Basilio v The State of Western Australia
[2010] WASCA 202
•21 OCTOBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BASILIO -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 202
CORAM: PULLIN JA
NEWNES JA
MAZZA J
HEARD: 4 OCTOBER 2010
DELIVERED : 21 OCTOBER 2010
FILE NO/S: CACR 35 of 2010
BETWEEN: VALENTINA BASILIO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GROVES DCJ
File No :IND 1096 of 2009
Catchwords:
Criminal law - Sentence - Multiple drug offences - Dealing in methylamphetamine and MDMA - Commercial dealer at high level - Whether effective term of 13 years' imprisonment infringed totality principle
Legislation:
Nil
Result:
Appeal allowed
Appellant resentenced to total effective term of 10 years' imprisonment
Category: B
Representation:
Counsel:
Appellant: Mr S Vandongen
Respondent: Mr P D Yovich
Solicitors:
Appellant: Jeremy Noble
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bahn v The State of Western Australia [2008] WASCA 40
Civello v The State of Western Australia [No 2] [2008] WASCA 163
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Roffey v The State of Western Australia [2007] WASCA 246
Sabau v The State of Western Australia [2010] WASCA 3
The State of Western Australia v Atherton [2009] WASCA 148
Tran v The State of Western Australia [2010] WASCA 38
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
PULLIN JA: I agree with Newnes JA.
NEWNES JA: This is an appeal against sentence. The appellant was convicted after trial of two counts of attempting to obtain methylamphetamine with intent to sell or supply, one count of possession of methylamphetamine with intent to sell or supply, and one count of possession of MDMA with intent to sell or supply. The appellant was sentenced to a total effective term of 13 years' imprisonment.
On 25 May 2010, Mazza J granted the appellant leave to appeal on the ground that the total effective sentence did not bear a proper relationship to the overall criminality of the appellant's conduct having regard to all the relevant circumstances, including those referable to the offender personally.
Background
Count 1: Attempting to obtain methylamphetamine with intent to sell or supply
On 19 July 2008, the appellant made an arrangement by telephone with a supplier (W) of drugs in Sydney that the appellant would send couriers to Sydney with cash in the sum of $187,000 to purchase drugs from W. The appellant contacted an associate in Perth (B) who arranged for two others (M and F) to be the couriers of the drugs. The appellant provided cash in the sum of $187,000 to B, and that evening B, M and F flew to Sydney, arriving in the early hours of 20 July 2008. That day they met W in a hotel room and exchanged the cash for the drugs. B, M and F flew back to Perth later in the day.
M and F were arrested at Perth airport. M was found to have two packages taped to his body, one containing 194 g of methylamphetamine and the other containing 332 g of methylamphetamine. F had one package containing 343 g of methylamphetamine concealed in her clothes. The total amount of the drugs found on M and F was 869 g of methylamphetamine with a purity of between 55% and 59%. B was arrested subsequently and charged with possession of methylamphetamine with intent to sell or supply.
Count 2: Attempting to obtain methylamphetamine with intent to sell or supply
Four days later, on 23 July 2008, the appellant contacted a person (P) in order to obtain 10 ounces of methylamphetamine for a person who was coming to Perth from the north of the state. The appellant lent her car to P
to facilitate the collection of the drugs for her. After leaving the appellant's house P travelled to a house in Canning Vale and was subsequently apprehended. When searched P was found to have on him, amongst other things, five snap lock bags containing 139 g of methylamphetamine with a purity of between 34% and 37%.
Count 3: Possession of methylamphetamine with intent to sell or supply
Count 4: Possession of MDMA with intent to sell or supply
Shortly after P's arrest, police executed a search warrant at the house occupied by the appellant in Yangebup. There police found 17.7 g of methylamphetamine with a purity between 39% and 58%. They also found 6.86 g of MDMA tablets, scales bearing traces of MDMA and methylamphetamine, a quantity of snap lock bags, a vacuum sealer, a glass smoking pipe, and $18,440 in cash.
The appellant was convicted after trial on all four counts.
Sentencing remarks
The sentencing judge found that the appellant was not a street level dealer who was supporting her own habit but was at the top end of a supply chain in Western Australia. The appellant was a commercial dealer at a very high level.
