [2000] WASCA 286

Delovski v The Queen [2002] WASCA 88

Grakalic v The Queen [2002] WASCA 139

Kezkiropoulos v The Queen [2002] WASCA 352

Kirby v The Queen [2003] WASCA 164

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Marker v The Queen [2002] WASCA 282

Quach v The Queen [1999] WASCA 210

R v Bellissimo (1996) 84 A Crim R 465

R v Hafner [2002] WASCA 211

Sinagra-Brisca v The Queen [2004] WASCA 68

Stapleton v The Queen [2004] WASCA 130

1 MURRAY J: I have had the advantage of reading in draft the judgments published by Miller and McLure JJ. I agree entirely with them and have nothing to add. Leave to appeal should be refused.

2 MILLER J: The applicant was charged on indictment in the District Court at Perth with a co-offender that on 25 August 1999 at Rivervale he had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.

3 The applicant pleaded not guilty to the charge and was tried before Healy DCJ and a jury between 25 November and 11 December 2002. He was convicted by the jury of the offence. On 13 December 2002 Healy DCJ sentenced the applicant to imprisonment for 15 years with eligibility for parole.

4 The applicant seeks leave to appeal against the sentence on the ground that it was manifestly excessive in all the circumstances. Two particulars are given:

(1) The learned sentencing Judge placed undue weight upon the quantity and purity of the methylamphetamine.

(2) The learned sentencing Judge departed from the range of sentences customarily imposed for offences of this nature.

5 The learned sentencing Judge made a number of findings of fact which are not in issue. They revealed that the offence occurred on 25 August 1999 at a motel in Rivervale, where the applicant had booked a room for an overnight stay. He had arrived at about 6pm in the evening with an alleged co-offender. The two men entered room 175 on the fourth floor of the motel complex.

6 Shortly before 8pm five uniformed police officers executed a search warrant by forcing entry into the room. They had to break down the door to get in. They were therefore unable to gain any element of surprise. When they entered the room the applicant was observed coming from behind curtains at the end of the room. Constables ran to the spot and found the sliding window had been pulled open and the flyscreen pushed outwards.

7 Officers then went out of the room to the area below the window to room 175 and there found two packages wrapped in plastic in a garden

bed. They were later found to contain a total of 805 grams of high grade methylamphetamine.

8 Police inspection of the room found various items associated with drug trafficking. These included electronic scales, clipseal bags and a box of glucodin. The applicant's fingerprints were found on the box of glucodin and on several other items taken from the room. In short, there was sufficient evidence to link the applicant to possession of the drug and the evidence established that upon the police arrival at the room, the applicant had been responsible for throwing the drug from the window.

9 The two packages were analysed at the Chemistry Centre. They contained 423.8 grams and 381.7 grams respectively. The purity was 51 and 68 per cent respectively.

10 The learned sentencing Judge made mention of the fact that the trial was hard fought by the applicant. It was the applicant's defence that the police had placed the incriminating items in his room and he had no knowledge of the methylamphetamine which was found below in the garden.

11 The learned sentencing Judge considered the applicant's background. He was 28 years of age, had served in the Australian Army and had a partner, due to have a child within a few months. He did not have a bad record of convictions, there being only minor convictions for cultivation of cannabis and possession of an offensive weapon.

12 However, the learned sentencing Judge pointed out (rightly) that this Court has repeatedly said in relation to offences of drug dealing that when people are found guilty of being in possession of a large quantity of high grade methylamphetamine, the personal circumstances of the offender carry little weight in the sentencing process. Clear authority for this proposition is to be found in R v Bellissimo (1996) 84 A Crim R 465. Rowland J (at 469) made it clear that matters personal to an offender will often in cases of this nature "play a secondary role in the sentencing process".

13 The learned sentencing Judge correctly recognised that deterrence was a major consideration in the sentencing process in this case. His Honour pointed out that persons prepared to possess large quantities of high-grade methylamphetamine must realise that they will face lengthy terms of imprisonment if apprehended - particularly so if their involvement is solely for commercial gain. The learned sentencing Judge concluded that it was not suggested that the applicant was a user and the circumstances would indicate that he was not just a courier.

