Blay v The Queen
[2006] WASCA 248
•23 NOVEMBER 2006
BLAY -v- THE QUEEN [2006] WASCA 248
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 248 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:67/2005 | 9 JUNE 2006 | |
| Coram: | WHEELER JA McLURE JA BUSS JA | 23/11/06 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Appeals allowed Appellant re-sentenced | ||
| A | |||
| PDF Version |
| Parties: | MICHAEL JOHN KENNETH BLAY THE QUEEN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeals against sentences imposed for offences on Commonwealth and State indictments Commonwealth indictment contained charges for importing a trafficable quantity of ecstasy under Customs Act 1901 (Cth), and possessing ecstasy with intent to sell or supply under Misuse of Drugs Act 1981 (WA) Elements of offences on Commonwealth indictment potentially overlapped Sentencing Judge must not punish appellant twice in relation to his intent to traffic, or sell or supply, the ecstasy Failure of sentencing Judge to refer to transitional provisions under the Sentencing Legislation Amendment and Repeal Act 2003 (WA) Whether sentences imposed in relation to Commonwealth indictment were manifestly excessive Whether sentencing Judge failed properly to apply the totality principle in relation to sentences imposed for offences on Commonwealth and State indictments |
Legislation: | Criminal Code 1995 (Cth), s 11.2(1) Customs Act 1901 (Cth), s 233B(1)(b), s 235(2)(d), Sch VI Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a) Sentencing Legislation Amendment and Repeal Act 2003 (WA) |
Case References: | Barany (2000) 114 A Crim R 426 Chan (1989) 38 A Crim R 337 Damiani v The State of Western Australia [2006] WASCA 47 De Bonde v The Queen [2002] WASCA 251 Dinsdale v The Queen (2000) 202 CLR 321 F v The Queen [2005] WASCA 135 Harris v The Queen [2004] WASCA 292 House v The King (1936) 55 CLR 499 Johnson v The Queen (2004) 78 ALJR 616 Kaye v The Queen [2004] WASCA 227 Lowndes v The Queen (1999) 195 CLR 665 Markarian v The Queen (2005) 79 ALJR 1048 Mustafa (2002) 133 A Crim R 133 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v Abboud [2005] NSWCCA 251 R v Faithfull (2004) 142 A Crim R 554 R v Olbrich (1999) 199 CLR 270 R v Slatinec [1999] NSWCCA 2 Vlek v The Queen, unreported; CCA SCt of WA; Library No. 990153; 29 March 1999 Wong v The Queen (2001) 207 CLR 584 Woods v The Queen (1994) 14 WAR 341 Worthington v Western Australia (2005) 152 A Crim R 585 Mill v The Queen (1988) 166 CLR 59 Clinch (1994) 72 A Crim R 301 Dicks v Asherton (1974) 76 LSJS 150 Tulloh v The Queen (2004) 147 A Crim R 107 Jarvis v The Queen (1993) 20 WAR 201 Vaitos (1981) 4 A Crim R 238 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BLAY -v- THE QUEEN [2006] WASCA 248 CORAM : WHEELER JA
- McLURE JA
BUSS JA
- Appellant
AND
THE QUEEN
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : H H JACKSON DCJ
File No : IND 1376 of 2004, IND 189 of 2005
Catchwords:
Criminal law - Appeals against sentences imposed for offences on Commonwealth and State indictments - Commonwealth indictment contained charges for importing a trafficable quantity of ecstasy under Customs Act 1901 (Cth), and possessing ecstasy with intent to sell or supply under Misuse of Drugs Act 1981 (WA) - Elements of offences on Commonwealth indictment potentially overlapped - Sentencing Judge must not punish appellant twice in relation to his intent to traffic, or sell or supply, the ecstasy - Failure of sentencing Judge to refer to transitional provisions under the Sentencing Legislation Amendment and Repeal Act 2003 (WA) - Whether sentences imposed in relation to Commonwealth indictment were manifestly excessive - Whether sentencing Judge failed properly to apply the totality principle in relation to sentences imposed for offences on Commonwealth and State indictments
Legislation:
Criminal Code 1995 (Cth), s 11.2(1)
Customs Act 1901 (Cth), s 233B(1)(b), s 235(2)(d), Sch VI
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Result:
Appeals allowed
Appellant re-sentenced
(Page 3)
Category: A
Representation:
CACR 67 of 2005
Counsel:
Appellant : Mr J McGrath
Respondent : Mr D W L Renton
Solicitors:
Appellant : Michael Tudori
Respondent : Commonwealth Director of Public Prosecutions
CACR 68 of 2005
Counsel:
Appellant : Mr J McGrath
Respondent : Mr K P Bates
Solicitors:
Appellant : Michael Tudori
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Barany (2000) 114 A Crim R 426
Chan (1989) 38 A Crim R 337
Damiani v The State of Western Australia [2006] WASCA 47
De Bonde v The Queen [2002] WASCA 251
Dinsdale v The Queen (2000) 202 CLR 321
F v The Queen [2005] WASCA 135
Harris v The Queen [2004] WASCA 292
House v The King (1936) 55 CLR 499
Johnson v The Queen (2004) 78 ALJR 616
Kaye v The Queen [2004] WASCA 227
Lowndes v The Queen (1999) 195 CLR 665
(Page 4)
Markarian v The Queen (2005) 79 ALJR 1048
Mustafa (2002) 133 A Crim R 133
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v Abboud [2005] NSWCCA 251
R v Faithfull (2004) 142 A Crim R 554
R v Olbrich (1999) 199 CLR 270
R v Slatinec [1999] NSWCCA 2
Vlek v The Queen, unreported; CCA SCt of WA; Library No. 990153; 29 March 1999
Wong v The Queen (2001) 207 CLR 584
Woods v The Queen (1994) 14 WAR 341
Worthington v Western Australia (2005) 152 A Crim R 585
Case(s) also cited:
Mill v The Queen (1988) 166 CLR 59
Clinch (1994) 72 A Crim R 301
Dicks v Asherton (1974) 76 LSJS 150
Tulloh v The Queen (2004) 147 A Crim R 107
Jarvis v The Queen (1993) 20 WAR 201
Vaitos (1981) 4 A Crim R 238
(Page 5)
1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of McLure JA. I agree with those reasons and have nothing to add.