In relation to the appellant's personal circumstances, his Honour noted that the appellant was 32 years of age at the time of the offending. She had become addicted to methylamphetamine several years previously, following the death of her paternal grandmother to whom the appellant was very close, and as a result of her addiction the appellant had accumulated debts which led her to dealing in drugs. The appellant has three children. She has one child, who was 3 years of age at the time of sentencing, with her current partner and two other children, aged 11 and 14 respectively at the time of sentencing, from a previous relationship. The appellant had sole responsibility for the care and upbringing of the two older children. His Honour observed that it was proposed that the care and upbringing of the youngest child would be shared between the child's father (who works on a shift basis out of Perth for 50% of the time) and the appellant's parents, and the two older children would live with the appellant's parents.
The appellant had no prior convictions for dealing in drugs. She had a conviction in September 2006 for possession of a smoking utensil for which a fine of $150 was imposed, and a conviction in July 2009 for possession of methylamphetamine for which a fine of $500 was imposed.
The sentencing judge found that an aggravating factor in respect of counts 1 and 2 was that the appellant had involved others in her attempts to obtain methylamphetamine, and that in respect of count 2 the appellant had persisted in attempting to obtain drugs some three days after she had learned that M and F had been arrested on their return from Sydney.
The sentencing judge sentenced the appellant to a total effective term of 13 years' imprisonment as follows:
| Count | Date | Offence | Description | Sentence |
| 1 | 19 July 2008 | Attempted possession of methylamphetamine with intent to sell or supply | 869 g at 55% to 59% purity | 10 years |
| 2 | 23 July 2008 | Attempted possession of methylamphetamine with intent to sell or supply | 139 g at 34% to 37% purity | 6 years, concurrent with count 1 |
| 3 | 23 July 2008 | Possession of methylamphetamine with intent to sell or supply | 17.7 g at 39% to 56% purity | 3 years, cumulative on count 1 |
| 4 | 23 July 2008 | Possession of MDMA with intent to sell or supply | 6.86 g | 2 years, concurrent with count 1 |
The sentences were to commence from 3 February 2010 and the appellant was made eligible for parole.
Disposition of the appeal
The appeal turns on the first limb of the totality principle; that is, whether the total effective sentence bears a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].
It is well‑established that an appellate court may not interfere merely because it would have imposed a sentence different to that of the sentencing judge. It may interfere only where it is shown that the sentencing judge has failed properly to exercise his or her discretion: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].
In assessing whether an aggregate sentence is disproportionate to the overall offending it is necessary to have regard to sentences imposed in comparable cases so that a judgment can be made as to whether the sentence in question is broadly in line with sentences customarily imposed in this jurisdiction. But in making such comparisons the significant variations in relevant sentencing factors must always be borne in mind. See Sabau vThe State of Western Australia [2010] WASCA 3 [18] and The State of Western Australiav Atherton [2009] WASCA 148 [126]. Ultimately, each case must depend upon its own particular facts and circumstances.
On the appeal, counsel for the appellant referred to the extensive review of the cases carried out by Buss JA in Atherton but relied, in particular, on the decisions of this court in three cases - Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107; Bahn vThe State of Western Australia [2008] WASCA 40; and Atherton. As counsel observed, there have been no decisions of this court since Atherton which are comparable with the present case.
In Tulloh, the offender was convicted after trial of possession of a total amount of 805 g of methylamphetamine, having an overall purity of approximately 60%, with intent to sell or supply it. He had minor prior convictions for cultivation of cannabis and possession of an offensive weapon. He was sentenced, under the pre‑transitional provisions, to 15 years' imprisonment. His application for leave to appeal against that sentence was refused. For comparison purposes, the sentence must be reduced by one‑third to 10 years.
In Bahn, two offenders pleaded guilty to charges of conspiring to sell 2 kg of methylamphetamine, offering to sell 10,000 tablets of MDMA and supplying 1011 g of heroin (a drug comparable for sentencing purposes to methylamphetamine) of 18% to 26% purity to another person. One of the offenders pleaded guilty to a further charge of supplying a sample of heroin. Both were sentenced to a total effective term of 10 years' imprisonment. Their appeals against sentence were dismissed.
