Bechara v The Queen - [2001] WASCA 330

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BECHARA -v- THE QUEEN [2001] WASCA 330

CORAM: MALCOLM CJ
WALLWORK J
ANDERSON J

HEARD: 17 SEPTEMBER 2001

DELIVERED : 31 OCTOBER 2001

FILE NO/S: CCA 50 of 2001

BETWEEN: ANTOINE BECHARA
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Heroin - Supplying - Single count - Two packages seized - Applicant's fingerprints on smaller package only - Insufficient proof that applicant supplied larger package - Trial Judge sentencing on basis that verdict applied to both packages - Sentence of 13 years expressly based on total quantity seized - Whether sentence should be reduced to reflect supply of lesser amount only - Sentence reduced to 10 years

Legislation:

Misuse of Drugs Act 1981 (WA)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Applicant: Mr M T Trowell QC & Mr S M Davies
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Mangan Ey & Associates
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Quach v The Queen [1999] WASCA 210
R v Cottrell (1989) 42 A Crim R 31

Case(s) also cited:

"S" v The Queen [2000] WASCA 34
Bresnehan v The Queen (1992) 1 Tas R 234
Forbes v The Queen, unreported; CCA SCt of WA; Library No 950226; 20 February 1995
Langridge v The Queen (1996) 17 WAR 346
Lowndes v The Queen (1999) 195 CLR 665
R v Kingswell (1985) 159 CLR 264
R v Marchesano & Marchesano (1992) 61 A Crim R 372
R v Martin [1981] 2 NSWLR 640
R v Ruich [2000] WASCA 84
R v Stehbens (1976) 14 SASR 240

MALCOLM CJ: In my opinion this application for leave to appeal against sentence should be granted, the appeal allowed and the sentence of imprisonment for 13 years set aside and substituted by a sentence of imprisonment for 10 years. I have reached that conclusion for the reasons to be published by Anderson J with which I agree.
WALLWORK J: I agree with the reasons for judgment of Anderson J and to the conclusions which have been reached by his Honour. There is nothing I wish to add.
ANDERSON J: The applicant was presented for trial in the District Court in March of this year on an indictment containing two counts charging offences under the Misuse of Drugs Act 1981 (WA), they being that:
"(1)On 7 July 1998 at Carlisle [he] sold or supplied a quantity of a prohibited drug, namely heroin, to another.
(2)AND FURTHER that on the same date and at the same place [he] sold or supplied a quantity of a prohibited drug, namely cocaine, to another."
He was convicted after trial of the first count and acquitted of the second. He was sentenced to 13 years' imprisonment with eligibility for parole.
The Crown case was that the applicant had supplied the heroin and the cocaine to two men, one Henning and one Mancini, to enable them to make a sale of these drugs to an undercover policeman.
According to the Crown case, the details of the transaction were as follows.
On 30 June 1998, an undercover policeman met Henning and Mancini and asked them to supply him with a pound of heroin and an ounce of cocaine. They agreed to do so for a price of $110,000, but would need a few days to procure the drugs. It was the Crown case that a meeting was arranged between Henning and the undercover policeman on 7 July at which the undercover policeman gave Henning $50,000 in a black backpack as part‑payment. The serial numbers of the notes had been recorded. No drugs changed hands. Henning took the backpack to Mancini's business premises in Carlisle and left. The applicant then

arrived at those premises in a car carrying three other people. There was evidence that the applicant had flown to Perth that morning from Adelaide where he lives. All four people alighted from the car and Mancini was seen to greet the applicant and one of the other three. The surveillance evidence as to the movements of the five people is a little unclear, although it reasonably plainly appears from the cross‑examination of the surveillance officer that he noted in his log at the time that all five went into the premises and that at one point the applicant came out of the premises alone and looked about, using a pair of binoculars. This visit lasted about five minutes. All four departed in the same vehicle. A few minutes after they left, Henning came back to Mancini's premises. He went in and then emerged from the premises a few minutes later with the backpack. A few minutes after that, he telephoned the undercover policeman and told him that he "had the gear". The two of them, that is Henning and the undercover policeman, met at the National Bank car park on Beaufort Street, Mount Lawley. The purpose of this meeting was for Henning to show the undercover policeman that he had the quantity of drugs that had been ordered and for the undercover policeman to pay the balance of the purchase price, that is, $60,000.