14 It is apparent from Bellissimo and other decisions of this Court that deterrence is a key factor in the sentencing process in offences of this nature. In Bellissimo Anderson J put it (at 471) in the following way:

"The major sentencing considerations for offences of trafficking in dangerous drugs of addiction such as amphetamines, cocaine and heroin are general and personal deterrence, the major objective being to stop people doing it. It is quite obvious to anyone concerned with criminal justice administration that trafficking in amphetamines is rife in this State and part of its tragedy is that very young people in the community are being exposed to it. This has caused wide-spread community concern. The sentences that have been imposed in the past do not seem to have worked as a deterrent."

Although Bellissimo was decided in April 1996, more than eight years ago, the observations made by Anderson J are equally applicable today.

15 In Kirby v The Queen (supra), Roberts-Smith J at [143] - [144] referred with approval to the observations of Anderson J in Bellissimo (supra) and made it clear that trafficking in amphetamine is recognised by the Court to be in the higher range of seriousness in the scale of drug trafficking offences:

"143 In (Bellissimo) at 471, Anderson J noted the change in 'ranking' amphetamine in the category of illicit drugs and explained the reasons for it:

'Amphetamine trafficking is now recognised by the court to be in a higher range of seriousness in the scale of drug trafficking offences. As a result of this, reference to earlier sentencing decisions is no longer a safe guide to the level of sentencing for current cases.

The major sentencing considerations for offences of trafficking in dangerous drugs of addiction such as amphetamines, cocaine and heroin are general and personal deterrence, the major objective being to stop people doing it. It is quite obvious to anyone concerned with criminal justice administration that trafficking in amphetamines is rife in this State and part of its tragedy is that very young people in the community are being exposed to it. This has caused wide-spread community concern. The sentences that have been imposed in the past do not seem to have worked as a deterrent.'

144 Those observations remain as pertinent now as when they were made. The vast majority of offenders who present in this Court, for example, for offences of armed robbery, aggravated burglary and similar offences, are said to have committed them either whilst under the influence of illicit drugs or for the purpose of enabling them to purchase such drugs, or both. The social and personal consequences of illicit drug use within the community continue to be a heavy burden on the community. Courts must impose sentences which will operate as a real deterrent to those who may be minded to involve themselves in the business of drug-dealing."

16 It is contended in the first ground of appeal that the learned sentencing Judge placed undue weight on the quantity and purity of the methylamphetamine. This ground was not strongly advanced at the hearing.

17 It is true that in Wong v The Queen [2001] HCA 64; (2001) 76 ALJR 79 at 70, the High Court made it clear that whilst the weight and purity of a drug are matters which should ordinarily be considered in the exercise of a sentencing discretion, they should not be elevated to the chief factor to be taken into account. As Murray J observed in Marker v The Queen [2002] WASCA 282 at [29], they should not be given a predominance which results in other relevant matters being overlooked or downplayed in importance.

18 In my view, the learned sentencing Judge did not give undue prominence to the factor of weight or purity of the drug, nor did he suggest that this was the chief factor. His Honour simply pointed out that just over 805 grams of methylamphetamine were involved of very high purity. If cut to a street level of 3 per cent purity, the drug was worth $4 million, and if cut to 6 per cent purity, $2 million.

19 His Honour was entitled to make these observations and in my view there is no indication that his Honour thought this to be the chief factor in the sentencing process.

20 The second ground of appeal contends that the sentence is outside the range of sentences customarily imposed. Counsel for the applicant based his argument squarely on this ground, arguing that a sentence of 15 years' imprisonment should be reserved for an offender proven to be a major drug dealer with a history of offending. A number of decisions of this Court were relied upon to suggest that the sentence imposed by the learned sentencing Judge was excessive.

21 In R v Doyle (1994) 71 A Crim R 360, Seaman J followed Allen v The Queen, unreported; CCA SCt of WA; Library No 950215; 27 April 1995 where Kennedy J (with whom Pidgeon and Ipp JJ agreed) said (at 6 - 7) in relation to the use to be made of comparable cases:

"Although such examples do provide some guidance on appropriate sentences, it must be appreciated that their facts vary widely and that they have to be applied with considerable care. Furthermore, whilst the sentence imposed will almost invariably reflect the quantity of the drug involved, the sentence is not to be determined simply by multiplying the amount of the drugs by some period of time."

