Court of Appeal (WA)|2008-07-03|Before: Mr J, Miller JA, As Miller JA, Steytler P, Lure JA

WASHER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 135 (3 July 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentence - Conspiracy to possess methylamphetamine with intent to sell or supply - 7 years' imprisonment - Whether sentence manifestly excessive - Whether sentencing judge misunderstood appellant's involvement in the conspiracy - Whether sentencing judge prejudiced by reference to appellant being a member of an outlaw gang - Whether parity of sentence with other offenders

Criminal law and procedure - Extension of time for filing notice of appeal - Delay of 2 1/2 years - No proper explanation - Whether miscarriage of justice

1 STEYTLER P: I have had the advantage of reading, in draft, the reasons of Miller JA. I agree that an extension of time within which to appeal should be refused.

2 As Miller JA has explained, the appellant was convicted of conspiring with others to possess methylamphetamine with intent to sell or supply to another contrary to the provisions of s 6(1)(a) and s 33(2)(a) of the Misuse of Drugs Act 1981 (WA). He was sentenced to a term of 7 years' imprisonment. Because his notice of appeal was lodged 2 1/2 years out of time, he requires an extension of time within which to appeal.

3 The detailed facts leading to the appellant's conviction have been set out in the judgment of Miller JA and I will not repeat them. Essentially, they establish that the appellant, a member of the Rebels Motorcycle Club, conspired with John Di Lena and Andrea Scott, between 18 May 2000 and 2 June 2000, to purchase a quantity of methylamphetamine. It seems, from recordings of telephone conversations in which the appellant was engaged, that he had wanted to acquire one pound of methylamphetamine but that Di Lena had insisted on acquiring a larger quantity. In the end, the conspirators arranged for the purchase of a total of 1.96 kg of methylamphetamine. The appellant's contribution to that purchase was the payment of $55,000. Di Lena's contribution was significantly larger.

4 In the course of his sentencing remarks, the sentencing judge referred to the appellant as having been a member of the 'Rebels Outlaw Motorcycle Gang'. He said that the appellant and Di Lena had arranged for the purchase of the methylamphetamine from persons who were presumably members of 'the same group'. The sentencing judge also found that Di Lena was the principal organiser of the transaction and that the appellant was 'involved in financing to the extent of $55,000, a sum sufficient ... to give [him] a substantial beneficial interest in the drug and the control of it'.

5 By ground 1 of the grounds of appeal the appellant contends that he had provided only $50,000 for a pound of methylamphetamine and that the sentencing judge had erred in assuming a greater level of participation on his part. He says that this had the consequence that the sentence imposed was manifestly excessive.

6 The transcript of the relevant telephone intercept records the appellant as saying, in what seems to be a reference to the drug

transaction, that he had 'already given fifty-five grand up front'. If, as he says, he was himself only to receive a pound of the drug (whether for $50,000 or $55,000), that does not alter the fact that he was party to a conspiracy to take possession, for the purposes of sale, of the larger quantity that was to be delivered into the possession of the conspirators. It did not matter, for the purposes of the conviction, how much of that quantity was to be sold by the appellant for his personal gain or how much of it was to be sold by Di Lena for his exclusive gain. The sentencing judge did not misunderstand the evidence in this respect. I have said that he specifically mentioned that the appellant's contribution was $55,000 (and it is a matter of little significance whether it was $50,000 or $55,000). Ground 1 has no substance.

7 As I understand ground 2 of the grounds of appeal, the appellant contends that, because the sentencing judge referred to the appellant as a member of an 'outlaw gang', this revealed 'extreme prejudice' which led to an excessive sentence. The appellant says that the Rebels Motorcycle Club is not an outlaw gang. He also contends that the sentencing judge was wrong to assume that the purchase of the methylamphetamine had been arranged through other members of the gang. I agree with Miller JA that the reference to an 'outlaw gang' was merely part of the narrative and that it played no operative part in the sentencing process. Ground 2 consequently fails.

8 Ground 3 raises a parity issue. As the sentencing judge recognised, Di Lena was the principal organiser of the transaction and played a more substantial role than the appellant. However, he sentenced both Di Lena and the appellant to terms of 7 years' imprisonment. As Miller JA has pointed out, he did so because Di Lena was then serving a 4-year sentence (imposed in 2002) and had in fact completed the non-parole component of that sentence. He regarded this, rightly, as raising a totality issue (as to which see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 308 (McHugh J) and it was for that reason only that he imposed upon Di Lena the same sentence as that which he imposed upon the appellant. In the circumstances there is no disparity such as to give rise to any justifiable sense of grievance. Ground 3 consequently fails.

