Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Conspiracy to sell methylamphetamine - Multiple counts - All mitigating factors considered at trial - Whether totality principle requires another approach

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Chan (1989) 38 A Crim R 337

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

Collard v The State of Western Australia [2004] WASCA 297

Hollingsworth v The Queen [2004] WASCA 73

Johnston v The Queen, unreported; CCA SCt of WA; Library No 960153; 22 March 1996

Krakouer [1999] WASCA 147; (1999) 107 A Crim R 408

Krakouer v The Queen [1999] WASCA 147; (1999) 107 A Crim R 408

Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554

R v Hafner [2002] WASCA 211

Readhead v The State of Western Australia [2005] WASCA 191

Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1

Scott v The State of Western Australia [2006] WASCA 28

Sutton v The Queen [2004] WASCA 200

The State of Western Australia v Andela [2006] WASCA 77

The State of Western Australia v Bruce [2004] WASCA 226

Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107

Ward [1999] WASCA 157; (1999) 109 A Crim R 159

Wood v The Queen [2003] WASCA 16

Bell v The Queen [2001] WASCA 40

Bellissimo v The Queen (1996) 84 A Crim R 465

Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19

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

Kirby v The Queen [2003] WASCA 164

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

Marinovich, Romeo & Richiardello (1990) 46 A Crim R 282

Mill v The Queen (1988) 166 CLR 59

Miller v The Queen [1999] WASCA 66

Nguyen v The Queen [2001] WASCA 137; (2001) 118 A Crim R 533

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

1 MARTIN CJ: Each of the appellants has appealed against the sentences imposed following their conviction after trial on the following counts:

1. on 15 June 2001, conspiracy to sell a prohibited drug - namely, methylamphetamine;

2. on 19 June 2001, conspiracy to sell a prohibited drug - namely, methylamphetamine;

3. on 19 June 2001, conspiracy to sell a prohibited drug - namely, MDMA.

2 The appellant Yazdani was sentenced to a term of 4 years' imprisonment on the first count, to a sentence of 1 year and 8 months' imprisonment on the second count, cumulative upon the sentence imposed upon the first count, and to a sentence of 16 months' imprisonment on the third count, to be served concurrently with the other sentences imposed, thus giving rise to a total sentence of 5 years and 8 months' imprisonment.

3 The appellant Chopra was sentenced to 3 years and 8 months' imprisonment on the first count, 1 year and 8 months' imprisonment on the second count, to be served cumulatively upon the sentence imposed on the first count, and to a term of 16 months' imprisonment on the third count, to be served concurrently with the sentences imposed on the first two counts, giving rise to a total sentence of 5 years and 4 months' imprisonment.

4 The circumstances giving rise to the convictions, as found by the trial Judge for the purposes of sentence, were as follows.

5 The first count involved a conspiracy to sell three ounces of methylamphetamine to an unknown purchaser. The conspiracy was effected by an agreement made in the course of an intercepted telephone conversation between the two appellants, which was described by her Honour as having been undertaken in "a sort of drug dealer's code".

6 Counts 2 and 3 arose from an intercepted telephone call which took place on 19 June 2001 at 6.23 pm in the evening. The telephone conversation took place about an hour and 20 minutes after the appellant Chopra had met with an undercover police officer and arranged to sell one ounce of methylamphetamine and 150 ecstasy tablets to that officer.

7 The trial Judge found that the latter conspiracy lasted only approximately 15 minutes, and was never carried into effect. That was because, in the course of a telephone call approximately 15 minutes after the first call, the appellants became concerned as to the circumstances of the approach from the undercover police officer and, in the course of that latter telephone conversation, abandoned their agreement to sell drugs to him

8 At the time of sentence the appellant Chopra was 29 years of age, being married with two young children, a son aged five and a daughter aged three. He had carried on his own business selling car sound equipment, but lost substantial assets when that business failed. He has no prior convictions of any relevance.

9 The appellant Yazdani had studied civil engineering and building construction without completing his qualifications. In 1997, he spent a year in the Solomon Islands working with deaf children as a volunteer. At the time of sentence, he was in a permanent relationship with a woman whose evidence was that she would have married the appellant but for the pending charges. At the time of sentence, it was submitted that he had been working hard for three years in the field of men's cosmetics.