2 McLURE JA: The appellant appeals against his total effective sentence of 12 years' imprisonment for three drug offences. The relevant background material is detailed in the reasons of Buss JA and not repeated here unless required for an understanding of these reasons.
Commonwealth Indictment
3 I start with the two counts on the Commonwealth indictment. The appellant pleaded guilty to one count of aiding the commission of the offence of importing into Australia a quantity of ecstasy, being not less than the trafficable quantity, contrary to s 11.2(1) of the Criminal Code 1995 (Cth) and s 233B(1)(b) of the Customs Act 1901 (Cth) and one count of possession of the same ecstasy with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The maximum term of imprisonment for each of the Commonwealth offence and the State offence is 25 years' imprisonment. The sentencing Judge imposed a sentence of 6 years' imprisonment with a 3 year non-parole period for the Commonwealth offence (count 1), a term of 6 years' imprisonment for the State offence (count 2) and ordered the term for the State offence to commence upon the appellant having served 2 years of the sentence for the Commonwealth offence. That resulted in a total effective sentence of 8 years for the offences on the Commonwealth indictment.
4 There are two grounds of appeal in respect of the total sentence. They are that the sentencing Judge erred first, in ordering that the two sentences be served partly cumulatively resulting in a total sentence that was manifestly excessive and secondly, in failing to properly apply the totality principle.
5 The sentencing Judge failed to fully reveal his process of reasoning. He made no express or implied reference in his reasons to the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("Sentencing Amendment Act"). That Act required the sentencing Judge to impose a term for the State offence that was two-thirds of the term he would have imposed under the sentencing regime that applied prior to the commencement of the Sentencing Amendment Act. That Act has no application to Commonwealth offences: Kaye v The Queen [2004] WASCA 227. If the sentencing Judge complied with his statutory duty, he must have concluded that a term of 9 years' imprisonment was appropriate for the State offence under the former sentencing regime.
(Page 6)
- That conclusion is difficult to reconcile with the penalty imposed for the Commonwealth offence. It supports an inference that the sentencing Judge did not comply with the Sentencing Amendment Act. Although that is not a ground of appeal, it is to be borne in mind when considering the challenge based on manifest excess and totality.
6 Further, there is no express or implied explanation in the sentencing Judge's reasons for ordering partial cumulation. Ordinarily that may not cause a difficulty but this is not an ordinary case. The Commonwealth offences in s 233B of the Customs Act are the equivalent of the State offences in s 6(1) of the Misuse of Drugs Act. Although the Commonwealth and State offences in this case focus for Constitutional reasons on different conduct at different stages in the process of drug trafficking and have different elements, they have the same purpose, being to prevent the distribution of illicit drugs in the community. Moreover, the Commonwealth offence and the applicable penalty for it incorporates a presumption, based on quantity, that the drug is imported for trafficking purposes. The overlap with the State offence is clear: the appellant is to be punished for aiding in the importation of drugs to be used for trafficking purposes and being in possession of the same drugs for the same purpose. The propriety or desirability of bringing two charges in such circumstances was not addressed. I have reservations as to its appropriateness. Counsel for the Commonwealth was unable to refer the Court to any case in which the question has been considered. My research has located only one case where an offender has been convicted of a Commonwealth and State offence for the same drugs: R v Slatinec [1999] NSWCCA 2. In that case the sentencing Judge ordered the sentences to be served concurrently. That was not an issue in the appeal nor the subject of comment by the New South Wales Court of Criminal Appeal.
7 In my view, the relevant sentencing principles and considerations are as follows. An offender is not to be doubly punished for the same conduct: Pearce v The Queen (1998) 194 CLR 610. In sentencing for offences against s 233B of the Customs Act, the role played by the offender is a relevant factor: Wong v The Queen (2001) 207 CLR 584; R v Olbrich (1999) 199 CLR 270. Generally, the lesser the role the lesser the culpability and the lower the sentence. At the low end of the scale are offenders who act as a courier or a post box. At the high end of the scale are the principals or guiding minds of the offending. In this case the material facts of the State offence, namely taking possession of the imported drugs with the intention to sell or supply, are relevant to the appellant's role in the importation and would ordinarily be taken into
(Page 7)
- account in sentencing for the Commonwealth offence. The appellant aided the importation for the purpose of taking possession of and trafficking the drugs. Thus, he was a joint principal. If those factors were taken into account in the sentence for the Commonwealth offence, the appellant would be doubly punished if he were sentenced for the same conduct on count 2. In any event, the two offences are clearly part of a single transaction for which, aside from considerations of totality, concurrency would ordinarily be appropriate: R v Faithfull (2004) 142 A Crim R 554 at [25] - [28].
8 An appellate court is only entitled to intervene if a material error of fact of law is discerned in the sentencing Judge's reasons. Alternatively, error may be inferred if the sentence is manifestly excessive. Where there is a challenge to the total effective sentence, the relevant question is whether the total sentence offends the totality principle either because it is not a just and appropriate measure of the total criminality involved in the criminal conduct as a whole or because the total sentence is crushing (Postiglione v The Queen (1997) 189 CLR 295). The totality principle requires the total sentence imposed on an offender to bear a proper relationship to the overall criminality involved in the various offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341 at 352 per Anderson J.
