Ciobanu v The Queen
[2003] WASCA 229
•25 SEPTEMBER 2003
CIOBANU -v- THE QUEEN [2003] WASCA 229
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 229 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:214/2002 | 4 JUNE 2003 | |
| Coram: | MALCOLM CJ MURRAY J ANDERSON J | 25/09/03 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | RODEL MARIN CIOBANU THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Application for leave to appeal against sentence Whether sentence imposed for possession of heroin with intent to sell or supply was manifestly excessive Quantity of drugs possessed 1.05 kilograms with estimated street value of $1,000,000 |
Legislation: | Misuse of Drugs Act 1981 (WA), s 34(1)(a), s 24(1) |
Case References: | Cameron v The Queen (2002) 209 CLR 339 Cardile v The Queen [2003] WASCA 72 Darwell v The Queen (1997) 94 A Crim R 35 Grimwood v The Queen [2002] WASCA 135 Heryadi v The Queen (1988) 98 A Crim R 578 Lowndes v The Queen (1999) 195 CLR 665 Musarri v R, unreported; CCA SCt of WA; Library No 980662; 17 November 1998 Pearce v The Queen (1998) 194 CLR 610 Quach v R [1999] WASCA 210 Radebe v The Queen [2001] WASCA 254 Veneziani v The Queen [2001] WASCA 246 Wong v The Queen (2001) 207 CLR 584 "S" v R [2000] WASCA 34 Bishop v The Queen [2003] WASCA 34 R v Olbrich [1999] 199 CLR 270 R v Peterson [1984] WAR 330 R v Tait (19790 45 FLR 386 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : CIOBANU -v- THE QUEEN [2003] WASCA 229 CORAM : MALCOLM CJ
- MURRAY J
ANDERSON J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Application for leave to appeal against sentence - Whether sentence imposed for possession of heroin with intent to sell or supply was manifestly excessive - Quantity of drugs possessed 1.05 kilograms with estimated street value of $1,000,000
Legislation:
Misuse of Drugs Act 1981 (WA), s 34(1)(a), s 24(1)
Result:
Appeal dismissed
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Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr J Mactaggart
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cameron v The Queen (2002) 209 CLR 339
Cardile v The Queen [2003] WASCA 72
Darwell v The Queen (1997) 94 A Crim R 35
Grimwood v The Queen [2002] WASCA 135
Heryadi v The Queen (1988) 98 A Crim R 578
Lowndes v The Queen (1999) 195 CLR 665
Musarri v R, unreported; CCA SCt of WA; Library No 980662; 17 November 1998
Pearce v The Queen (1998) 194 CLR 610
Quach v R [1999] WASCA 210
Radebe v The Queen [2001] WASCA 254
Veneziani v The Queen [2001] WASCA 246
Wong v The Queen (2001) 207 CLR 584
Case(s) also cited:
"S" v R [2000] WASCA 34
Bishop v The Queen [2003] WASCA 34
R v Olbrich [1999] 199 CLR 270
R v Peterson [1984] WAR 330
R v Tait (19790 45 FLR 386
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1 MALCOLM CJ: This was an application for leave to appeal against sentence. On 29 May 2002, the applicant was convicted on his plea of guilty plea of possession of a quantity of heroin with the intent to sell or supply to another. The quantity of the drug was 1.05 kilograms. On 27 June 2002 the learned sentencing Judge, Kennedy DCJ, sentenced the applicant to a term of 10 years' imprisonment. Her Honour reached this total by starting with the maximum penalty for an offence of possession of heroin being 25 years under s 34(1)(a) of the Misuse of Drugs Act 1981 (WA) ("Misuse of Drugs Act"). Under s 33 of the Act, the maximum penalty for an attempt to sell or supply is half of the 25 years, namely, 12½ years' imprisonment.
2 The learned sentencing Judge then said:
"Looking at the matter overall, it's extremely serious. The only thing that would suggest that the starting point should not be the 12 and a half years – and 12 and a half years is the maximum that can be imposed upon you – is that you have lived a good life in this community until very recently; you have pleaded guilty and saved the state a trial, and given the difficulties, to some extent, I think we can take it back from the 12 and a half years and I take into account how you tried to get your life in order, the fact that you pleaded guilty, the fact that you do have these little children, but in all the circumstances you are sentenced to 10 years' imprisonment."
3 Her Honour then made an order for parole and the sentence was directed to commence on 29 May 2002, being the date on which the applicant was taken into custody.
4 The facts are as follows. On 23 November 2000, detectives from the organised crime investigation section stopped a vehicle in Essex Street, Fremantle in which they found two of the applicant's co-offenders, one Mr Nicolae Terziu and one Mr Dorel Albutiu. The detectives located three packages of heroin, weighing in total 1.05 kilograms. The heroin was split into three 350 gram packages with a purity of 37 per cent, 42 per cent and 43 per cent respectively.