In cases to which reference is now made are to be considered in light of these remarks.

22 In Quach v The Queen [1999] WASCA 210, Ipp, Wallwork and White JJ concluded (at 26) that the appropriate range of sentences for cases involving possession of heroin with intent to sell or supply involving quantities of between 600 - 700 grams and purity of 55-65 per cent where the offender is a courier, and where the offence is committed for a commercial gain will be between 11 - 15 years.

23 It will be seen that Quach the offender was a courier. In the present case, the learned sentencing Judge reached a specific conclusion that the evidence pointed to the applicant being a person involved in trafficking in drugs for commercial gain and profit and not a mere courier.

24 Counsel for the applicant sought on the hearing of the appeal to persuade the Court that as there was no evidence other than that the applicant was found in a hotel room with a large quantity of methylamphetamine, it was impossible to draw the conclusion that he was more than a mere courier. However, the facts of the case as elaborated by the prosecutor in his opening to the jury (which by verdict of the jury were accepted), tell a story which reveal that the applicant was undoubtedly a dealer and not merely a person couriering drugs from one to another. The prosecutor said:

"On the double bed in the room the police found a set of electronic scales in their box. That's the box there and the scales appear behind it. These electronic scales, you will hear, are typical of the sort used by drug dealers to weigh out their drugs into the quantities that they are sold on the streets because they're very minute scales - they can weigh minute amounts of substances on these sort of scales, as small as .1 of a gram. When those scales were later examined by a chemist, methylamphetamine was detected on it.

On the benchtop next to where the television was - and I will just use these photographs again. Looking now at the fourth row of the first photoboard I showed you and the first photograph on there you can see a television. Behind that is a benchtop. On that was an open box of what is called Glucodin. For those of you who don't know what Glucodin is, it is an energy powder made of glucose. If you're using it for an innocent purpose you would mix it with fruit or drinks or cereals as an energy source. If, however, you're dealing with drugs, it's perfect for adding to the illegal drug in order to increase the weight of the drug and therefore increase the profits.

There is the Glucodin box. You can't see it because it has all been wrapped up in various bags that police put it in but during the course of the trial that will be opened by a witness so you can see it more clearly. It's simply titled 'Glucodin energy powder.' The police removed the powder from the box to enable their forensic examinations to be conducted on it and this was the powder. That's just Glucodin.

A fingerprint from that Glucodin box was later matched to the fingerprint of the accused man Tulloh. Also near this box of Glucodin was this plastic container. When police first saw it there in the motel room it was heavily bound up with brown packing tape. The tape, however, had been removed from near where the lid unscrews and the lid was not screwed on. Inside the container was a large clipseal bag that was empty. It had been cut open at the bottom."

25 It is true that in Quach, Ipp J (at [26]) concluded that a sentence of 15 years' imprisonment in respect of possession with intent to sell or supply 635 grams of high grade heroin was "bordering, as it were, on the outer limits of what I regard to be the permissible range", but in Aconi v The Queen [2001] WASCA 211, a starting point of 16 years' imprisonment was considered appropriate where the applicant had pleaded guilty to possession with intent to sell or supply two packages of heroin comprising 112.5 grams of 43 per cent purity and 480.2 grams of 57 per cent purity respectively. Steytler J (with whom Kennedy and Miller JJ agreed) said (at [18] - [20]):

"18 It can ... be accepted that the applicant had an important role in the distribution chain, having access, for distribution purposes, to relatively large quantities of high grade heroin. In those circumstances this was a case in which the starting point for the sentencing of the applicant could be expected to be severe. As was pointed out by Kennedy J in Serrette v The Queen [2000] WASCA 405 at [2], it has frequently been said that those who engage in the illicit drug trade, whatever their role in the enterprise, must expect heavy sentences in which general deterrence will be the principal purpose of the punishment. This is especially so where an offender plays an important role in the distribution process.