9 As the sentencing Judge failed to disclose the factors he took into account in arriving at and structuring the sentences, the appellant has the significant disadvantage of not being able to identify any express errors in the reasoning. In those circumstances, and in the absence of a ground of appeal based on the inadequacy of the reasons, it is necessary to give close scrutiny to whether error can be implied from the total sentence. The total effective sentence for the offences on the Commonwealth indictment was 8 years. Having regard to the sentence for the State offence and the order for partial cumulation, that equates to a total effective sentence of 11 years under the former sentencing regime.
10 Taking into account the circumstances of the offending the subject of both counts in the Commonwealth indictment (in particular, the comparatively small quantity of pure MDMA) and the matters personal to the offender (none of which are mitigatory), a sentence of 8 years (11 years under the former sentencing regime) is disproportionate to the total criminality of the offending: Harris v The Queen [2004] WASCA 292; F v The Queen [2005] WASCA 135; De Bonde v The Queen [2002]
(Page 8)
- WASCA 251; Barany (2000) 114 A Crim R 426; Mustafa (2002) 133 A Crim R 133.
11 As the sentencing Judge erred in the exercise of his discretion, it is open to this Court to exercise its own sentencing discretion in substitution as it has the necessary materials to do so (House v The King (1936) 55 CLR 499 at 505), bearing in mind there is no challenge to the individual sentences.
12 It is artificial to sentence the appellant for the Commonwealth offence on the basis that his role was confined to acting as, or securing, a post box. As demonstrated by the facts relating to the State offence, the appellant's role in aiding the importation of the drugs was that of a (joint) principal because he was the ultimate consignee for the purpose of him trafficking the drugs. Having regard to the comparatively small quantity of pure drugs involved, the appellant's role in the Commonwealth offence, his guilty plea, matters personal to him and to the range of sentences customarily imposed for the offence, I would not disturb the sentence imposed by the sentencing Judge, being 6 years' imprisonment with a non-parole period of 3 years. However, the sentence for the State offence should be wholly concurrent because the two offences are part of the one transaction, the offences overlap and, having regard to the sentencing considerations relevant to the Commonwealth offence, the State offence does not increase the total criminality of the conduct. Accordingly, I would set aside the order for partial cumulation and in lieu thereof order that the term for the State offence be served concurrently with count 1 in the Commonwealth indictment.
State Indictment
13 Whilst the appellant was on bail for the offences on the Commonwealth indictment he again breached the Misuse of Drugs Act by being in possession of 2,498 ecstasy tablets with a gross weight of 461.7 grams having a purity ranging from 25 per cent to 32 per cent with intent to sell or supply. The appellant made a fast track plea of guilty and was sentenced for this offence at the same time he was sentenced for the offences on the Commonwealth indictment and by the same sentencing Judge. For the offence on the State indictment he received a term of 8 years' imprisonment, the term to commence upon the appellant having served 4 years' imprisonment for the offences on the Commonwealth indictment resulting in a total effective sentence of 12 years' imprisonment.
(Page 9)
14 Although the sentencing Judge made no reference to the Sentencing Amendment Act, there is no challenge to the sentence of 8 years for the offence on the State indictment which equates to 12 years under the former sentencing regime. It is at the high end of the sentencing range. The appellant contends the total sentence of 12 years for the three offences offends the totality principle. Having regard to the 8 year sentence for the offence on the State indictment and the order for partial cumulation with the Commonwealth offence, a total sentence of 12 years for the three offences equates to a total sentence of 16 years under the former sentencing regime.
15 The practical effect of the totality principle is often to arrive at an aggregate sentence that is less than that which would be arrived at by adding the appropriate terms for each offence if viewed alone. The rationale for the rule is said to be that the sentencing court may see or assume that the offender has, or will, make progress towards rehabilitation during the term of the first sentence: Vlek v The Queen, unreported; CCA SCt of WA; Library No. 990153; 29 March 1999 per Anderson J.
16 In this case the sentencing Judge wrongly concluded that the State offence on the Commonwealth indictment added to the culpability of the appellant's offending the subject of that indictment. This conclusion must have also been a factor in his determination of the total effective sentence of 12 years for the three offences. That being the case, and having regard to all relevant matters, I am of the opinion that 12 years is more than is fairly necessary to achieve all the recognised sentencing objectives including punishment, retribution and deterrence. I would set aside the order that the term of 8 years' imprisonment commence upon the appellant having served 4 years in respect of the offences on the Commonwealth indictment and in lieu thereof order that the term of 8 years is to commence upon the appellant having served 2 years in respect of the offences on the Commonwealth indictment. Thus, the total effective sentence is reduced from 12 years to 10 years' imprisonment.
17 BUSS JA: On 8 April 2005 the appellant was convicted, on his pleas of guilty, on two counts on Commonwealth indictment 1376 of 2004 and one count on State indictment 189 of 2005. On 13 April 2005 he was sentenced in respect of those offences. The appellant appeals against the sentences.
The offences on the Commonwealth indictment
18 The Commonwealth indictment is in these terms:
(Page 10)
- "1 On 6 February 2004 at Perth in the State of Western Australia [the appellant] aided the commission of an offence against paragraph 233B(1)(b) of the Customs Act 1901, in that a person known to him as Paul imported into Australia prohibited imports to which section 233B of the said Act applied, namely narcotic goods consisting of a quantity of 3,4-methylenedioxymethamphetamines (commonly known as ecstasy) being not less than the trafficable quantity applicable to that narcotic substance, contrary to subsection 11.2(1) of the Criminal Code 1995 (Cth) and paragraph 233B(1)(b) of the Customs Act 1901 (Cth).
2 AND FURTHER on 6 February 2004 at Perth in the State of Western Australia [the appellant] with intent to sell or supply, had possession of a quantity of 3,4-Methylenedioxy-N, alpha-dimethylphenylethylamine (MDMA), contrary to section 6(1)(a) of the Misuse of Drugs Act 1981."