9 In the circumstances, and taking into account the absence of any adequate explanation for the delay in lodging a notice of appeal, I would refuse an extension of time for that purpose.

10 McLURE JA: I agree with Steytler P and Miller JA.

11 MILLER JA: The appellant was convicted in the District Court at Perth of the offence of conspiring with John Di Lena (Di Lena) and Andrea Scott (Scott) between 18 May 2000 and 2 June 2000 to possess a prohibited drug, methylamphetamine, with intent to sell or supply it to another contrary to the provisions of s 6(1)(a) and s 33(2)(a) of the Misuse of Drugs Act 1981 (WA). He was sentenced after trial to 7 years' imprisonment effective from 23 March 2005. An order was made for eligibility for parole.

12 The appellant was convicted on 23 March 2005 and sentenced on 29 April 2005. He filed a notice of appeal on 29 November 2007 which was approximately 2 1/2 years out of time. He applies for an extension of time within which to appeal and for leave to appeal. The application for leave to appeal was referred to this court for determination together with the appeal.

13 The appellant filed on 29 January 2008 an affidavit sworn 12 January 2008 in which he sought to explain the long delay in the filing of a notice of appeal against sentence. He detailed the history of the matter. He was charged on an indictment dated 30 April 2004. After conviction on 23 March 2005, he sought leave to appeal against that conviction, but the appeal was dismissed by the Court of Appeal on 14 August 2006. He sought and obtained special leave to appeal to the High Court of Australia on 6 September 2006. His appeal was heard by the High Court on 27 March 2007 and on 8 November 2007 it was dismissed.

14 The appellant's primary contention in his affidavit is that he had 'legitimate cause to appeal' (against conviction) and (by inference) his primary concern was with the question of appeal against conviction. It was only after dismissal of that appeal that he turned his attention to the application for leave to appeal against sentence.

15 This affidavit does not reveal any sufficient explanation for the very long delay that has occurred in the filing of a notice of appeal. In those circumstances, the only basis upon which an extension of time could be granted would be if the appellant could demonstrate that he would otherwise suffer a miscarriage of justice. I recently stated the relevant principles in R v The State of Western Australia [2008] WASCA 127:

The principles upon which an extension of time will be granted where there has been gross delay are clear. They were stated by Burt CJ in Narkle v The Queen (Unreported, WASCA, Library No 6108, 2 December 1985) as follows:

This court has on a number of occasions pointed out that the time limit fixed by s 695(1) of the Code must be taken seriously and every effort must be made to comply with it. The section contains no express criteria controlling the court's discretion to extend time and in that sense it can be said that the discretion is unfettered. But that is not to say that it will be exercised as of course. It should only be exercised upon facts shown which in the judgment of the court appear positively to call for its exercise and the onus upon an applicant for extension of time will of course increase as the time goes by. A delay of four and a half months, as in this case, can only be described as gross and it would be necessary to show very special circumstances indeed to sustain the exercise of this Court's discretion to extend time to that extent. Those circumstances may explain and excuse the delay or they may relate to the grounds of appeal and indeed the latter consideration may become and will become dominant should it appear that there has been a manifest miscarriage of justice. (2)

... Section 695 of the Criminal Code has since been repealed and replaced by s 28(3) of the Criminal Appeals Act 2004 (WA). An appeal must still be commenced within 21 days of conviction.

The principles set out by Burt CJ in Narkle remain applicable: see Gavin v The Queen (1992) 6 WAR 195, 198 - 199 (Malcolm CJ); Ejueyitsi v Maloney [2007] WASCA 3 [8] (Wheeler JA). [9] - [11]

16 The grounds of appeal advanced by the appellant are as follows:

The learned judge erred, in fact, by taking into account the prosecution[n's] evidence that; quote; on the 30th of June 2000, Washer had a conversation with one, Gavin Whitsed, at his home in Carlisle that was being recorded. He said he had given fifty five grand upfront. Unquote. The actual recording states, I have given fifty grand upfront for a pound. This has [misled] the judge in the level of participation and effectively leading to an excessive sentence.
The learned judge med, by law, by sentencing me as a member of an OUTLAW GANG, showing extreme prejudice and leading to an excessive sentence.
The learned judge erred, in fact, by allowing parity in accordance with The Court of Appeal, The Director of Public Prosecutions and the District Court but not reflecting this in the penalty imposed leading to an excessive sentence.