19 That said, it seems to me that the starting point of 18 years in this case was too high, having regard for what has been said in Quach and in Wong. It is true that the range suggested in Quach is one which applies to couriers (and that is a term which can conceal as much as it reveals: see R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 279) and not to distributors. However that range was expressed to apply to those who are close to the source of importation and who commit the offence for commercial gain. It seems to me that there can be little to choose between a worst case 'courier' who has between 600 and 700 grams of heroin with a purity between 55 and 65 per cent, who is well aware of the quantity and quality of heroin in his possession, who actively participates in attempts to conceal it, who commits the offence for commercial gain and who is close to the source of importation, on the one hand, and a person in the position of the applicant in this case, on the other. It also seems to me that a starting point of 18 years is excessive when compared with the range suggested in Wong, even taking into account the absence of remissions in New South Wales and the fact that the range there suggested was intended to apply to 'couriers' and to persons low in the hierarchy of the importing organisation.

20 It consequently seems to me that a starting point of 18 years' imprisonment was outside the appropriate range and that a more appropriate starting point in the case of the applicant, even taking into account that he was a person 'higher up in the distribution chain' than a 'mere courier', was one of 16 years' imprisonment."

26 In Kirby v The Queen (supra), Roberts-Smith J (with whom Murray and Wheeler JJ agreed) concluded that the applicant, who had pleaded guilty to possession with intent to sell or supply of 4.85 grams of cocaine at 24 per cent purity and 3.168 kilograms of methylamphetamine of 9 - 10 per cent purity, and who was sentenced to 4 years' imprisonment in relation to the first and 9 years' imprisonment (to be served partly cumulatively) in relation to the second of the offences, could not complain that the sentences were manifestly excessive. Roberts-Smith J (at [151]) pointed out that the applicant was not a first offender and had a previous conviction for possession of amphetamines with intent in July 1994, when he had been sentenced to a term of imprisonment. His Honour concluded that this put a more serious light on his involvement in a commercial drug-dealing operation in December 2001.

27 However, all that can be taken from the case is that the Court did not consider the aggregate sentence of 9 years' imprisonment imposed upon the applicant for the offences committed by him to be manifestly excessive. The case is not authority for the proposition that somebody who has possession of a very large quantity of methylamphetamine can only be sentenced to imprisonment (on a plea of guilty) to something of the order of 9 years.

28 In Cameron v The Queen [2000] WASCA 286, the applicant pleaded guilty in the District Court to possession with intent to sell or supply of 1.1 kilograms of amphetamine. The methylamphetamine was 3 - 4 per cent pure. In the District Court, the offender was sentenced to a head term of 10 years' imprisonment. There were subsequent appeals in relation to the appropriate discount which should have been made for his plea of guilty, but it is only the head sentence with which we are concerned in this appeal. In that respect counsel for the applicant relied upon the observation by Pidgeon J (with whom Ipp and Owen JJ agreed) at [9], where his Honour said:

"There is one and one only ground of appeal and that is understandable. The ground of appeal is that the learned sentencing Judge gave insufficient credit for the early plea of guilty. The offence was extremely serious and I would see the term of 10 years imprisonment as being not a day too long. I consider the applicant rightly abandoned a ground of appeal suggesting that this sentence was outside the range commonly imposed for sentences of this type."

29 However, for my own part I could not conclude from this observation that the range of appropriate sentences for the offence stopped at a maximum of 10 years' imprisonment.

30 In Sinagra-Brisca v The Queen [2004] WASCA 68 the offender was charged with possession with intent to sell or supply substantial quantities of MDMA and methylamphetamine. There were four counts, two of possession of MDMA and two of possession of methylamphetamine, all with intent to sell or supply. The methylamphetamine consisted of 5.06 kilograms ranging in purity between 21 - 50 per cent and 800 grams ranging in purity between 28 and 70 per cent respectively. In relation to the first of the offences of possession of methylamphetamine the sentencing Judge had imposed a sentence of 17 years 6 months and in relation to the second, a sentence of 9 years' imprisonment, discounted to 7 years for a plea of guilty and other factors. After taking into account the totality principle, the learned sentencing Judge imposed an effective term of 20 years 6 months for all offences. This sentence was the subject of the application for leave to appeal, and the question of concurrency of sentences was the primary question under consideration.