19 Although counts 1 and 2 appear to refer to different narcotic substances, they are in fact referring to the same substance. The explanation for the different terminology is that the Customs Act 1901 (Cth) Sch VI specifies "3,4-methylenedioxymethamphetamine", whereas the Misuse of Drugs Act 1981 (WA) Sch III specifies "3,4-methylenedioxy-N, alpha-dimethylphenylethylamine (MDMA)", to refer to MDMA. In the two certificates of analysis provided by the Commonwealth, one states "MDMA is the abbreviation for the substance 3,4-methylenedioxymethamphetamine" (which is the term used in count 1) and the other states "MDMA is the abbreviation for the substance 3,4-methylenedioxy-N, alpha-dimethylphenylethylamine" (which is the term used in count 2). MDMA is commonly known as ecstasy.
20 On 13 April 2005, H H Jackson DCJ sentenced the appellant, on count 1, to a term of 6 years' immediate imprisonment, backdated to commence from 22 December 2004, with a non-parole period of 3 years. His Honour sentenced the appellant, on count 2, to a term of 6 years' immediate imprisonment, such term to commence upon the appellant having served 2 years' imprisonment on count 1. In other words, his Honour ordered that the sentence on count 2 be served partly cumulatively on, and partly concurrently with, the sentence on count 1. His Honour made a parole eligibility order in respect of count 2.
(Page 11)
The offence on the State indictment
21 When the appellant was convicted of the offences on the Commonwealth indictment he was also convicted of the offence on the State indictment, which alleged that, contrary to s 6(1)(a) of the Misuse of Drugs Act:
"On 24 November 2004 at Mount Lawley, [the appellant] had in his possession a prohibited drug, namely 3,4-Methylenedioxy-N, Alpha-Dimethylphenylethylamine (MDMA), with intent to sell or supply it to another."
22 On 13 April 2005, and at the same sentencing hearing as for the offences on the Commonwealth indictment, the learned Judge sentenced the appellant, for the offence on the State indictment, to a term of 8 years' immediate imprisonment, such term to commence upon the appellant having served 4 years' imprisonment in respect of the offences on the Commonwealth indictment. His Honour made a parole eligibility order.
The total total effective head sentence
23 The total effective head sentence for the offences on the Commonwealth and State indictments was 12 years' immediate imprisonment. The appellant will be eligible for parole after having served 10 years.
The circumstances of the offences on the Commonwealth indictment
24 In or about October 2003, the appellant, in Perth, communicated by telephone with an associate in the United Kingdom whom he knew as "Paul". During the conversations Paul informed the appellant that he was in financial difficulty and said the difficulty could be resolved by importing ecstasy into Australia. Paul indicated that he could supply the appellant with a quantity of ecstasy by sending it to an address in Australia nominated by the appellant. The appellant could sell the ecstasy and remit the proceeds to Paul.
25 The appellant then approached a female acquaintance who resided in Joondanna. She agreed to accept delivery of a parcel. The appellant obtained from the female acquaintance the name of a previous male occupant of the house, Jay Halbert. The appellant agreed to compensate the female acquaintance for her role in accepting delivery of the parcel.
(Page 12)
26 The appellant then telephoned Paul and provided details of the delivery address. A few days later Paul informed the appellant that the parcel had been sent.
27 On about 29 October 2003, the parcel arrived at the air cargo section of Perth International Airport. Customs officers seized the parcel. It was addressed to "J Halbert" and had been sent from the United Kingdom on 27 October 2003. The parcel contained 1,975 tablets with a gross weight of 414.9 grams. Analysis revealed that the tablets contained ecstasy with a purity of 5.4 per cent. The net quantity of pure ecstasy was therefore 22.4 grams.
28 On 3 November 2003, Australian Federal Police officers sent the package to the specified address in Joondanna, where it was accepted by the appellant's female acquaintance. The female acquaintance informed the appellant, by telephone, that the parcel had arrived, and later that day he attended the premises, took possession of the parcel, and opened it. The police officers arrested the appellant as he was leaving the premises with the opened parcel on the back seat of his car.
29 During an interview following his arrest, the appellant admitted that he had organised with a friend in the United Kingdom for the ecstasy to be imported, that he knew the parcel contained ecstasy, that he obtained the delivery address in Joondanna from his female acquaintance, that he had attended the address in Joondanna to collect the parcel after having received a telephone call from his acquaintance, that he took possession of the parcel, opened it and placed it in his car, that he intended to sell the ecstasy to a dealer he knew for $25 per tablet, and that he was to retain $3 per tablet for his own benefit and send the balance to his friend in the United Kingdom.
30 The appellant was on parole when he committed the offences on the Commonwealth indictment. The offences for which he was on parole were selling prohibited drugs and possession of prohibited drugs with intent to sell or supply. The appellant had been sentenced to 6 months' immediate imprisonment and 2 years and 6 months' immediate imprisonment respectively, in respect of those offences, to be served concurrently, from 12 November 2002.
The circumstances of the offence on the State indictment
31 On 24 January 2004, State police officers executed a search warrant at the appellant's residence in Mount Lawley and seized 2,498 ecstasy
(Page 13)
- tablets with a gross weight of 461.7 grams. The tablets had varying degrees of purity. They ranged from 25 per cent to 32 per cent.
32 The tablets seized had characteristics as follows:
(a) 72.1 grams and 87.6 grams with a purity of approximately 32 per cent (being grey tablets bearing a "T" logo on one side and a single scoring on the other);
(b) 33.9 grams with a purity of approximately 25 per cent (being green tablets bearing a "smiley" sun logo on one side and a single scoring on the other); and
(c) 89.9 grams, 89.2 grams and 89.0 grams with a purity of approximately 31 per cent (being grey tablets bearing a "T" logo on one side and a single scoring on the other).