10 The trial Judge expressed her concern that on the evidence adduced before the jury, there was no evidence that either appellant was a drug user; they were clearly dealing in drugs for monetary gain. The trial Judge also found that:

"During the period of the intercepted telephone calls from 15 to 19 June it is apparent from those calls that they were both very enthusiastic about selling drugs."

11 The trial Judge rejected a submission that the penalty should be reduced by reason of the involvement of the undercover agent in the second conspiracy. She was satisfied on the evidence adduced that the agent had been used to penetrate an existing illegal market in prohibited drugs and not to incite or encourage the commission of offences which would not otherwise have been committed. In that context she also found that each appellant would have been quite prepared to sell drugs pursuant to the second conspiracy but for their suspicions as to the undercover police officer.

12 The trial Judge then dealt with the submission that the delay in bringing the matters to trial should be taken into account as a mitigating factor. In that context, she recorded that the offenders were not charged with the offences until almost a year after they were committed. She did not consider that subsequent delays, which were essentially attributable to the trial process and changes in legal representation should be regarded as mitigatory, but recorded her view that the period of 12 months of delay should be taken into account as a mitigatory factor in relation to both appellants.

13 In relation to the appellant Chopra, the trial Judge also took into account the serious motor vehicle accident in which he was involved on 19 March 2005, in which his wife suffered very serious injuries. However, her Honour referred to previous authority to support the well-established proposition that in cases involving a conspiracy to sell substantial quantities of methylamphetamine, personal and general deterrence dominate the sentencing process and the personal circumstances of the offender will be of less significance.

14 In the case of the appellant Yazdani, the trial Judge expressed the view that she was not convinced that he had turned his life around. She recorded the fact that the appellant had been caught, but did not draw anything more from the evidence than the fact that there had been no further offences.

15 The trial Judge took into account the character references that had been provided in relation to the appellant Yazdani, but reiterated her view that circumstances personal to the appellants would not be of as much weight in the sentencing process as the need for personal and general deterrence.

16 The trial Judge referred to Yazdani's prior record which included a number of previous convictions for minor offences, which caused her to conclude that, prior to the offence, he was not a man of previous good character.

17 The trial Judge further found, from the evidence which had been adduced of the telephone conversations, that the appellant Yazdani was in a dominant role compared with the offender Chopra, and for that reason it was appropriate to distinguish between their relative culpability. It was her view that the appellant Yazdani was the person with the connection to a supplier of illicit drugs, whereas the role of Chopra was retail distribution to purchasers.

18 In the case of the appellant Yazdani, the trial Judge then gave consideration to a submission that the forfeiture of his interest in a property which had been purchased in Northbridge was a factor which should be taken into account in mitigation of penalty. After reviewing the evidence that had been adduced in relation to the acquisition of that property, she concluded that it would not be appropriate to give weight in mitigation to the forfeiture of that interest.

19 Before passing sentence, her Honour made specific reference to the decision of the High Court in Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1 and to the proposition that the sentence should take into account the content, duration and reality of the conspiracy.

20 Her Honour further recorded that neither appellant had shown any remorse and reiterated that:

"The intercepted telephone conversations show enthusiastic and determined drug dealing on their part with no concern at all for the fact that they were putting prohibited drugs into the community in very large quantities."

21 The grounds of appeal are in each case identical - namely, that the sentences imposed were manifestly excessive in all the circumstances including a number of specified mitigatory factors that it was said should have been taken into account, and secondly, alleged contravention of the totality principle by the total accumulation of the sentences imposed on counts 2 and 3 with the sentence imposed upon count 1.

22 In support of those grounds, reliance was placed upon the accumulation of a number of considerations, including:

(a) the fact that each appellant was convicted of the offence of conspiracy, rather than the substantive offence of selling prohibited drugs;

(b) the fact that, on the evidence, the conspiracy the subject of count 1 had not been consummated or carried forward into effect;

(e) the steps which each appellant had taken by way of rehabilitating themselves between the laying of the charges and their conviction;

(f) the personal circumstances of each appellant; including the evidence as to their character.