31 Wheeler J (with whom Templeman and McLure JJ agreed) concluded that when one considered the question of proportionality between the total effective term and the totality of the applicant's offending, a total effective term of 20 years and 6 months with eligibility for parole could not be said to be disproportionate to the applicant's conduct.

32 Counsel for the applicant in this case relied upon Wheeler J's observations at [32] that none of the sentences imposed by the learned sentencing Judge could be criticised individually. One of those sentences was a sentence which had a starting point of 9 years' imprisonment for possession of 800 grams of methylamphetamine with purity ranging between 28 - 70 per cent. It is therefore contended that the sentence of 15 years imposed upon the applicant is entirely out of proportion to that which her Honour considered beyond criticism in Sinagra-Brisca v The Queen.

33 However, I do not read into Wheeler J's observations in Sinagra-Brisca v The Queen any more than the fact that a head sentence of 9 years in the circumstances of the case was unobjectionable. The case is not authority for the proposition that an offender can expect a head sentence of 9 years for possession with intent to sell or supply of a quantity of methylamphetamine of 800 grams ranging in purity from 28 to 70 per cent.

34 In Sinagra-Brisca v The Queen Wheeler J (at [10]) did make reference to the fact that the applicant was a significant organiser in the acquisition and distribution in Western Australia of large quantities of prohibited drugs, including ecstasy and methylamphetamine. Counsel for the applicant relies upon this observation to support a submission that sentences of the order of 15 years' imprisonment reserved for those who can be proven to have played such a role in drug trafficking.

35 However, I do not accept that submission. In Sinagra-Brisca v The Queen the offender was actually sentenced to 20 years 6 months' imprisonment and in relation to some offences he had pleaded guilty. It does not follow that an offender has to be proven to be involved in large scale drug trafficking (with a history of that conduct) before he can be sentenced to imprisonment of the order of 15 years.

36 Stapleton v The Queen [2004] WASCA 130 was not referred to by counsel for the applicant, but judgment in the case was only delivered by Malcolm CJ, Wheeler and McKechnie JJ on the day of the hearing of this application.

37 The applicant had pleaded guilty to possession with intent to sell or supply 437 grams of methylamphetamine which was 58 per cent pure. He was sentenced to 9 years' imprisonment, the learned sentencing Judge having taken a starting point of 10 years. The applicant sought leave to appeal against the sentence on the ground that the starting point of 10 years' imprisonment was manifestly excessive and that there was insufficient reduction of his sentence for his plea of guilty.

38 Malcolm CJ (at [46]) had this to say in relation to the range of sentences appropriate for very serious drug offences where large quantities are involved:

"... A sentence in the range of between 10 and 15 years' imprisonment for very serious drug offences where large quantities are involved are not uncommon: cf Kezkiropoulos v The Queen [2002] WASCA 352; Cameron v The Queen [2000] WASCA 286; Quach v R (supra); and Aconi v The Queen [2001] WASCA 211. In my opinion, the sentence of imprisonment for 9 years in this case was well within the appropriate range of sentences. Having regard to the quantity, purity, value of the drug, both in its pure form and after it had been cut, and the fact that the applicant made it clear that he could provide to the others involved regular supplies from the Eastern States, all combined to result in a sentence which, in my opinion, was well within the appropriate sentencing range."

"The applicant brought 437 grams of 58 per cent pure methylamphetamine, worth about $40,000, to Western Australia to be distributed by La Bianca and his allies. In the course of telephone intercepts the applicant made it clear that he could provide regular supplies to La Bianca. In these circumstances, personal antecedents, and other matters of mitigation, play a comparatively small role. On the other hand, the deterrent aspects of sentencing, both personal and general, are important factors. A sentence of 10 years' imprisonment for the nature of the crime as articulated by the sentencing Judge is within the general range of sentences commonly imposed for like offences: Kezkiropoulos v The Queen [2002] WASCA 352; Quach v R [1999] WASCA 210; Aconi v The Queen [2001] WASCA 211. I do not regard a sentence of 10 years' imprisonment as beyond the range of a sound sentencing discretion or indicative of error. However, the Judge did not impose such a sentence. The sentence imposed was one of 9 years' imprisonment. The reduction can only be explained on the basis that the Judge took into account, to a degree, the plea of guilty."