In Atherton, the offender had been convicted after trial of nine counts of possession of a variety of prohibited drugs with intent to sell or supply. The drugs involved were as follows:
Count 1142.2 g of methylamphetamine of 9% ‑ 10% purity
Count 2855.4 g of methylamphetamine of 8% ‑ 13% purity
Count 350.4 g of cannabis
Count 4133 g of cannabis
Count 5353 g of cannabis
Count 6About 3,000 MDMA tablets of total weight 665 g and 28% purity
Count 7342 g of MDMA in powder form of 9% purity
Count 828.7 g of methylamphetamine of 19% ‑ 33% purity
Count 931.77 g of MDMA of 28% ‑ 30% purity
A total effective term of 8 years' imprisonment imposed by the sentencing judge was set aside on a state appeal and instead a term of 11 years' imprisonment was imposed by the Court of Appeal.
It was submitted on behalf of the appellant that the level of criminality in Atherton exceeded the present case. In that case, the total offences took place over a longer period of time (a period of some 18 months) than the present case and there was a higher level of sophistication involved, including the installation of security sensors at the offender's premises. Although the amount of pure methylamphetamine in the present case is greater, in Atherton there were, in addition to the methylamphetamine, substantial quantities of other drugs - approximately a kilogram of MDMA and half a kilogram of cannabis. The offender in that case also had $200,000 in his possession in addition to the drugs. A significant aggravating feature of his offending was that he had committed the offences in counts 8 and 9 some months after he had been arrested in relation to the offences which were the subject of counts 1 ‑ 7 and while he was on bail. Counsel submitted that in Atherton the offender was operating at a significantly higher level of sophistication and seriousness.
Counsel for the respondent referred to Tran vThe State of Western Australia [2010] WASCA 38, where the offender had arranged for a courier to travel to Sydney to collect a quantity of methylamphetamine. The courier was arrested on her return with 27.3 g of methylamphetamine with a purity of 33%. The following month the appellant arranged for another courier to undertake the same task. That courier was also arrested on her return, on this occasion with 132 g of methylamphetamine with a purity of 70%. The appellant was convicted after trial on two counts of attempting to possess methylamphetamine with intent to sell or supply. In addition, the appellant pleaded guilty to one count of possession of methylamphetamine with intent to sell or supply (37.013 g), one count of possession of cannabis with intent to sell or supply (60 large and 125 small plants) and one count of possession of heroin with intent to sell or supply (41.4 g). An appeal against a total effective sentence of 9 years' imprisonment, described as 'heavy', was dismissed.
It is also appropriate to mention Civello vThe State of Western Australia[No 2] [2008] WASCA 163, where the offender had been convicted after trial on three counts of possession of methylamphetamine with intent to sell or supply. The drugs weighed 381 g in total (excluding 156 g at 0.3% purity which was accepted to be a cutting agent) and the weight of pure methylamphetamine was about 220 g. The offender was found to be one step removed, at most, from the manufacturing process and very high in the drug hierarchy. An appeal against a total effective sentence of 10 years' imprisonment, described as 'relatively severe', was dismissed.
In this case, the appellant's offending was undoubtedly very serious. It is apparent from the quantity of drugs involved, their level of purity, and the substantial amounts of cash to which the appellant had access, that the appellant was a commercial dealer at a high level. The overall quantity of drugs involved, taking into account their purity, was greater than in Bahn, Tran (albeit, that case involved a greater range of drugs) and Civello. The quantity of pure methylamphetamine was comparable with the quantity in Tulloh. The overall quantity of pure methylamphetamine in the present case was greater than in Atherton, but in Atherton the offending involved a number of different types of drugs, the offending occurred over a longer period, and some of the offending occurred while the offender was on bail for earlier offences.
In my respectful opinion, having regard to the maximum penalty for these offences, the comparable cases (both those specifically referred to above and other cases canvassed by Buss JA in Atherton), and the circumstances of this offending, the total effective sentence imposed by the sentencing judge exceeded a sound discretionary range. I would therefore allow the appeal and set aside the sentences.
Re‑sentencing the appellant
It is then necessary to re‑sentence the appellant. I would not disturb the individual terms of imprisonment on each count imposed by the sentencing judge or the appellant's eligibility for parole. In my view, an appropriate sentence would be achieved by setting aside the order on count 3 that the sentence be served cumulatively with the sentence on count 1 and ordering that the sentence on each of counts 2, 3, and 4 be served concurrently with the sentence on count 1. The total effective term is therefore 10 years' imprisonment commencing on 3 February 2010. The appellant will have to serve 8 years of that term before being eligible for parole.
MAZZA J: I agree with Newnes JA.
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