23 It is appropriate to again record the well-known principles which govern appeals against sentence of this type. They are conveniently summarised in the judgment of Roberts-Smith JA in Readhead v The State of Western Australia [2005] WASCA 191:

"There is a strong presumption that the sentence appealed from is correct. An appeal court cannot interfere unless the appellant demonstrates error of law or fact. That may be because the sentencing Judge acted upon a wrong principle or gave weight to extraneous or irrelevant matters, or failed to give weight, or sufficient weight, to relevant matters or made a mistake as to some relevant fact (House v The King [1936] HCA 40; (1936) 55 CLR 499; Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509; R v Tait (1979) 24 ALR 473). Absent any identifiable specific error, a sentence will be set aside if it is so excessive, inadequate or inappropriate as to necessarily indicate there has been an error, otherwise undiscoverable, in the sentencing process. An appellate court may not set aside a sentence merely because it would have exercised its discretion in a different way. Error must be shown in one of the ways I have mentioned (Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 - 672)."

24 Having regard to this uncontroversial principle of law, a fundamental difficulty for each appellant in this case is the fact that each of the various factors to which they point have clearly and expressly been taken into account by the trial Judge at the time of passing sentence. At that time, she undertook a careful review of the circumstances of the offences, and of all the matters said to be mitigatory of penalty, including all the matters that were put in argument before us. No error of fact or principle is evident in the approach which she took, nor was any specifically identified in argument before us. It follows that the appeals can only succeed if it is established that the sentences imposed, either individually or cumulatively, having regard to the totality principle, were so excessive as to necessarily indicate error.

25 No error is apparent in the approach taken by the trial Judge to the accumulation of the sentences, unless the totality principle would require another approach. The sentences imposed on the second and third counts were ordered to be served concurrently, which is appropriate having regard to the fact that they were committed as part of the same transaction (see, for example, Johnston v The Queen, unreported; CCA SCt of WA; Library No 960153; 22 March 1996). Conversely, because the first and second conspiracies were separate offences committed on separate occasions involving separate transactions, unless the accumulation of the sentences imposed in respect of those offences would infringe the totality principle, the accumulation of the sentences was appropriate: see Ward [1999] WASCA 157; (1999) 109 A Crim R 159 per Malcolm CJ at [9]. In essence therefore, it seems to me that each appeal comes down to the question of whether the sentences imposed by the trial Judge can be regarded as manifestly excessive or in contravention of the totality principle, having regard to the range of sentences appropriately imposed for offences of this type, the circumstances of these particular offences, the circumstances of these offenders, and the mitigatory factors which have been identified in argument.

26 Turning first to the range identified in previous decisions of this Court as being appropriate for sentences of this kind, a number of previous decisions were cited to us in argument. In Scott v The State of Western Australia [2006] WASCA 28, a sentence of 3 years' imprisonment (imposed after the transitional provisions came into effect), following a conviction of conspiracy to possess methylamphetamine with intent to sell or supply, was reduced to a period of 2 years' imprisonment on appeal. The quantity of methylamphetamine, the subject of the conspiracy, was substantial - approximately two kilograms. However, the circumstances of that case were very different to the present cases. The offender's involvement in the conspiracy was described on appeal as "very slight". She was not involved in the initial discussions of her two co-conspirators, when they arranged to acquire the drug. She was not involved in the planning or setting up of the transaction in any way other than the provision of her credit card details to enable the drug courier to hire a vehicle to be used for the purpose of conveying the drugs. Her co-conspirators each received terms of 7 years' imprisonment (equivalent to 101/2 years' imprisonment prior to the commencement of the transitional provisions). There had been a delay of approximately 4 years between apprehension and trial, part of which period had been used by the offender to undertake a step towards rehabilitation by ending her relationship with her co-offender. In the view of the majority of the Court, delay of that magnitude would not, of itself, have been a mitigatory factor, other than the fact that the time was used to provide evidence of rehabilitation. Having regard to the circumstances of that case, and the very limited involvement of the offender in the conspiracy, and taking account of the sentences imposed upon her co-conspirators, there is nothing in that case that would support the proposition that the sentences imposed in these cases were outside the range applicable to offences of this type. Nor is there anything in the observations of the Court in that case that would suggest the approach taken by the sentencing Judge in these cases to the issue of delay was inappropriate or erroneous in principle.