40 Other observations made by Malcolm CJ confirmed what has been said in earlier cases about a ranking of methylamphetamine in the scale of serious drugs and the relevance of personal factors. His Honour said (at [40]):

"It was acknowledged by counsel for the applicant that methylamphetamine has been held to be in the upper hierarchy of seriousness of drug-trafficking offences: R v Bellissimo (1996) 84 A Crim R 465 at 471 per Anderson J; and R v Darwell (1997) 94 A Crim R 35 at 40 per Malcolm CJ (with whom Kennedy and Franklyn JJ agreed). In such cases matters personal to an offender are of much less relevance than in other cases. The learned sentencing Judge acknowledged that the applicant's role in the transaction was less than that of La Bianca and that the applicant had better antecedents; the enterprise was unsophisticated; the applicant was to receive small reward; his age and working life expectancy were such that he would have little prospect of employment on release."

"Methylamphetamine is now regarded as falling within the same general category of dangerous drugs as heroin. In this context personal and general deterrence are important factors: Collier v The Queen [2001] WASCA 69 at 5, per Kennedy, Wallwork and Miller JJ. This Court has made it clear that it is normally futile to argue that personal circumstances and antecedents provide any significant mitigation where an offender consciously and deliberately participates in the heroin trade: Quach v R [1999] WASCA 210; R v Ruich [2000] WASCA 84; R v Munro [2000] WASCA 285. The consequence is that that in the case of serious drug offences, matters personal to an offender are accorded very little weight: Watson v The Queen [2000] WASCA 119 at [102], per Malcolm CJ."

41 Stapleton v The Queen can be taken as recent authority of this Court for the proposition that sentences of up to 15 years' imprisonment will be imposed for possession with intent to sell or supply of large quantities of methylamphetamine.

42 The cases referred to by counsel for the applicant and Stapleton v The Queen do no more than confirm the cautionary observation of Kennedy J in Allen v The Queen that although examples of cases provide

some guidance on appropriate sentences, their facts vary widely and they must be applied with considerable care. Further, the cases indicate that for large scale drug dealing for commercial gain very substantial sentences of imprisonment will be imposed because deterrence is a key consideration.

43 In this case the applicant was a large scale dealer in a drug which has been equated with the most serious drugs involved in drug trafficking. A sentence of 15 years' imprisonment was, in my view, open to the learned trial Judge. As his Honour pointed out, although the applicant could not be penalised for pleading not guilty, the fact remained that there was no remorse, acceptance of responsibility or facilitation of the course of justice which would justify any discount for that reason. The cases clearly establish that personal factors are of limited importance in cases of this nature.

44 Given that the learned sentencing Judge found and was entitled to find that the applicant was more than a courier and involved in the possession with intent to sell or supply of a very substantial amount of methylamphetamine purely for commercial gain, the sentence imposed could not be said to be outside the range of the sentences applicable for such a case. It was at the higher end of the range, but the Court is required to give full weight to the discretionary exercise of the sentencing process by the learned sentencing Judge, which is basic and fundamental to the administration of criminal justice: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. I would refuse leave to appeal.

45 MCLURE J: I have had the advantage of reading in draft form the reasons to be published by Miller J. I too would refuse leave to appeal generally for the reasons given by Miller J. However, I wish to add some observations of my own.

46 In determining whether a sentence is within a sound discretionary range, it is proper to have regard to decisions in comparable cases. Indeed, part of this Court's role is to ensure an appropriate level of consistency in the sentences imposed in this State. At the same time I am mindful that the comparative exercise can be of limited utility because each case turns on its own facts and circumstances. However, where as in this case, deterrence is the dominant sentencing consideration and personal circumstances and antecedents carry little weight, the range of a legitimate variation in sentences should be materially reduced and comparisons of greater assistance.