- The grey tablets contained approximately 4 per cent methylamphetamine.
33 The appellant admitted owning the green tablets, but denied ownership of the remainder. According to the appellant, he was holding the remainder of the tablets for another person, but he refused to disclose his or her identity or reveal any further information.
34 The appellant was on bail for the offences on the Commonwealth indictment when he committed the offence on the State indictment.
The pre-sentence report
35 A pre-sentence report obtained in relation to the offence on the State indictment provides, relevantly:
(a) "[The appellant] indicated that he had experienced a major drug lapse shortly after the completion of his most recent term of Parole and noted that the lapse initially began with a small 'taste' of heroin; however this use escalated into a daily and excessive habit of amphetamines and heroin. [The appellant] further advised that as a result of his use, he also began to deal in order to sustain his increasing habit."
(b) "It is interesting to note that [the appellant] only started to incur drug related convictions as of 2002, despite having a lengthy history of problematic substance use."
(Page 14)
- (c) "[The appellant] has a long history of poly drug use, with his drug of choice primarily being heroin. He openly acknowledged that his offending is directly linked to his use of illicit substances and the subsequent friendships he maintained to ensure a steady flow of these substances."
(d) "Ultimately [the appellant] accepted that he suffered from an entrenched addiction to illicit substances and realised that in order to relieve himself of this addiction he would need to make some fairly significant life changes."
(e) "[The appellant] presented as a dejected 31-year-old male who acknowledged the fruitless and destructive path his drug use had led him down…He displayed some insight into his offending behaviour but was unable to relate to the impact that his dealing would have had on the community. [The appellant] has displayed a propensity for serious and violent offending as evidenced by his Court History and has also displayed a rather startling inability to comply with community-based supervision."
The appellant's personal circumstances
36 The appellant was born on 6 December 1973. He was 30 years of age when he committed the offences in question. His parents separated when he was an infant. They remarried subsequently, but both divorced their new spouses. The appellant did not have a settled family environment and had never remained at one school for more than a year. He managed to complete year 10.
37 The appellant commenced living on the streets when he was 14 years of age and commenced using heroin and developed an addiction when he was 15. The appellant then entered upon a life of crime and drugs, which is reflected in his substantial and serious criminal record.
38 When he was released from custody on 20 February 2002, the appellant endeavoured, for a period, to live a crime-free and drug-free life, and began a relationship with a woman. However, he was unable to overcome his addiction. His partner used drugs. He was unable to find work, and he relapsed into his former lifestyle.
The appellant's criminal record
39 As a juvenile, the appellant committed, on numerous occasions, the offences of breaking and entering, breaking and entering with intent, and
(Page 15)
- breaking, entering and stealing. Other offences included common assault, fighting, possession of an offensive weapon, unauthorised use of a motor vehicle, possession of a prohibited drug, criminal damage, resisting arrest, stealing and escaping legal custody.
40 As an adult, the appellant has continued to commit offences including breaking and entering with intent, burglary, criminal damage, stealing, robbery whilst armed, stealing a motor vehicle, robbery in company, common assault, assault occasioning bodily harm, receiving, unlawful wounding, selling of prohibited drugs, possession of prohibited drugs with intent, and traffic offences.
The sentencing Judge's remarks
41 The learned Judge made these comments, based on the pre-sentence and antecedent reports:
" … you are now 31 years of age, single and have suffered for a long time from an entrenched drug habit, the result of which or in association with which is that you have accumulated an appalling record of criminal convictions since you were [a] teenage[r], both in Western Australia and it seems elsewhere."
42 His Honour referred to the appellant's most recent prison sentence, imposed in November 2002, for selling prohibited drugs and for possessing such drugs with intent to sell or supply. His Honour also noted that the appellant was on parole when he committed the offences on the Commonwealth indictment, and on bail for those offences when he committed the offence on the State indictment.
43 His Honour mentioned the likely profit which the appellant would have made from selling the drugs the subject of the Commonwealth indictment:
"Apparently you intended to sell it for $25 per tablet, keeping $3 for yourself and sending the balance back to the source in the United Kingdom. There [were] 1975 tablets so that the potential gain to you was almost $6000."
44 His Honour then referred to the appellant's pleas of guilty and the issue of totality:
"I note that you are entitled to a discount for your plea of guilty…The real issue in sentencing is the totality. I have already made orders for destruction and forfeiture and I have
(Page 16)
- made a declaration that you be declared a drug trafficker pursuant to the provisions of section 32A of the Misuse of Drugs Act.
Very high maximum sentences are set by parliament and they're available in respect of the three counts on the two indictments. I have been referred to the New South Wales Court of Criminal Appeal decision in Schofield which sets out various other sentencing decisions. The sentencing exercise is complicated by the issue not only of totality but also the fact that both Commonwealth and State sentencing regimes are involved and I have done my best to ensure that the various provisions of the sentencing laws are complied with."
The grounds of appeal
45 The grounds of appeal in respect of the offences on the Commonwealth indictment are that:
"1. The learned sentencing Judge erred in law by ordering the two sentences be served partly cumulatively and thereby imposed an overall sentence that was manifestly excessive in all the circumstances.
2. The learned sentencing Judge erred by failing to properly apply the totality principle.
PARTICULARS
The learned sentencing Judge was in error in that the sentence imposed:
(a) failed to adequately reflect the sentence imposed for the State offences [sic] for which the Appellant was sentenced.
(b) was not in proportion to the overall criminality involved in respect of the offences and the one offence on the State indictment."
"1. The learned sentencing Judge erred by failing to properly apply the totality principle.