27 We were also referred to the decision in Collard v The State of Western Australia [2004] WASCA 297. In that case, three persons were charged with conspiracy to sell methylamphetamine. Two pleaded guilty and one was convicted after trial. The evidence established that the three offenders were running a well-organised family business for the supply of methylamphetamine, particularly to young Aboriginal persons. The sentences imposed were derived from a starting point of 14 years' imprisonment, reduced to 13 years for the two conspirators who pleaded guilty (albeit late and in the face of a very strong prosecution case), and to 131/2 years for the conspirator who had not pleaded guilty but had nevertheless co-operated during the trial. All sentences were then reduced by one-third to take account of the transitional provisions, bringing the sentences imposed to 8 years and 8 months and 9 years respectively. Those sentences are substantially greater than the sentences imposed on these appellants. There is nothing in the decision of Collard which would suggest that the sentences imposed in these cases were outside the appropriate range.

28 The State of Western Australia v Bruce [2004] WASCA 226 was also referred to. In that case, the offender was originally convicted of a number of substantive offences of selling methylamphetamine and of possession with intent to sell or supply that drug. He was sentenced to four terms of imprisonment which were ordered to be served concurrently, giving a total sentence of 3 years and 3 months' imprisonment. He had previously been sentenced to a term of 2 years' imprisonment suspended for 2 years on his plea of guilty to a charge of conspiracy to sell methylamphetamine. In the course of an appeal by the State against that sentence, the Full Court took the view that the sentences imposed for the substantive offences were properly taken into account as they could be regarded as the manifestation of the implementation of the conspiracy. The Court also referred to the well-established principles relating to appeals by the State against sentence. Murray ACJ would have upheld the State's appeal and substituted a sentence of 4 years' imprisonment to be immediately served. However, the majority took a different view, although nevertheless agreed that, looked at on its own, the sentence imposed in respect of the conspiracy charge was manifestly inadequate. Had that sentence stood alone, their Honours (Steytler and McKechnie JJ) would have also upheld the appeal. However, because of the sentences imposed in respect of the substantive offences, and because of the adverse view of the entire Court as to the undesirable course followed by the State in separating and separately prosecuting the charge of an inchoate offence (conspiracy) from the substantive offences, their Honours were not disposed to interfere with the sentence imposed.

29 Of all the cases cited, this decision provides the strongest support for the appellants, but when regard is had to its unusual circumstances, it could not be said that it shows the sentences imposed in these cases to be outside any relevantly appropriate range. In the present cases, in respect of count 1, the sentences of 4 years and 3 years and 8 months imposed on the appellants respectively are within the range suggested by the sentences imposed on the substantive counts in Bruce. In my view, accumulation with the sentences imposed on the other counts does not take them outside that range.

30 In Sutton v The Queen [2004] WASCA 200, the offender pleaded guilty to a charge of conspiring to possess methylamphetamine with intent to sell or supply. The quantity of drug involved was 437 grams with a purity of 58 per cent. He was sentenced to 4 years' imprisonment. However, that sentence was imposed cumulatively upon another sentence of imprisonment of 9 years imposed for a similar offence, giving a total period of imprisonment of 13 years. An appeal against that sentence was dismissed. When regard is had to the inhibition which the totality principle imposed upon the period of imprisonment to be imposed in respect of the second offence, it is clear that this decision provides no support whatever for the appellants' submissions.

31 We were next referred to R v Hafner [2002] WASCA 211. In that case, the offender was convicted upon a plea of guilty of conspiracy to possess heroin with intent to sell or supply it to another and a further count of attempting to sell or supply methylamphetamine. On the first count he was sentenced to 7 years' imprisonment, and on the second count, to a period of 6 years' imprisonment to be served concurrently with the first sentence imposed. The quantities of drug involved were 244 grams of heroin with a purity of 13 per cent, and 21.2 grams of methylamphetamine with a purity of 36 per cent. Each of the sentences was, of course, imposed prior to the operation of the transitional provisions, and should therefore be deflated by one-third for the purposes of comparison to the current sentences. After reviewing a number of previous decisions, the Court concluded that the sentences imposed were lenient, but not so lenient as to justify intervention on a Crown appeal. Having regard to the fact that these sentences were imposed on a plea of guilty, even after an appropriate adjustment to take into account the transitional provisions, they are comparable to the sentences imposed in the present case. Accordingly, the decision provides no support for a submission that the sentences imposed in these cases are outside the relevantly appropriate range.