47 The sentencing principles that apply to the offence of possession of a prohibited drug with intent to sell or supply are of longstanding and conveniently collected in R v Bellissimo (1996) 84 A Crim R 465. In that case amphetamines were placed in the category of a dangerous drug of addiction in the same general league as heroin and cocaine and thus in the higher range of seriousness in the scale of drug trafficking offences. As a result, earlier sentencing decisions are not a safe guide to the appropriate level of sentencing (Bellissimo per Anderson J at 491).

48 In 1999 this Court in Quach v The Queen [1999] WASCA 210 gave detailed consideration to the sentences imposed for the offence of drug trafficking. In that case the offender was found guilty of possession of 635 grams of heroin having a purity of between 55 per cent to 65 per cent with intent to sell or supply. He was also found to have had knowledge at the time of the offence of the quantity and quality of the drug and committed the offence for commercial gain. He had no relevant prior convictions. He was found guilty after trial and was sentenced to 15 years imprisonment. Leave to appeal against sentence was granted but the appeal was dismissed. The leading judgment was given by Ipp J with whom Wallwork and White JJ agreed. The court acknowledged that at that time it was difficult to discern a consistent pattern of sentencing for offences of this kind. Ipp J surveyed the relevant decisions in the period 1989 to 1999 and concluded that just on half (five) supported a finding that a term of 15 years was within sound sentencing discretion, one was equivocal and the balance (three) were to the contrary. Ipp J concluded that the appropriate range of sentences for cases of like nature was between 11 to 15 years imprisonment. However he said 15 years was a starting point, by which I understand him to mean before matters of mitigation are taken into account, and was at the extreme end of the scale. On that basis the sentencing Judge had in effect allowed nothing for mitigating factors. Ipp J concluded that as such factors were minimal and would produce a reduction of a few months at most, the Court of Appeal would not intervene.

49 In my assessment, having regard to relevant factual variations, the sentence of 15 years imprisonment imposed in this case is within a relatively consistent sentencing range. Without attempting to be exhaustive, relevant cases include the following:

• Cameron v The Queen [2000] WASCA 286 - plea of guilty to possession of 1.1 kilograms of methylamphetamine, purity 3 - 4 per cent with intent to sell or supply. Acted as courier. Prior convictions but no drug related offences. Starting point of 10 years.

• Aconi v The Queen [2001] WASCA 211 - fast track plea of guilty to two counts of possessing heroin with intent to sell or supply being 112.5 grams, 43 per cent purity and 480.2 grams, 57 per cent purity. Offender not an addict and had no prior convictions for drug offences. Not a mere courier but a person much higher up in the distribution chain. Starting point of 18 years reduced to 15. On appeal, sentence found to be manifestly excessive. Court of Appeal had starting point of 16 years reduced to 13 years for the early plea.

• Grakalic v The Queen [2002] WASCA 139 - offender found guilty after trial of trafficking 127 grams of heroin, purity 57 per cent. The offender was a principal in the offence and had no criminal record. Sentenced to 12 years.

• Delovski v The Queen [2002] WASCA 88 - plea of guilty to the sale of 524 grams of heroin, purity 25 per cent. Offender in the upper end of the commercial hierarchy and had no criminal record. Sentenced to 9 years.

• Kezkiropoulos v The Queen [2002] WASCA 352 - plea of guilty to possession of 422 grams of methylamphetamine, purity of 59.3 per cent (at a street purity of 7 per cent, had the potential to yield nearly 3.6 kilograms) with intent to sell or supply. Offender a courier for reward although he knew he must have been dealing in a large quantity of drugs. Starting point of 12 years reduced to 10 years.

• Marker v The Queen [2002] WASCA 282 - a plea of guilty to possessing 53.9 grams of methylamphetamine, purity 41 per cent, with intent to sell or supply. Offender was dealing in drugs for personal gain. Starting point 8 years reduced to 6 years and 8 months for guilty plea.