(Page 17)
The learned sentencing Judge was in error in that the sentence imposed:
(a) failed to adequately reflect the sentence imposed for the two counts on the Commonwealth indictment for which the Appellant was sentenced;
(b) was not in proportion to the overall criminality involved in respect to the offence and the two counts on the Commonwealth indictment."
Statutory framework
47 At the material time, s 233B(1)(b) of the Customs Act provided, relevantly:
"(1) Any person who:
…
(b) imports into Australia any prohibited imports to which this section applies or exports from Australia any prohibited exports to which this section applies;
…
shall be guilty of an offence."
48 Schedule VI of the Customs Act specified, for MDMA, 0.5 gms as the trafficable quantity and 0.5 kg as the commercial quantity. Those amounts referred to net pure weight.
49 At the material time, the penalty for the importation of MDMA that was not less than the trafficable quantity applicable to MDMA but less than the commercial quantity, was a fine not exceeding 5,000 penalty units or imprisonment for a period not exceeding 25 years, or both: s 235(2)(d) of the Customs Act. Pursuant to s 4AA of the Crimes Act 1914 (Cth), the value of one penalty unit was $110.
50 At the material time, s 11.2(1) of the Criminal Code Act 1995 (Cth) provided:
(Page 18)
- "(1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly."
51 When count 2 on the Commonwealth indictment was committed, s 6(1)(a) of the Misuse of Drugs Act provided, relevantly:
" … a person who -
(a) with intent to sell or supply it to another, has in his possession;
…
a prohibited drug commits an indictable offence …"
- When the offence on the State indictment was committed, s 6(1)(a) of the Misuse of Drugs Act was, in substance, identical.
52 At the material time, the penalty for an offence against s 6(1)(a) of the Misuse of Drugs Act was a fine not exceeding $100,000 or imprisonment for a term not exceeding 25 years, or both: s 34(1)(a) of the Misuse of Drugs Act.
Sentencing appeals: general principles
53 The task of this Court is to determine whether there was an error made in sentencing the appellant, error being understood, in this context, as it was explained in House v The King (1936) 55 CLR 499 at 505:
"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may
(Page 19)
- not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
54 Those principles apply both to State appeals against sentence alleging inadequacy, and to appeals against sentence by offenders alleging excessiveness. See Dinsdale v The Queen (2000) 202 CLR 321, per Gleeson CJ and Hayne J at 324 - 325 [3] - [4]. An appellate court may intervene in a sentencing appeal if a material error of fact or law is apparent in the primary judge's reasons. Also, an appellate court may intervene if error may be inferred on the ground that the result is unreasonable or unjust; that is, the sentence imposed is manifestly excessive or manifestly inadequate. An appellate court may not, however, substitute its own opinion for that of the primary judge merely because the appellate court would have exercised the sentencing discretion in a manner different from the primary judge. See Lowndes v The Queen (1999) 195 CLR 665 at 671 - 672 [15].
55 The High Court has emphasised that there is no single correct sentence, and that primary Judges are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the applicable statutory regime. See Markarian v The Queen (2005) 79 ALJR 1048 at 1055 [27].
Double punishment
56 In Pearce v The Queen (1998) 194 CLR 610, McHugh, Hayne and Callinan JJ said, at 623 [40]:
"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts."
- Later, their Honours said, at 623-624 [43] - [45]:
- "The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.
Does that matter if, as was the case here, an order was made that the sentences be served concurrently?
To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality (Mill v The Queen (1988) 166 CLR 59)."
- Also see their Honours' comments at 624 [49].
The "one transaction" rule
57 The "one transaction" or "continuing episode" rule was described and considered by McLure J (as her Honour then was) in R v Faithfull (2004) 142 A Crim R 554. Her Honour said, at 558 - 559 [26] - [28], in relation to the rule:
" … It is said to apply when a number of offences 'arise out of substantially the same act, circumstances or series of occurrences' (R v Brown (1982) 5 A Crim R 404 at 407) or when there is 'one multi-faceted course of criminal conduct' (Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 93, 6 A Crim R 117 at 126) or if they are considered to be "manifestations of the one criminal enterprise, transaction or episode" (Pearce v The Queen per Kirby J).
…
… It is not a principle of law or sentencing that concurrent terms must be imposed for multiple offences constituting one transaction or a continuing episode: R v White [2002] WASCA
(Page 21)
- 112; Ruane v The Queen (1979) 1 A Crim R 284. It is a general rule, or what has been described as a 'good working rule' (Ruane) that when a number of offences arise out of the one transaction or continuing episode any terms of imprisonment are to be made concurrent. However, a sentencing Judge must in each case consider whether the application of that general rule would result in an appropriate measure of the total criminality involved in the conduct: White. If not, then the appropriate result should be achieved, if practicable, by making the sentences wholly or partially concurrent rather than by adjusting the otherwise appropriate sentence: Mill v The Queen (1988) 166 CLR 59 at 63, 36 A Crim R 468 at 470. In my assessment, this approach to the one transaction rule is consistent with the statements of principle in Pearce v The Queen. Although the offences in that case were quite clearly part of one transaction or a continuing episode for the purposes of the one transaction rule, wholly concurrent terms did (or may) not reflect the total criminality of the conduct."
The "totality principle"
58 In Postiglione v The Queen (1997) 189 CLR 295, McHugh J summarised the "totality principle", at 307 - 308, as follows:
"The totality principle of sentencing requires a judge who is 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 (see Mill v The Queen (1988) 166 CLR 59 at 63). In Kelly v The Queen ((1992) 33 FCR 536, at 541) O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi (Unreported; Court of Criminal Appeal of SA; 20 April 1988):
'There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.'
The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged (R v Holder [1983] 3
(Page 22)
- NSWLR 245, at 260). Where necessary, the court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences (Holder [1983] 3 NSWLR 245, at 260).