32 We were also referred to Krakouer v The Queen [1999] WASCA 147; (1999) 107 A Crim R 408. In that case the offender was convicted after trial of conspiracy to possess methylamphetamine with intent to sell or supply. The quantity involved was very substantial - 5.3 kilograms. He was also convicted of attempting to possess methylamphetamine with intent to sell or supply. On the first count he was sentenced to 16 years' imprisonment, and on the second count, 8 years' imprisonment. Those sentences must be deflated by one-third to render them comparable to the sentences imposed in these cases, but even so, there is obviously nothing whatever in those sentences that would suggest that the sentences imposed in these cases were outside the appropriate range.

33 A similar observation applies to the decision in Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107. In that case, an offender convicted after trial of possession of methylamphetamine with intent to sell or supply (the quantity involved being approximately 800 grams of high purity) was sentenced to 15 years' imprisonment. That sentence was upheld on appeal.

34 It follows that, in my opinion, none of the cases which were said to be comparable, and to which we were referred, lends any significant support to the proposition that the sentences imposed in the present case were outside the appropriate range.

35 Turning to the circumstances of the offences, we were referred in argument to the distinction between the inchoate offence of conspiracy, and the substantive offence of possession with intent to sell or supply. The maximum sentence available for the offence of conspiracy is 20 years, whereas the maximum available for the substantive offence is 25 years. However, given that the sentences actually imposed in these cases were very much at the lower end of the maximum penalty available, and having regard to the sentences imposed in other cases for conspiracy to which I have already referred, there does not seem to me to be anything in this proposition that would suggest that the sentencing Judge fell into error.

36 We were also pressed in argument with the proposition that neither of the conspiracies had in fact been consummated. However, this was a matter plainly taken into account by the trial Judge. She made a finding of fact to the effect that the second conspiracy was only aborted because of the offenders' suspicions in respect of the prospective purchaser.

37 The sentencing Judge made careful findings of fact in respect of the circumstances of the offences and none of them have been shown to be in error in any way.

38 Turning now to the circumstances of the offenders, a similar observation applies. Her Honour took account of the delay in each matter coming to trial, and carefully reviewed the assertions in respect of the evidence of rehabilitation that was said to have been provided during that period of delay. She made findings of fact on that topic which were plainly open on the evidence adduced to her. In my opinion, no error is revealed by the course taken by her Honour.

39 Finally, as I have already observed, her Honour made specific reference to each of the factors which is said to be mitigatory in respect of each appellant. There is nothing in the remarks made at the time of sentence that would suggest that she failed to take due and proper account of those factors, nor can any inference to that effect be drawn from the sentences imposed, having regard to the circumstances of the offences and the seriousness with which the Courts regard offences of this kind.

40 For these various reasons, in my opinion, no error has been established in respect of the sentences imposed. The appeals should each be dismissed.

41 McLURE JA: I agree with the Chief Justice that the appeals against sentence should be dismissed. The appellants were convicted after trial of three counts of conspiring to sell a prohibited drug to another. Count 1 concerned three ounces (85.05 grams) of amphetamine. Count 2 concerned one ounce (28.35 grams) of amphetamine and count 3 concerned 150 ecstasy tablets.

42 The sentences imposed by the learned sentencing Judge (with the equivalent pre-transitional provision sentence shown in italics) are as follows:

43 The sentences on counts 2 and 3 were ordered to be served concurrently with each other and cumulatively on count 1 resulting in a total effective sentence for Yazdani of 5 years and 8 months (8 years and 6 months) and for Chopra, 5 years and 4 months (8 years). I have included the pre-transitional sentences to facilitate consideration of comparable cases decided before the commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA).

44 Both appellants relied on the same grounds of appeal. They contended that the individual sentences for counts 1, 2 and 3 were manifestly excessive and that the total effective sentence breached the totality principle.

45 I start with the claim that the individual sentences are manifestly excessive. The appellants do not contend that a material error of fact or law can be discerned in the sentencing Judge's reasons. The appellants contend that error can be inferred solely from the fact that each sentence is manifestly excessive. Accordingly, the fact that the sentencing Judge expressly had regard to all relevant considerations is of no consequence. To determine whether a sentence is manifestly excessive it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender (Chan (1989) 38 A Crim R 337 at 342).

46 The maximum penalty for the offence of conspiring to sell a prohibited drug is 20 years' imprisonment. The maximum penalty for the substantive offence (selling a prohibited drug) is 25 years' imprisonment.