5 An agreement was reached between the police and the co-offender Albutiu to substitute the drugs with an inert substance and deliver the packages to the applicant's home address in Baldivis. A search warrant was issued under s 24(1)of the Misuse of Drugs Act and was executed at the address of the applicant that evening. The substituted heroin package
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- was found in a kitchen drawer during the search and the applicant was then charged with the subject offences.
6 In the meantime, on 5 October 2000, police had stopped the applicant at Perth airport on his return flight from Sydney. It was alleged that on that day police found a card on the applicant's person with a mobile number written on it. That number was registered to Terziu. In the police video interview the applicant said that he had met Terziu by chance in Sydney. His telephone records showed, however, that he had lied to the police about his involvement with Terziu and had made calls to Terziu on 29 and 30 September 2000, which was before he travelled to Sydney on 4 October 2000. Telephone contact with Terziu also took place on 5 November 2000 and another two calls from Terziu were made to the applicant on 20 November 2000, shortly before he left Sydney. Another call was made from Terziu to the applicant on 23 November 2000 from Fremantle.
The Co-offenders
7 Albutiu pleaded guilty on the fast-track system on 27 April 2001. He was sentenced to 5 years' imprisonment which was achieved from a starting point of 12 years with 3 years deducted for his fast-track plea of guilty; 4 years for cooperation with the police; 2 years for cooperating with the police on 23 November 2000 and a further 2 years for promised cooperation in giving evidence against Terziu and the applicant. Furthermore, he was sentenced on the basis that he was to be a courier of the drug from Fremantle to the home of the applicant for payment of $3000.
8 In Veneziani v The Queen [2001] WASCA 246 at 23 per Malcolm CJ, with whom Wallwork and Templeman JJ agreed, said that the undertaking given by the offender to the police to give evidence in the prosecution of co-offenders was an important mitigating factor.
9 Terziu pleaded guilty on 25 March 2001 and was sentenced on 10 April 2001 to 9 years' imprisonment. This sentence took into account Terziu's early plea of guilty, and he was sentenced on the basis that he had acted as a courier. Both the co-offenders, like the applicant, were convicted of possession of heroin with intent to sell or supply to another.
10 The learned sentencing judge made the following observations regarding the hierarchy and involvement of the applicant:
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- "Through your counsel you say that you became involved because of friends and you were to receive a [sic] $1000 for your involvement and by implication Albutiu was further up the scale than you were. Terziu was to bring the drugs to Western Australia; Albutiu was to collect them and deliver them to you; then you were to wait for another phone call from someone in the Eastern States with the instructions as to where to take them then. While you were prepared to concede that you were higher up the scale than Terziu, you were not prepared to concede that you were higher up the scale than Albutiu and, in any event, what you say is that you were a collector in the chain."
11 The learned sentencing Judge then went on to consider the applicant's position in the hierarchy. Making reference to the transcript of the conversation between the applicant and the co-offender Albutui, her honour went on to say:
"Despite the fact that the police have estimated that this drug could be worth $1,000,000 on the street, you were to receive $1000 for your involvement and you were unaware, according to your counsel, of the value of this commodity. The Crown on the other hand referred me to the deposition of Albutiu who says that you told him that you had been searched on this occasion in October and the reason you had been searched is because of your involvement in the heroin.
Albutiu goes on to say that on 23 November you came to his home and asked him if he would pick up a package from one Terziu on the basis that he would get $3000 for that. You were then to accept a delivery of the package from him. The following morning you telephoned him and told him that Terziu was coming. You decribed Terziu and told him to meet Terziu at Cash Converters near Myers in Fremantle. You obviously knew Terziu because prior to this day you had Terziu's telephone number in your possession and there had been several phone calls between you."
12 Her Honour dismissed the applicant's claim concluding that the applicant was higher up the scale than the co-offender Albutiu, saying:
"Furthermore, Albutiu asked you for money and you said you did not have any money at that time. You did not say to him that getting money had nothing to do with you and I reject your
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- statement as to where you belong in the hierarchy. You are obviously ahead of Albutiu and you involved him shortly before this and you were to give him $3000. You were obviously to receive a great deal more than that and you arranged for someone to pick up this package because of the dangers of picking it up yourself. You are higher up the scale than Albutiu by a long way and it was an enormous amount of heroin."
13 The amount of heroin her Honour referred to was indeed a significant amount of 1.05 kilograms and estimated by the police to be worth approximately $1,000,000 on the street. The learned sentencing Judge concluded that:
"We will never know exactly where the heroin was to stop but you will be sentenced on the basis that your involvement is far greater than you are prepared to admit and you are certainly not the one who was taking the risks. That is usually a fairly good indication of where you are on the scale."