Recent decisions in the Court of Criminal Appeal (R v Bakhos (1989) 39 A Crim R 174; R v Harrison (1990) 48 A Crim R 197; R v Gordon (1994) 71 A Crim R 459) have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.
The most recent statement to this effect was made by Hunt CJ at CL in R v Gordon ((1994) 71 A Crim R 459, at 466):
'When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.'"
59 It is plain, from the decision of the High Court in Pearce, that where an offender is being sentenced for more than one offence, the sentencing Judge must determine an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as the question of totality. There is, however, some flexibility in the application of the principle enunciated in Pearce. See Johnson v The Queen (2004)78 ALJR 616 at 624 [26]; Markarian at 1055 [27]. In R v Abboud [2005] NSWCCA 251, Rothman J (with whom Grove and Howie JJ agreed) said, at [36]:
"It has often been stated that in sentencing an offender, an appropriate sentence must be fixed which considers all of the questions associated with the criminality of that offence. In the case of multiple sentences for multiple offences, the totality principles adumbrated by the High Court in Pearce v R (1998) 194 CLR 610 are well known and ought to be applied. I have
(Page 23)
- already referred to the flexibility which nevertheless remains in a sentencing judge and was referred to in Johnson, supra. In Johnson, the joint judgment, cites, with approval, the judgment of the High Court in Mill (see paras [18] and [19] of Johnson) and deals then with an argument that Mill and Pearce are inconsistent or internally inconsistent. The High Court makes clear that there is no inconsistency between Mill and Pearce and that each reflects the level of flexibility that must be retained by a sentencing judge in applying the principles of sentencing. Nevertheless, the approach in Mill is recognised as the orthodox approach to sentencing. It provides that a separate sentence will be imposed in relation to each separate offence, taking into account the matters that affect that sentence. It is only at the end of the process that the totality principle will be accommodated, preferably, by making the sentences wholly or partially concurrent."
60 The totality principle requires that the total effective sentence imposed on an offender bear a proper relationship to the overall criminality involved in the various offences, viewed in their entirety, having regard to all of the relevant circumstances including those referable to the offender personally and the desirability of accommodating his or her wish to rehabilitate. See Woods v The Queen (1994) 14 WAR 341 per Anderson J (with whom Malcolm CJ and Seaman J agreed) at 352.
State offences: the effect of the Sentencing Legislation Amendment and Repeal Act 2003 (WA)
61 Clause 2(1) of Sch 1 of the Sentencing Act1995 (WA) is part of the transitional provisions introduced by the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("the Amendment and Repeal Act"). The transitional provisions require that a court which has decided to sentence an offender to a fixed term of imprisonment must impose a fixed term that is two-thirds of the fixed term that would have been imposed under the law as it stood prior to the Amendment and Repeal Act.
62 In Worthington v Western Australia (2005) 152 A Crim R 585, Steytler P noted, at 592 [28], that:
" … it would have been preferable if the sentencing Judge had said that he had taken the transitional provisions into account, notwithstanding that it seems to me to be an untenable proposition that an experienced sentencing Judge should be
(Page 24)
- taken to have overlooked them merely because he did not mention them, given that they had, by the time of sentencing, been in operation for nearly eight months."
63 In Damiani v The State of Western Australia [2006] WASCA 47, McLure JA (with whom Roberts-Smith JA agreed) also accepted that a failure to make express reference to the transitional provisions is not itself an error or (necessarily) indicative of error, but it is preferable for a sentencing Judge to do so. Her Honour added, at [37]:
" … it is preferable because it ensures that the sentencing Judge is consciously alert to the fact that the legislative intention was to ensure that the changes effected by the [Amendment and Repeal Act] did not themselves result in an increase in the time offenders spent in prison. The risk of unconscious (and worse, undetectable) error, is eliminated by expressly referring to what must be done as a matter of course."
The individual sentences on the Commonwealth and State indictments
64 The appellant does not challenge the individual sentences imposed for each offence on the Commonwealth and State indictments. This is apparent from the grounds of appeal and also from par 24 of the appellant's written submissions, which reads:
"The sentences imposed in respect to the three offences, when viewed in isolation (that is, no other counts) are within the Learned Sentencing Judge's discretion (though at the higher end). However, the total sentence imposed is out of proportion to the degree of criminality involved."
Ground 1 of the appeal in relation to the Commonwealth indictment
65 Count 1 on the Commonwealth indictment alleges that on 6 February 2004, at Perth, the appellant aided another person to import into Australia prohibited imports, namely narcotic goods, contrary to s 233B(1)(b) of the Customs Act. Count 2 on that indictment alleges, in effect, that on 6 February 2004, at Perth, the appellant, with intent to sell or supply, had possession of the narcotic goods the subject of count 1, contrary to s 6(1)(a) of the Misuse of Drugs Act.
66 An offence against s 233B(1)(b) has elements which are different from an offence against s 6(1)(a) in that s 233B(1)(b) is concerned with, relevantly, the importation into Australia of, relevantly, narcotic goods,
(Page 25)
- whereas s 6(1)(a) is concerned with the possession in Australia of, relevantly, narcotic goods with intent to sell or supply.
67 There is, however, at least on the facts of the present appeal, an area of overlap between the offences charged on the Commonwealth indictment.
68 Count 1 asserts that the quantity of the narcotic goods in question was not less than the trafficable quantity applicable to those goods. A count which alleges the importation, or aiding the importation, of a trafficable quantity of narcotic goods implies a likelihood that the goods in question will, in fact, be sold or supplied. If an offender charged with such an offence intended to sell or supply the goods after their importation, that intention would be a relevant consideration in determining the appropriate sentence.
69 Count 2, which alleges the possession of narcotic goods with intent to sell or supply, necessarily alleges an intention to traffic.