17 The following summary of the prosecution case is taken from the judgment of Gleeson CJ, Heydon and Crennan JJ in the High Court of Australia in Washer v The State of Western Australia [2007] HCA 48; (2007) 82 ALJR 33.

18 The appellant was tried jointly with Di Lena and Scott. These three, together with Gavin Whitsed (Whitsed) and William Bowles (Bowles), were members of the Rebels Outlaw Motorcycle Gang. Through contacts in Brisbane, the appellant, Di Lena and Scott arranged to purchase 2 kg of methylamphetamine. Di Lena was the principal organiser of the transaction and the appellant was involved in financing it to the extent of $55,000.

19 An agreement was reached whereby an associated named Fisher would fly to Brisbane, collect the drug and then transport it back to Western Australia. On 19 May 2000, Di Lena flew to Brisbane for the purpose of making arrangements for the drug transaction. He returned to Perth on 22 May 2000 and Fisher flew to Brisbane on 28 May 2000. Fisher made telephone calls from Brisbane to Di Lena and to an associate of Di Lena. On 30 May 2000, a Ms Lennon (Lennon) flew to Brisbane to join Fisher. By this time, the appellant's telephone calls were being monitored as part of a covert police operation. Some of Di Lena's telephone calls were also monitored, but from a later date (10 July 2000). Listening devices were installed in the homes of the appellant and Di Lena, with the installation in the appellant's home occurring on 9 December 2000.

20 On 30 May 2000 (which was the day Lennon flew to Brisbane), the appellant was recorded in a telephone conversation saying that he was in a hurry to go to Brisbane and would be there for about a week. He travelled to Brisbane and remained there until 6 June 2000.

21 Scott made arrangements with Hertz Rent-a-Car whereby she undertook to pay hire charges debited to her credit card account in return for a car being made available to Fisher. Fisher collected the car from Hertz Rent-a-Car in Brisbane and he left Brisbane with Lennon on 31 May 2000. They drove to a town in northern New South Wales, but on the day of 31 May, they quarrelled and Lennon drove off in the car. Two days later, while the vehicle was still in New South Wales, it ran out of fuel. Lennon was spoken to by police, who searched the car and found concealed in it 1.96 kg of methylamphetamine. She was then arrested.

22 Meanwhile, Fisher was making telephone calls as part of attempts to find Lennon and the drugs. He was arrested on 6 June 2000. That day, the appellant returned to Perth. In mid-June, police investigated the hiring of a car and established Scott's complicity.

23 On 29 June 2000, the appellant had a conversation with a person named Page. It contained references to drug dealing, but did not relate to the Queensland importation. On 30 June 2000, the appellant had a conversation with Whitsed at the appellant's home. This conversation was alleged to be generally about drug dealing. In it, there was specific reference to the Brisbane transaction. In the course of the conversation, the appellant told Di Lena that he should go to Brisbane urgently to sort the matter out. He spoke of having given over '50 grand up front'.

24 On 3 July 2000, the appellant had a conversation in his home with Bowles. This conversation included discussion of what the prosecution contended were sales of drugs. The appellant said a number of things about the Brisbane transaction. On 7 July 2000, he said it looked as if he would have to 'go over east and sort it out'. On 11 July 2000, there was a recorded conversation at the appellant's home between the appellant and Whitsed. It did not include reference to the Brisbane transaction, but referred to transactions which the prosecution alleged were drug transactions.

25 On 12 July 2000, police executed a covert search warrant on the appellant's house. In the kitchen, they found scales and a grinder containing traces of methylamphetamine.

26 On 19 July 2000, the appellant and Di Lena travelled together by air to Brisbane. They were then under police surveillance. They returned to Perth on 23 July 2000, and on 24 July 2000 in a telephone conversation between Di Lena and Whitsed, Di Lena made reference to the appellant, saying that he was 'doing what he should have been doing all along'.

27 On 7 September 2000, a conversation between Di Lena and Scott was recorded at their home. It contained extensive discussion of the Queensland incident, and included what the prosecution claimed was criticism of Fisher.

28 On 13 September 2000, there was a conversation between Di Lena and Scott in which they discussed a request by police to interview Scott. On 21 September 2000, police seized a number of items, including scales and a grinder with traces of methylamphetamine which were located at the appellant's house (a different house from that which he was occupying in July). They also seized an account book of the appellant which contained an entry '29.5, 55,000 J'. The prosecution case was that 'J' referred to Di Lena and the entry was said to be specific evidence of the appellant's role in the Brisbane transaction.