There was evidence that the undercover policeman got into Henning's car and was shown the contents of the backpack, which appeared to comprise some packages. He then left the car, ostensibly to get the balance of the purchase price. Other police were in attendance and took Henning into custody. Mancini was also in the vicinity and he, too, was arrested.
There was evidence that the backpack contained three packages. One of these packages contained 325 grams of heroin. The second package contained 95.8 grams of heroin. The third package contained 24.9 grams of cocaine. The total weight of heroin, 420.8 grams, is about one pound. The total weight of cocaine, 24.9 grams, is about one ounce.
These events occurred at around 3 pm, at which time the applicant was not observed in the vicinity. However, at about 4 pm a surveillance officer saw the applicant leaving a car park on Beaufort Street directly opposite the National Bank car park. The applicant was followed to the airport, where he was observed to board an aeroplane bound for Adelaide. He was arrested on that plane and found to be in possession of $10,000 in his left shoe. The notes making up that parcel of money were notes comprising the $50,000 that had been handed to Henning by the undercover policeman. I observe in passing that the evidence was that the remainder of the $50,000 was never located. The applicant could give no satisfactory explanation for his presence at or near the transaction point in Beaufort Street.
In addition to that evidence, there was evidence that the applicant's fingerprints were found on the packaging which contained the smaller quantity of heroin. His fingerprints were not identified on the packaging which contained the larger quantity of heroin nor on the packaging containing the cocaine.
The manner of packaging is of some significance and must be described.
The smaller quantity of heroin was packaged as follows. From outside in, there was first a clear plastic bag which was heat‑sealed. Within that plastic bag was another clear plastic bag, also heat‑sealed. Within that bag there was a Glad snap‑lock plastic bag. Within that bag there was another Glad snap‑lock plastic bag which contained the heroin.
The applicant's fingerprints were found on the inner of the two heat‑sealed bags and on the outer of the two Glad snap‑lock bags.
In sentencing the applicant, the learned trial Judge, Commissioner Reynolds, acted on the basis that the applicant had been found guilty of supplying all of the heroin, that is, both the larger and the smaller parcel.
This was a circumstantial case and the jury were obviously not satisfied that the circumstances proved the applicant's guilt with respect to the supply of cocaine. Hence his acquittal on that charge. Mr Trowell QC submitted that the circumstantial evidence was no stronger in the case against the applicant with respect to the larger of the two parcels of heroin. Therefore, the jury's verdict must be understood as referable only to the smaller of the two parcels and the applicant should have been sentenced accordingly.
The crucial evidence against the applicant was the fingerprint evidence. That evidence conclusively connected the applicant to the smaller quantity of heroin. The fingerprint evidence, together with evidence of the applicant's movements and the finding of $10,000 in his shoe immediately after the transaction, was ample proof of his guilt with respect to that parcel.
However, the evidence left open as a reasonable hypothesis that Henning and Mancini had more than one supplier with respect to this total consignment. Indeed, this must be the explanation for the jury's acquittal in respect to the cocaine. Obviously, the jury was not satisfied beyond reasonable doubt that the applicant had supplied the cocaine. The question is whether the circumstantial case against the applicant with respect to the larger parcel was any stronger. I think it was, but that it was not so strong as to preclude as a reasonable hypothesis the hypothesis that the larger parcel had been supplied by someone else.
The larger parcel of heroin was packaged in almost the same way as the smaller parcel, but not exactly. The larger parcel comprised a heat‑sealed clear plastic bag, within which was a Glad snap‑lock bag, within which was another Glad snap‑lock bag, within which was the heroin. The only difference in packaging is that whereas two heat‑sealed bags were used to contain the smaller quantity, only one heat‑sealed bag was used to contain the larger quantity. That is not a very striking distinction, but it nevertheless does raise a question as to whether the packaging was done at the one time by the one person. Glad snap‑lock bags were used to wrap both quantities, but there was evidence that Glad snap‑lock bags are widely available.
The manner in which the consignment was divided also tends to suggest that different suppliers were involved, at least initially. There is no obvious explanation why the same person would make up one parcel of 325 grams and one parcel of 95.8 grams. Even if the total heroin delivery was split for ease of concealment or for some such reason as that, it is to be expected that two (or more) parcels of about the same size would have been made up if the same person was supplying the total quantity.
In a number of respects, the two quantities of heroin were strikingly similar, but they were, in two respects, distinctly different. The larger quantity was in the form of a single compressed block (although with some crumbling), whereas the smaller quantity was in a powder form. This is apparent from the photographic exhibits 5(a) to (d) and 7(a) to (f) respectively. It was also the evidence of the arresting officer, Detective Sergeant Squirres, at AB 54. This, of itself, tends to suggest they had a different origin from within the supply chain.
Secondly, the certificates of analysis show that the chemical composition of both quantities was identical, but with one important difference. The larger quantity contained the substance codeine but the smaller quantity did not. This also tends to suggest that the two quantities had a different origin.
It is not in dispute that $10,000 was well short of full payment for the smaller quantity of heroin. Evidence that the applicant was still hanging about the scene at 4 pm is explicable on the basis that he was waiting for final payment for the smaller parcel. It is probably true that Henning and Mancini could have paid in full for the smaller parcel from the down‑payment of $50,000, but if other suppliers were involved, that may not have suited those other suppliers. It is not unreasonable to think that the other suppliers (if any) would insist on a pro rata distribution from each payment.
In my opinion, the evidence as a whole leaves reasonably open the hypothesis that Henning and Mancini had put together the order placed by the undercover policeman from three different suppliers.

