Colangelo v The State of Western Australia
[2004] WASCA 294
•8 DECEMBER 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: COLANGELO -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 294
CORAM: TEMPLEMAN J
MCKECHNIE J
MCLURE J
HEARD: 22 OCTOBER 2004
DELIVERED : 8 DECEMBER 2004
FILE NO/S: CCA 67 of 2004
BETWEEN: ADRIAN ALBERT COLANGELO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :HH JACKSON DCJ
Citation : THE QUEEN v ADRIAN ALBERT COLANGELO
File No :IND 1024 of 2003
Catchwords:
Criminal law - Sentence - Possession of methylamphetamine - No new principles - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: Mr L M Levy
Respondent: Mr R E Cock QC & Ms G Colborne
Solicitors:
Appellant: Laurie Levy & Associates
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Grimwood v The Queen [2002] WASCA 135
Marker (2002) 135 A Crim R 55
Pop (2000) 116 A Crim R 398
R v Hafner [2002] WASCA 211
Radebe (2001) 122 A Crim R 559
Tulloh v The Queen [2004] WASCA 169
Case(s) also cited:
Kadem v The Queen [2002] WASCA 133
Wood v The Queen [2003] WASCA 16
TEMPLEMAN J: I have had the advantage of reading in draft the reasons to be published by McKechnie J.
I agree with his Honour's reasons and wish only to add the following comments in response to the submission made by the applicant's counsel that the applicant pleaded guilty at the first reasonable opportunity.
I do not accept that submission. The indictment was presented on 13 January 2004. It contained six counts including the offence of receiving a stolen bicycle. The applicant apparently protested his innocence in relation to that charge which was subsequently dropped: it was the subject of a nolle prosequi.
We were told by the applicant's counsel that there were subsequent negotiations which resulted in the indictment presented on 1 April 2004 to which the applicant – on that date – pleaded guilty.
It was accepted by the applicant's counsel that the indictment of 1 April charged the applicant with the same offences as those appearing on the indictment of 13 January 2004, albeit in a different form.
We were told by counsel that there was "a concern about there being multiple counts on the indictment" (TS 8). However, the fact remains that the applicant could have pleaded guilty then, as he did subsequently. In all the circumstances, the learned sentencing Judge was justified in holding that the discount given to the applicant should be less than would have been given on a fast‑track plea (AB 36).
Out of deference to the arguments presented to the Court on the application, I would grant leave to appeal. However, I too would dismiss the appeal.
MCKECHNIE J: This is an application for leave to appeal against sentence.
On 6 November 2002 police executed a search warrant at an address in Nollamara where the applicant resided. Secreted in various places about the house, and on the applicant's person, was a total of 53.32 grams of methylamphetamine ranging in purity from 9 per cent to 48 per cent. In addition to the methylamphetamine, 74 tablets of MDMA or ecstasy were seized.
The search established that the applicant was carrying on the business of drug trafficking. In addition to the drugs outlined there was a
large quantity of small clipseal bags in the kitchen near a set of electronic scales. The applicant exchanged amphetamine for property and/or cash when contacted by mobile phone.
In addition to the finding of the scales and the bag, the search also uncovered lists which showed that the applicant was a significant drug dealer.
A little over three months later, on 20 February 2003, police again searched the Nollamara residence, finding on this occasion a clear plastic clipseal bag containing 26.3 grams of methamphetamine at 37 per cent purity. The applicant had been on bail for the earlier offences at the time of this discovery. The applicant was 23 at the time of the offences.
On 29 April 2004 he was sentenced for three counts. Counts 1 and 2 dealt with the possession within intent to sell and supply of methylamphetamine and MDA respectively on 6 November 2002. He received a sentence of 4 years' imprisonment for count 1, and 2 years' imprisonment for count 2, to be served concurrently. Count 3 concerned the possession of methylamphetamine on 20 February 2003. He received a sentence of 2 years' imprisonment for count 3 to be served cumulatively upon the other counts, making a total of 6 years' imprisonment. A parole eligibility order was made. The sentence was backdated to 20 February 2003, the date of the offence in count 3 and the date on which he was finally taken into custody. The Judge expressly took account of the transitional provisions of the Sentencing Act so that, for the purpose of comparison with other sentences passed before those provisions, the sentence may be equated to one totalling 9 years' imprisonment.
In sentencing, the Judge described the applicant as a middle-range dealer. He noted that the applicant was entitled to some discount for a plea of guilty although the discount was less than would have been given on a fast‑track plea. He noted the background of the applicant including his age, his drug usage and the fact that he had no significant prior history of offending.