47 As to the circumstances of the offending, there was no evidence that the conspiracy the subject of count 1 had been acted upon. In relation to the conspiracy the subject of counts 2 and 3, the sentencing Judge found that it lasted only approximately 15 minutes and was not carried into effect. These matters are relevant in assessing culpability: Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1. On the other hand, the appellants only abandoned their agreement the subject of counts 2 and 3 because they became concerned as to the circumstances of the approach from what was an undercover police officer. The sentencing Judge also found that the appellants were dealing in drugs for monetary gain and, in the period of offending, were enthusiastic about selling drugs.

48 The sentencing Judge accepted that Yazdani had done good and generous deeds in his life. However, based on previous convictions for what the sentencing Judge described as minor offences in 2001 and 2002 (including wilfully misleading a police officer, possession of an unlicensed firearm, possession of a prohibited drug, possession of unlicensed ammunition and unlawful possession), she concluded that Yazdani was not a man of previous good character. The sentencing Judge also found that Yazdani had a more dominant role in the offending, he being the person with a connection to a supplier of illicit drugs whereas Chopra was involved in retail distribution to purchasers.

49 Chopra was aged 29 at the time of sentence, had no relevant prior convictions, was married with two young children and had a largely continuous history of employment.

50 The appellants also relied on the delay between the commission of the offences and trial and the efforts at rehabilitation during that period as mitigating factors. There was around 12 months between the commission of the offences and the laying of the charges and the trial was held in August 2005. In that period Yazdani commenced and continued regular employment, became involved in a committed relationship and abandoned his previous social circle. Notwithstanding this evidence, the sentencing Judge was not convinced he had turned his life around. No doubt she was influenced in this regard by her finding as to the appellants' commercial motivation and enthusiasm for the enterprise. It is not clear what (if any) further positive steps Chopra had taken towards rehabilitation in this period. As a matter of fact and principle, these matters are of no significant mitigatory effect.

51 The major sentencing considerations for the offence of conspiring to traffic in prohibited drugs are general and personal deterrence and as a consequence, mitigatory circumstances personal to an offender have correspondingly less weight: The State of Western Australia v Andela [2006] WASCA 77 at [16] and [17]. An early plea of guilty attracts a very significant discount which was not available to the appellants in this case.

52 It is against the relevant factual background in the light of these applicable principles that consideration is given to the standards of sentencing customarily observed. The appellants referred to a number of previous cases dealing with the offence of conspiracy to possess or sell prohibited drugs including Scott v The State of Western Australia [2006] WASCA 28, Collard v The State of Western Australia [2004] WASCA

297, Sutton v The Queen [2004] WASCA 200, R v Hafner [2002] WASCA 211, Krakouer [1999] WASCA 147; (1999) 107 A Crim R 408 and The State of Western Australia v Bruce [2004] WASCA 226. Those cases are discussed in detail in the reasons of the Chief Justice and it is unnecessary to repeat that material here. It is sufficient to note my agreement that, having regard to the variations in relevant factors affecting sentencing, it cannot be said that the individual sentences imposed on the appellants on each count are inconsistent with the standards of sentencing customarily observed or that they are outside the range of a sound sentencing discretion. Moreover, bearing in mind relevant differences, the sentences are not inconsistent with the range of penalties customarily imposed for the relevant substantive offences: see Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55; Wood v The Queen [2003] WASCA 16; Hollingsworth v The Queen [2004] WASCA 73; Colangelo v The State of Western Australia [2004] WASCA 294.

53 I turn now to totality. The totality principle requires a judge sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.

54 I do not accept the appellants' oral submission that the three offences were part of one transaction (as to which, see R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554) or that total concurrency was otherwise required. The question in this case is whether the total effective sentence of 5 years and 8 months for Yazdani and 5 years and 4 months for Chopra were an appropriate measure of the total criminality of the criminal conduct as a whole. Having regard to all of the circumstances, in particular the seriousness of the offences, the total quantity of drugs the subject of the conspiracies and the commercial motivation for the offending, I am satisfied that the aggregate sentences are not more than is fairly necessary to achieve all of the recognised sentencing objectives, including punishment, retribution and deterrence.

55 PULLIN JA: I have read the draft reasons prepared by Martin CJ. I agree with those reasons and have nothing to add.