29 The appellant was interviewed by police on 21 September 2000. He acknowledged that he was a member of the Rebels motorcycle organisation, but denied any association with methylamphetamine. He contended that visits to Brisbane were purely social. He denied that in any of his conversations he was talking about drugs. He denied that the grinder with traces of methylamphetamine on it belonged to him. He suggested that the scales may have been used by a drug dealer who surreptitiously entered his house and made clandestine use of the scales. He accounted for the entry in his account book as relating to deals in shares or commodities.

30 The sentencing judge reviewed the facts of the case, and in so doing made reference to the appellant's involvement in the Rebels Outlaw Motorcycle Gang. He said:

It's sufficient to say for sentencing purposes that each of you being at the relevant time members of the Rebels Outlaw Motorcycle Gang arranged through contacts in Brisbane, presumably members of the same group, to purchase two kilograms of methylamphetamine.

31 The sentencing judge then made reference to the appellant's involvement in the conspiracy in the following terms:

The state asserted that you, Mr Di Lena, were the principal organiser of the transaction and you, Mr Washer, involved in financing to the extent of $55,000, a sum sufficient it would seem to give you a substantial beneficial interest in the drug and the control of it.

32 The sentencing judge appreciated that the appellant was to be sentenced for his participation in the agreement to unlawfully acquire the drug. He noted that the offence of conspiring to possess methylamphetamine with intent to sell or supply carried a maximum on indictment of 20 years' imprisonment and/or a fine of $75,000.

33 The sentencing judge considered that there were no aggravating factors apart from 'the behaviour itself', saying:

There are no particular factors aggravating your offending behaviour, save for the behaviour itself, and essentially little to nothing in the way of mitigation.

34 The sentencing judge considered that general deterrence was of primary importance in the sentencing for the offence in question. Nevertheless, he had regard to matters personal to the appellant, noting that he was 44 years of age and that his role was a lesser one than that of Di Lena. He said of Di Lena:

You played a more pivotal role than Mr Washer in the arrangements for the acquisition of the drug and its transportation, but that is required to be balanced against the fact that you have recently served the nonparole component of a four-year sentence for possessing methylamphetamine in 2002.

35 In this ground, the appellant contends that he should have been sentenced only on the basis that he had put up '50 grand not 55 grand' for a pound of methylamphetamine. He disputes the sentencing judge's conclusion that, by contributing such a sum, he had a 'substantial beneficial interest in the drug and the control of it' and contends that he should have been sentenced for conspiracy to possess a pound of methylamphetamine, not 1.96 kg as the State alleged.

36 The appellant (whose case at trial was that he had no involvement whatever with drugs) misunderstands the nature of the charge which was preferred against him. Although the indictment did not allege conspiracy to possess 1.96 kg of methylamphetamine, but only conspiracy to possess methylamphetamine, the State case always was that the conspiracy was to possess 1.96 kg of methylamphetamine. That was the quantity which was located in the motor vehicle driven by Lennon. The alleged conspiracy involved the proposed importation into Western Australia from Queensland of 1.96 kg of methylamphetamine and it was not to the point that the appellant's financial contribution to the enterprise was such that it would have realised for him only one pound of methylamphetamine. The case against him was that he was involved in the conspiracy to obtain the full quantity of 1.96 kg, irrespective of the actual quantity that he expected to receive himself.

37 The appellant contests the sentencing judge's conclusion that a contribution of $55,000 would have given him a 'substantial beneficial interest in the drug and the control of it', but, in my opinion, there is no substance in the appellant's complaint. He did contribute a substantial sum of money, and the sentencing judge was correct to describe that contribution as giving him a substantial beneficial interest in the drug and the control of it. It may be that he did not pay for or expect to receive 1.96 kg of the drug, or even a major proportion of the drug, but nevertheless his involvement was in the conspiracy to possess it.

38 This conclusion is consistent with the reasoning of the High Court in Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1. It was there held that, in sentencing a person for conspiracy to import and supply heroin, when assessing the degree of criminality involved in the prisoner's participation in the conspiracy, the sentencing judge was entitled to take into account the number of importations and supplies of heroin in which he was involved and was not confined to a consideration of the actual agreement to which the prisoner had been a party.