Grounds of appeal
The first ground of appeal is that the Judge imposed a sentence that was manifestly excessive. That is particularised in that the Judge failed to give sufficient weight to the following mitigating factors:
"a)The Applicant's plea of guilty.
b)The Applicant's demonstrated rehabilitation.
c)The Applicant's age and antecedents.
d)The Applicant's contrition and remorse.
e)The delay in proceedings before the court due to no fault on the part of the Applicant.
f)The Applicant's drug usage."
It is a trite observation to say that sentencing is an exercise of judicial discretion and appeals on the basis that a Judge failed to give sufficient weight to various factors are difficult to maintain when, as here, the Judge was required to weigh many factors, including the circumstances and nature of the offence, and those matters personal to the applicant, before arriving at a sentence which justly reflects the principles of sentencing.
In this case, the Judge expressly had regard to the plea of guilty. His conclusion that it would not attract the same discount as a fast‑track plea was open to him in the circumstances. The Judge described the proceedings before trial as "convoluted" – an apt description. The applicant could have entered an earlier plea.
The applicant points to authorities of this Court, for example, Radebe (2001) 122 A Crim R 559, and submits that the sentencing discount for a plea of guilty under the fast‑track system commonly ranges between 20 – 35 per cent.
It may be accepted that a sentence should be discounted for a plea of guilty, and, in ordinary cases, the earlier the plea the greater the likelihood that the discount will be substantial.
In this case, the Judge did not arithmetically deduct a fixed percentage for the plea, or indeed for any other factor. He set a total sentence after making allowance for all matters. Such a sentence may still be impugned if its magnitude suggests that the plea of guilty was not sufficiently recognised. But when a Judge does not adopt the two‑tier approach to a sentence, it is an error to ascribe a notional percentage and test the sentence by making that deduction.
An appeal will only succeed where the ultimate sentence manifests error: Grimwood v The Queen [2002] WASCA 135.
The demonstrated rehabilitation, age and antecedents, contrition, remorse and drug usage, are all matters which, though important, in the context of a middle-range drug dealer, can only have limited effect.
The applicant argues that there was a significant delay in the finalisation of the matters. The applicant was charged with the third offence on 20 February 2003 and pleaded guilty on 1 April 2004. While any delay is regrettable, I am unpersuaded that the delay in the circumstances of this case was excessive. There may be occasions when delay becomes a mitigating factor to reduce an otherwise appropriate sentence. This is not one of those cases. I am of the view that the Judge significantly took into account the delay by backdating the time for commencement of the sentence to 20 February 2003 and that no further adjustment was required.
The applicant submits that as his offences were motivated out of a need to finance his own habit, his criminality was lower than that of an offender who is motivated purely by greed. I am unable to accept the submission which is contrary to the authority of Marker (2002) 135 A Crim R 55 per Anderson J at [80] and [81].
Ground 2 complains that the Judge erred by failing to properly apply the "totality principle". In my view, the Judge did not err in making count 3 cumulative upon counts 1 and 2. It was committed later and significantly involved a continuation of the same conduct as the earlier matters - that of drug dealing. It was an aggravating factor showing a blatant disregard of the law in circumstances where the applicant was already on bail: Pop (2000) 116 A Crim R 398 at [89].
There remains for consideration, however, the question whether the total sentence of 6 years, however arrived at, exceeded the bounds of a proper sentencing discretion to such an extent as to manifest error.
The applicant asserts that the sentences imposed were outside the permissible range of sentences for offences of this nature in all the circumstances of the applicant. I have been greatly assisted by the decision in Tulloh v The Queen [2004] WASCA 169 where Miller J and McLure J each conducted an extensive review of the general authorities although the cases they cited involve larger amounts of drugs or greater criminality. In addition to Tulloh, I have derived considerable assistance from a review of cases by Steytler J in R v Hafner [2002] WASCA 211. Each of the Judges acknowledge the need for caution in comparing facts and circumstances. Suffice it to say that, in my opinion, the total sentence
imposed on the applicant does not manifest error. In my view, it is within the range of sentences for this type of offending. The quantity of drugs involved is, of course, one aspect. However, the circumstances as set out in the commencement of these reasons indicate that the applicant, though young, was trafficking in drugs in a very significant way. In these circumstances, in the words of McLure J in Tulloh at [52]:
"…The very high financial returns for drug trafficking must be appropriately counter-balanced by significant deterrent sentences following detection and conviction."
I would grant leave to appeal but dismiss the appeal.
MCLURE J: I have had the advantage of reading, in draft, the reasons to be published by McKechnie J. I agree with those reasons and have nothing to add.
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