Quach v R [1999] WASCA 210

Koushappis v R, unreported; CCA of SCt of WA; Library No 950729; 6 December 1995

Vodanovic v R, unreported; CCA of SCt of WA; Library No 960056; 9 February 1996

R v Votano [2000] WASCA 144

1 KENNEDY J: I invite Justice Miller to deliver the reasons for judgment.

2 MILLER J: The applicant seeks an extension of time within which to make application for leave to appeal against sentence and subject to that application being granted, seeks leave to appeal against a sentence of 4 years' imprisonment imposed upon him on 23 June 2000 for the offence of having in his possession a quantity of a prohibited drug, namely, methylamphetamine, with intent to sell or supply it to another.

3 The application for leave to appeal against sentence was filed some 16 days out of time. The reason given for the late filing of the application is that the applicant had difficulty communicating with his solicitor, the applicant then being in Casuarina Prison. In my view, the delay in filing the application for leave to appeal is minor and no prejudice will be suffered by the respondent by the grant of such an extension. I would therefore grant the extension of time within which to appeal.

4 The applicant was tried before Judge and jury in the District Court on the charge of possession of methylamphetamine with intent to sell or supply. He was convicted after trial and after hearing submissions in relation to sentence, the learned trial Judge dealt with the matter forthwith. Her Honour pointed out that the offence had occurred on 9 September 1998, when the applicant was at Coventrys store in Morley and was apprehended in relation to another matter. He was found, when searched, to have in his possession a small gold box inside which were 6.74 grams of methylamphetamine. The methylamphetamine was packaged in street grams. There were eight small plastic deal bags, each containing a portion of the powder. The drugs, on analysis, were found to contain between 18 and 22 per cent purity of methylamphetamine.

5 The learned trial Judge concluded that the methylamphetamine was likely to be cut down considerably before reaching street level and accepted evidence that the value of the drugs was $1700. Her Honour recounted the personal circumstances of the applicant and took note of his education, occupation, income, family history and criminal history. In regard to the latter, he was treated as virtually a first offender.

6 The learned trial Judge concluded that the applicant was not a drug user and that his involvement in dealing was at a "relatively high level". After being urged to impose an intensive supervision order and/or a suspended sentence, her Honour took the view that neither was appropriate and that the offence was far too serious to allow of anything other than a sentence of imprisonment. Her Honour referred to

community concern at the level of drug dealing and the dangers to people who consume drugs which they receive from dealers. She also referred to statements in the Court of Criminal Appeal in relation to the level at which methylamphetamine should be rated in the hierarchy of drug offences and concluded that in all the circumstances a sentence of 4 years' imprisonment with eligibility for parole was the only disposition of the matter open.

7 The applicant now seeks leave to appeal from the sentence on the grounds that it was a manifestly excessive sentence and outside the range of a sound discretionary sentence. Particulars given include the quantity of the drug involved; the lack of previous record, the circumstances of the offence and the personal antecedents of the applicant.

8 The essential submissions made on behalf of the applicant are that the facts did not warrant a conclusion that the applicant operated at a relatively high level of distribution; that they did not warrant a conclusion that the drugs would be cut down; that the evidence at trial indicated a naive person dealing at street level and that the sentence was manifestly excessive having regard to those circumstances and the applicant's antecedents. The respondent rightly submits that this court must approach the appeal in accordance with the principles set out in Lowndes v R [1999] HCA 29; (1999) 195 CLR 665 and that it must therefore be shown that the Court at first instance failed to properly exercise its discretion in this case. The respondent points out that the maximum penalty for the offence is a fine of $100,000, imprisonment for 25 years, or both, and that methylamphetamine is considered to fall at the higher end of the scale of seriousness in the hierarchy of prohibited drugs.

9 This court has recently firmed up sentences for possession and supply of methylamphetamine: Darwell v R (1979) 94 A Crim R 35. Although this case was concerned with MDMA (ecstasy), and not methylamphetamine, Malcolm CJ (at 40) adopted what had been said by Anderson J in Calder v The Queen, unreported SCt of WA; Library No 960534; 11 September 1996, namely that 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". Anderson J said:

"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 widespread community concern. The sentences that were being imposed in the past do not seem to have worked as a deterrent."

Malcolm CJ considered in Darwell that there was every justification for firming upon on sentences in relation to drugs of addiction, which included MDMA ecstasy and methylamphetamine.

10 In the present case it was, in my view, open to the learned trial Judge to conclude that the applicant was a person who was dealing in illicit drugs for commercial gain. It was also, in my view, open to her Honour to conclude that the applicant was at a relatively high level in the chain of distribution. It is to be noted that her Honour said "relatively." No doubt the fact that the applicant was not a user influenced her to that view.

11 The applicant was, on the evidence of Detective McGee, a person who was above the street level trade carried out by users who deal to support their use. It was, in my view, also open from the deposition of Detective McGee, for her Honour to conclude that the drugs would be cut before reaching street level. Experience of the courts is that many drugs are cut and further cut, before ultimately reaching users, and the statement of Detective McGee sets out how what he terms the economics of the drug trade operate in that respect.

12 Reference to other sentences imposed in other cases are seldom particularly helpful in these matters. What can be said about this case is that the sentence imposed was relatively severe for the quantity of drug in possession of the applicant but, on the other hand, the learned trial Judge was entitled to reach the conclusion that the applicant was a person who was dealing in drugs purely for commercial gain. That put him in a different light to a person who was a user of such a drug.

13 In my view, it cannot be said that the sentence imposed was outside the range of a sound discretionary judgment. Her Honour took into account all matters personal to the offender, but deterrence and protection of the community are undoubtedly the principal considerations in sentencing in these cases: Bellissimo v R (1996) 84 A Crim R 465. For these reasons I would refuse the application for leave to appeal.