39 In that case, the appellant's role in the conspiracy to import large quantities of heroin in unaccompanied suitcases brought through an airport was to provide whenever required a corrupt Customs Officer who would ensure that each suitcase would be removed from the airport without going through Customs and then delivered to a member of what was described as 'the McGann gang'. The court (Deane, Dawson, Toohey, Gaudron and McHugh JJ) said:

It is commonplace that the ingredients of the offence of conspiracy are complete once there is agreement between two or more persons. [Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317 at 327, 334; R v Kamara [1974] AC 104 at 119] But it is equally plain that the conspiracy does not end with the making of the agreement. 'It will continue so long as there are two or more parties to it intending to carry out the design.' [R v Doot [1973] AC 807 at 823. See also R v G, F, S and W [1974] 1 NSWLR 31 at 43-44] The conspiracy alleged by the Crown in the present case continued over a period of a year or so and during that time the parties to the conspiracy decided on such matters as the dates of importation of heroin and the quantities involved. A finding of guilt by the jury that there was a conspiracy as alleged by the Crown necessarily involved, as has already been stated, an agreement by the appellant with others to import large quantities of heroin and thereafter to distribute it. In assessing what Gleeson CJ described as 'the degree of criminality involved in the appellant's participation in the conspiracy' [R v Savvas [No 2] (1991) 58 A Crim R 174 at 177], Hunt J. was entitled to have regard to the part the appellant played. A permissible, perhaps the only, way in which his Honour could do that was by considering the number of importations and supplies of heroin in which the appellant was involved. (8) - (9)

(See also Yazdani v The State of Western Australia [2006] WASCA 221 [19] (Martin CJ), [47] (McLure JA).

40 I can see no substance in ground 1 of the grounds of appeal.

41 By this ground, the appellant complains that the sentencing judge was clearly prejudiced against him by sentencing him as a member of an outlaw gang.

42 The sentencing judge did make reference to the fact that the appellant was a member of the Rebels Outlaw Motorcycle Gang, but, as I have indicated, he also noted that there were no factors which aggravated the offending behaviour other than the behaviour itself. It is apparent, therefore, that the sentencing judge did not take a prejudiced view of the appellant by reason of the fact that he was a member of an outlaw motorcycle gang. It was simply part of the narrative and a necessary part of the narrative because it stated a fact about which there appears to have been no dispute. The High Court in its reasons (Washer v The State of Western Australia), quoted the sentencing judge's observation that the appellant was a member of the Rebels Outlaw Motorcycle Gang and made reference to the fact that, in the appellant's interview with police on 21 September 2000, he had acknowledged being a member of the Rebels motorcycle organisation.

43 I can see no evidence that the sentencing judge was prejudiced against the appellant by reason of his membership of a motorcycle gang, and I therefore consider there is no substance to ground 2 of the grounds of appeal.

44 This ground complains that there was a lack of parity between the sentence imposed on him with that imposed upon Di Lena. I have already quoted the passage in which the sentencing judge compared the position of the appellant and Di Lena. Because Di Lena was serving a 4-year sentence, in respect of which he had served the non-parole component, the sentencing judge took account of the totality principle in imposing upon him the same sentence as that which was imposed upon the appellant.

45 The sentencing judge was correct to take account of the fact that Di Lena was serving a 4-year sentence (imposed in 2002), the non-parole component of which had recently been served. This went to the question of totality. (See Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 308 (McHugh J).)

46 The 7-year sentence which was imposed upon Di Lena had a greater impact upon him than did the 7-year sentence imposed upon the appellant. The appellant cannot complain that there is a lack of parity between the sentences because there is a ready explanation for the fact that each of the appellant and Di Lena received sentences of 7 years' imprisonment. The appellant cannot be said to have any justifiable sense of grievance. There is, in the circumstances, no marked disparity between the sentences imposed on him and on Di Lena. (See Postiglione, 301 - 302 (Dawson & Gaudron JJ), 309 (McHugh J) and Billing v The State of Western Australia [No 2] [2008] WASCA 11 [7] (Steytler P).)

47 It should also be mentioned that in Scott v The State of Western Australia [2006] WASCA 28, which was an appeal by the appellant's co-offender Scott against the sentence of 3 years' imprisonment imposed upon her, Wheeler JA [6] expressed the following opinion about the appellant's sentence:

Having regard to the appellant's very different culpability, it is clear that principles of proportionality would require that she receive a sentence which was much less than that imposed upon Di Lena and Washer. They each received terms of 7 years' imprisonment (10½ years before the transitional provisions were applied) which were appropriate, but were perhaps towards the lower end of an appropriate scale, having regard to their culpability.

48 In my opinion, there is no substance to ground 3 of the grounds of appeal.

49 The appellant has failed to show any merit in the grounds of appeal he has advanced. In those circumstances, I would refuse an extension of time within which to appeal.

WASHER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 135 (3 July 2008)

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Judgment (69 paragraphs)

WASHER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 135 (3 July 2008)

WASHER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 135 (3 July 2008)

Legislation Cited (2)

Cases Cited (5)