Sentence

As to the sentence of 13 years' imprisonment, the question is whether that should be reduced on account of the fact that it was expressly based on a quantity of 420.8 grams, rather than 95.8 grams.
In my opinion, the sentence imposed by Commissioner Reynolds was the right sentence if the applicant was to be sentenced with respect to the total quantity of heroin. On the basis that the applicant supplied only about a quarter of the total consignment, I think 13 years is beyond the range of sentences considered appropriate in cases such as R v Cottrell (1989) 42 A Crim R 31 at 36 and Quach v The Queen [1999] WASCA 210. In the latter case, the Court of Criminal Appeal held that the appropriate sentencing range for an approximate weight of 600 to 700 grams (with a purity between 55 per cent to 65 per cent) is 11 to 15 years in a contested case - that is, where no discount is given for a plea of guilty. In R v Cottrell the appropriate sentencing range for an approximate weight of 100 grams with a purity in excess of 50 per cent was considered to be between 7 to 10 years. In that case, there was a plea of guilty to a charge of importing 123.4 grams of heroin of 73 per cent purity. A sentence of 8 years was imposed after a Crown appeal.
In this case, there was no plea of guilty. The applicant was rightly described by Commissioner Reynolds as a courier near the top of the chain of supply and at a higher level than Henning. Henning pleaded guilty and was sentenced to 8 years' imprisonment, but, of course, he was sentenced on the basis of his implication in the total consignment, including the cocaine.
Taking all of these matters into account, I would reduce the applicant's sentence by 3 years to one of 10 years' imprisonment. This reduction is intended to reflect the difference between the quantity upon which Commissioner Reynolds sentenced the applicant and the quantity upon which, in my respectful opinion, the applicant should have been sentenced. In no other respect can any fault be found with Commissioner Reynolds' sentencing reasons. In particular, all proper allowances appear to have been made for matters personal to the applicant, which, in any event, cannot carry much weight in drug trafficking cases where the drug involved is heroin.