14 In Veneziani v The Queen (supra), the applicant argued that there was a significant disparity between the sentences of each of the co-offenders. Malcolm CJ at par 37 said that:
"In my opinion, having regard to all of the circumstances, the total sentence of imprisonment for 14 years imposed upon the applicant by the learned trial Judge was well within the range of sound discretionary judgment and appropriately reflected the seriousness of the offences of armed robbery in which he was involved and the role that he played. Furthermore, having regard to the eight serious offences which were involved and the fact that they required a significant degree of planning, in respect of which the applicant played a leading role, the total sentence of imprisonment for 14 years could not in any way be described as excessive, whether in relation to the application of the totality principle or otherwise."
Grounds of appeal
15 At the hearing the applicant relied upon the following grounds of appeal:
"The sentence imposed on the applicant was manifestly excessive having regard to:
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- the applicant's age;
the applicant's antecedents;
the applicant's plea of guilty;
the level of remorse exhibited by the applicant; and
the applicant's strong prospects of rehabilitation.
- The learned sentencing Judge erred in imposing the maximum allowed under the Act having regard to:
the applicant being a first time offender; and
imposing the maximum being too severe for a first time offender."
17 Paragraph 7 of the applicant's submissions addressed the plea of guilty. A plea of guilty attracts a reduction in the sentence otherwise imposed for a number of reasons. It may demonstrate remorse and acceptance of responsibility, and it facilitates the course of justice: Cameron v The Queen (2002) 209 CLR 339 at 343 per Gaudron, Gummow and Callinan JJ. Even where a plea is made late (which is the case here) and even where an offender has been apprehended in circumstances which suggest that a finding of guilt is almost inevitable, there should be a discount for the reasons discussed by McKechnie J (with whom Malcolm CJ and Anderson J agreed) in Radebe v The Queen [2001] WASCA 254. In this case, the learned sentencing Judge clearly took the applicant's plea of guilty into account during the sentencing process. However, the plea of guilty was only indicated to the Court the day prior to the scheduled trial date and therefore the learned sentencing Judge did not err in limiting the weight given to the guilty plea. Counsel
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- for the applicant conceded this point and accepted that it was a late plea, however, it was argued that some discount should still be given for the plea.
18 The seriousness of this particular offence cannot be overstated. The quantity of heroin involved exceeded 1 kilogram and was of a high degree of purity. Its street value was estimated by the police to be approximately $1,000,000. A significant consideration for the learned sentencing Judge was that the applicant was clearly higher in the criminal hierarchy than his co-offenders.
19 In Quach v R[1999] WASCA 210Ipp J, with whom Wallwork and White JJ agreed, at [13] held that the sentencing judge did not err in finding that mitigating factors were of little consequence. Ipp J goes on to say:
"The prevalence and seriousness of criminal heroin use make deterrence the principal consideration in sentencing for heroin related offences. The terrible consequences to the community of trafficking in this drug are notorious. Where an offender consciously and deliberately, knowing full well what harm will be done thereby, participates (no matter in what capacity) in the heroin trade for commercial gain, it is ordinarily futile to argue that personal circumstances and antecedents have significant mitigatory force."
20 The seriousness of the heroin trade were also addressed in Darwell v The Queen (1997) 94 A Crim R 35, Heryadi v The Queen (1988) 98 A Crim R 578, and Musarri v R, unreported; CCA SCt of WA; Library No 980662; 17 November 1998.
21 In Cardile v The Queen [2003] WASCA 72 at [12] Wheeler J, with whom Malcolm CJ and Murray J agreed, held that when the Court considers the question whether there has been an error, it looks to the sentence actually imposed. Whether the "starting point" is excessive or inadequate, that is not a "sentence" which this Court reviews: Grimwood v The Queen [2002] WASCA 135.
22 Further, although it is accepted that the quantity and purity of the drug involved in any drug offence will always be relevant considerations, they are not decisive: Wong v The Queen (2001) 207 CLR 584 at [609] per Gaudron, Gummow and Hayne JJ). The scale and nature of the enterprise, the role played in it by the offender, and the reward which the
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- offender hopes to obtain are all, where they can be ascertained, of great importance: Wong v The Queenibid at [607 - 608].
23 In the view of the Court in Cardile v The Queen ibid at [14] the authorities do not require that a precise mathematical computation be performed in all cases so that there is a discount of exactly 25 per cent or upwards. As McHugh, Hayne, Callinan JJ noted in Pearce v The Queen (1998) 194 CLR 610 at [46]:
"Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision."
24 In the present case the discount was one of 20 per cent resulting in a reduction of the initial term of 12½ years to 10 years' imprisonment.
25 From the authorities, what appears to be more important is that the discount should be seen to be a substantial and appropriate reduction in sentence, and in my view the reduction of 2½ years from the 12½ year starting point must be regarded as substantial.
Conclusion
26 It is my view that this application for leave to appeal against sentence should be dismissed.
27 MURRAY J: I agree with Malcolm CJ that leave to appeal should be refused in this case.
28 ANDERSON J: I agree with the judgment of the Chief Justice. There is nothing I wish to add.
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