70 The charging of the appellant with counts 1 and 2 on the Commonwealth indictment, in relation to the same narcotic goods, required the learned Judge to exercise particular care to ensure that the appellant was not punished twice in relation to his intent to traffic, or sell or supply, the MDMA. Unfortunately, his Honour did not, in his sentencing remarks, refer to this issue. It is therefore uncertain whether his Honour, in arriving at each individual sentence on the Commonwealth indictment and in deciding to make the sentences partly cumulative, was conscious of the necessity to avoid punishing the appellant twice in relation to the area of overlap which I have identified. Although this aspect of the sentencing process is not the subject of a discrete ground of appeal, it is relevant in determining whether his Honour's structuring of the sentences for counts 1 and 2 resulted in an overall sentence which was an appropriate measure of the total criminality involved in the conduct in question.
71 The transitional provisions introduced by the Amendment and Repeal Act applied to count 2 (a State offence), but not count 1 (a Commonwealth offence). See Kaye v The Queen [2004] WASCA 227 at [17] - [19]. The learned Judge did not, in his sentencing remarks, refer to the transitional provisions. Although, as I have mentioned, failure to refer to the transitional provisions is not, of itself, an error, it is good practice to refer to them and it should be done as of course. If his Honour had regard to the transitional provisions then it is apparent that, under the law as it
(Page 26)
- stood prior to the Amendment and Repeal Act, his Honour would have sentenced the appellant, on count 2, to a term of 9 years' immediate imprisonment. The disparity in sentencing between counts 1 and 2 on the Commonwealth indictment is, on the face of it, surprising. His Honour's sentencing remarks do not explain or justify the disparity. The grounds of appeal do not, however, allege that his Honour failed to apply the transitional provisions in relation to the sentence for count 2.
72 In Chan (1989) 38 A Crim R 337, Malcolm CJ said, at 342:
"To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by the law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender."
73 In my opinion, the total effective head sentence for the offences on the Commonwealth indictment, namely 8 years' immediate imprisonment, was not a just and appropriate measure of the total criminality involved in the enterprise which the appellant carried out.
74 It is true that the offences were serious and demanded a lengthy custodial term. The appellant had a significant and indispensable role in arranging the importation of the MDMA. Also, he intended to sell the tablets to a dealer he knew for $25 per tablet, to retain $5,925 for his own benefit and to send the balance of $43,450 to his friend, Paul, in the United Kingdom.
75 I am satisfied, however, that the learned Judge erred in ordering that the two sentences on the Commonwealth indictment be served partly cumulatively. The sentence for count 2 should have been made wholly concurrent with the sentence for count 1. I am of that opinion for two reasons. First, counts 1 and 2 were manifestations of one criminal enterprise. Secondly, there was the area of overlap between the counts which I have identified. The appellant has made out ground 1 of the appeal in relation to the Commonwealth indictment (CACR 67 of 2005).
Ground 2 of the appeal in relation to the Commonwealth indictment and the ground of appeal in relation to the State indictment
76 It is convenient to deal with these grounds together. They raise an identical issue.
(Page 27)
77 The total effective head sentence for the offences on the Commonwealth and State indictments was 12 years' immediate imprisonment. The appellant will be eligible for parole after serving 10 years.
78 I have already recounted the circumstances of the offences, the maximum penalty for each offence, the appellant's personal circumstances including his criminal record, and the learned Judge's sentencing remarks.
79 No doubt, the offences were very serious. It was an aggravating feature of the offences on the Commonwealth indictment that when the appellant committed them he was on parole for other drug offences. Also, it was an aggravating feature of the offence on the State indictment that when the appellant committed them he was on bail for the offences on the Commonwealth indictment. The appellant is no longer a very young man. He was aged 30 when he committed the offences. The appellant has an extensive and serious record of prior convictions. His prior criminal record was not, of course, an aggravating feature of the offences for which he was sentenced, but his record demonstrated that he was not entitled to any leniency for good character. The appellant was entitled to some credit for having pleaded guilty, but there was little else in his personal circumstances which was mitigatory in nature.
80 I am satisfied, however, that the learned Judge's error in ordering that the two sentences on the Commonwealth indictment be served partly cumulatively influenced his Honour's application of the totality principle to the sentences for all counts on the Commonwealth and State indictments. The total effective sentence of 12 years' immediate imprisonment exceeded what was necessary:
(a) to reflect the overall criminality of the appellant's conduct;
(b) to punish the appellant; and
(c) to give effect to important considerations of personal and general deterrence.
81 The appellant has made out ground 2 of the appeal in relation to the Commonwealth indictment (CACR 67 of 2005) and the sole ground of appeal in relation to the State indictment (CACR 68 of 2005).
(Page 28)
The appeals should be allowed and the appellant re-sentenced
82 I would allow the appeals. The sentences imposed by the learned Judge should be set aside, and the appellant re-sentenced. This Court has the necessary information and has received adequate submissions to enable it to carry out the re-sentencing. As I have mentioned, the appellant does not challenge the individual sentences imposed by his Honour.
83 As to counts 1 and 2 on the Commonwealth indictment, I would sentence the appellant to 6 years' immediate imprisonment on each count. I would fix a non-parole period of 3 years in respect of count 1 and I would make a parole eligibility order in respect of count 2. The sentence on count 2 should be served wholly concurrently with the sentence on count 1. Both sentences should commence from 22 December 2004, being the date on which the appellant was taken into custody for the offences in question.
84 As to the count on the State indictment, I would sentence the appellant to 8 years' immediate imprisonment and make a parole eligibility order in respect of that sentence. The term of 8 years should commence upon the appellant having served 2 years' imprisonment in respect of the counts on the Commonwealth indictment.
85 The overall result, therefore, is that the total effective head sentence for the offences on the Commonwealth and State indictments should be reduced from 12 years' immediate imprisonment to 10 years' immediate imprisonment.
8
25
4