• R v Hafner [2002] WASCA 211 - fast track plea of guilty to one count of conspiring to possess 244 grams of heroin, purity 13 per cent, and one count of attempting to sell or supply 21.2 grams of methylamphetamine, purity 36 per cent. The offender was a drug user and had a number of drug-related prior convictions including a conviction for trafficking. He was not a courier but played a key role. Sentenced to 7 years imprisonment on count 1 and 6 years imprisonment on count 2, to be served concurrently. Court of Appeal acknowledged that sentence lenient but held not to be manifestly inadequate.

• Kirby v The Queen [2003] WASCA 164 - fast track plea of guilty to one count of possessing 4.85 grams of cocaine, 24 per cent purity with intent to sell or supply and one count of possession of 3.168 kilograms of methylamphetamine, 9 - 10 per cent purity with intent to sell or supply. Quantity of pure amphetamine around 311 grams. Not the driving force behind the dealing in amphetamines. A previous conviction for trafficking amphetamines. Sentence of 4 years imprisonment for possessing cocaine. For possessing methylamphetamine, starting point of 15 years reduced to 9 years. Partial cumulancy ordered.

• Sinagra-Brisca v The Queen [2004] WASCA 68 - fast track plea of guilty by offender carrying on business of drug trafficking to four counts of possession with intent to sell or supply as follows: Count 1: 2,400 grams of ecstasy, purity 27 per cent - 17 years and 6 months; Count 2: possessing 5.06 kilograms of methylamphetamine, purity between 21 - 50 per cent - 17 years and 6 months; Count 3: possession of 800 grams of methylamphetamine, purity 28 - 70 per cent. Starting point of 9 years reduced to 7 years; Count 4: possession of 14 grams of ecstasy, 18 per cent purity. 3 years imprisonment. Head sentence of 20 years and 6 months.

• Stapleton v The Queen [2004] WASCA 130 - plea of guilty to supplying 437 grams of methylamphetamine, 58 per cent purity. No relevant prior convictions. Unsophisticated enterprise for which offender was to receive a small reward. Starting point of 10 years reduced to 9. Court of Appeal said not manifestly excessive.

50 As the High Court made clear in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584; 76 ALJR 79 it is wrong to focus solely on the quantity of drug involved. It is also necessary to have regard to other matters including the offender's knowledge of the type and amount of drug the subject of the offence and the nature and level of the offender's participation in the distribution of the drug. However, whilst the quantity of drug cannot be the sole criterion in determining the sentence or sentencing range, it remains an important factor which can be given significant weight. This is amply demonstrated in the cases. There is a direct, but not linear or proportional, correlation between the amount of drug in the offender's possession and the sentence imposed. That is why when this Court surveys the decisions for consistency it often expressly converts the quantity of drug to a standard measure, either the pure quantity of the drug or alternatively the potential yield at a nominated level of street purity: Kezkiropoulos at [6]; Hafner at [23]; Marker at [88].

51 I accept that viewed in isolation the sentence imposed on count 3 in Sinagra-Brisca is out of line with the sentences imposed in other cases. However, that was not in issue in the appeal which primarily concerned the totality principle. I agree with Miller J that Sinagra-Brisca does not support the appellant's contention. It is appropriate to focus in that case on the head sentence which demonstrates a commitment to significant deterrent sentences for drug trafficking.

52 In this case the applicant was dealing in a large quantity of high purity drugs. The sentencing Judge concluded that he was close to the source of manufacture and was far from being a mere courier. If the methylamphetamine had been cut to a street level of 3 per cent purity, it was worth $4 million. The very high financial returns for drug trafficking must be appropriately counter-balanced by significant deterrent sentences following detection and conviction. The appellant's level of culpability exceeds that of the offenders in Stapleton, Kirby, Kezkiropoulos and the other cases, except Quach, Sinagra-Brisca and Aconi. There is little to materially distinguish his culpability from the offenders in Quach and Aconi. I am satisfied that the sentence imposed on the applicant is within, albeit at the high end of the range of sentencing discretion.

Tulloh v The Queen [2004] WASCA 169

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Judgment (101 paragraphs)

Tulloh v The Queen [2004] WASCA 169 (11 August 2004)

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Cases Cited (4)