Dailey v The Queen
[2000] WASCA 158
•9 JUNE 2000
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: DAILEY -v- THE QUEEN [2000] WASCA 158
CORAM: MALCOLM CJ
WALLWORK J
MURRAY J
HEARD: 12 APRIL 2000
DELIVERED : 12 APRIL 2000
PUBLISHED : 9 JUNE 2000
FILE NO/S: CCA 2 of 2000
BETWEEN: PETER ROBERT DAILEY
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Heroin - Fast track pleas of guilty to four charges - Two of possession with intent to sell or supply - Two of selling heroin as a street dealer to support his habit - Aggregate 4 years' imprisonment - On appeal
Legislation:
Nil
Result:
Application for leave to appeal refused
Representation:
Counsel:
Applicant: Mr A Palumbo
Respondent: Mr B Fiannaca
Solicitors:
Applicant: Birman & Ride
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Donatelli v The Queen, unreported; CCA SCt of WA; Library No 980505; 3 September 1998
Thompson v The Queen unreported; CCA SCt of WA; Library No 970435; 5 September 1997
Verschuren v The Queen (1996) 17 WAR 467
Case(s) also cited:
Bowman v The Queen (1993) 69 A Crim R 530
Jarvis v The Queen (1993) 20 WAR 201
Korculanic v The Queen, unreported; CCA SCt of WA; Library No 980437; 16 July 1998
La Rosa v The Queen, unreported; CCA SCt of WA; Library No 960628; 31 October 1996
Lowndes v The Queen (1999) 163 ALR 483
Mill v The Queen (1988) 166 CLR 59
Musarri v The Queen, unreported; CCA SCt of WA; Library No 980662; 17 November 1998
Quach v R [1999] WASCA 210
R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998
R v Gibson, unreported; CCA SCt of WA; Library No 980308; 5 June 1998
Shaw v The Queen (1989) 39 A Crim R 343
Sikaloski v The Queen [2000] WASCA 63
MALCOLM CJ: In my opinion this application for leave to appeal against sentence should be refused for the reasons to be published by Wallwork J. I only wish to add some comments of my own. The applicant was sentenced to imprisonment for 2 years in respect of each of four offences involving heroin. There were two offences of possession with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act1981 (counts 1 and 3) and two offences of selling heroin to another contrary to s 6(1)(c) of the Act (counts 2 and 4). The sentences for counts 1 and 2 were made concurrent with each other as were the sentences for counts 3 and 4 but the two sets of concurrent sentences were directed to be served cumulatively. Thus, the total effective sentence was imprisonment for 4 years. The applicant was made eligible for parole. The facts are fully set out in the reasons to be published by Wallwork J.
It was submitted that the learned sentencing Judge did not appear to turn his mind to suspending the sentence, given the applicant's prospects of employment and rehabilitation: cf Thompson v The Queen unreported; CCA SCt of WA; Library No 970435; 5 September 1997 in which Heenan J commented that:
"It is a case for imprisonment, and a term of 18 months normally would be regarded as being at or about the bottom of the range of the appropriate penalty. As Parker LCJ said in R v O'Keefe [1969] 2 QB 29 at 32, the final question for the sentencing judge was: 'is immediate imprisonment required, or can a suspended sentence be given?' "
That was in the context of an appeal on the principal ground that the sentence imposed in that case should have been suspended. The grounds of the application in this case do not contend that any sentence of imprisonment should have been suspended. No such contention was made by counsel for the applicant when the applicant was before the learned Chief Judge of the District Court. It was contended only that he was in a position to pay a fine. It was pointed out that as of the date he came before the learned Chief Judge for sentencing on 11 January 2000 he had been in custody since 24 September 1999. In passing sentence the learned sentencing Judge said:
"It is not necessary to repeat what is so often said about the harmful effects of the distribution of drugs such as heroin within the community. That goes without saying and is well-known to everybody in this court room. What is surprising here is that this offender is a man of forty-five years of age, of some considerable achievement in that he is an international foreign engineer, watchkeeper and has obviously been employed in a very significant position in the marine industry for some time.
He therefore knows what he is doing is wrong and there's no other conclusion that one can come to other than that he is a determined street dealer in heroin with no concern as to what is going to happen to the stuff that he is selling to people on the streets of Fremantle. If ever that needed clarification it is shown by the fact that whilst on bail, no doubt for the first two offences, he is involved in the offence of 23 September when he is back again in the streets of Fremantle selling heroin.
There is no possible alternative to this matter other than the imposition of a term of imprisonment or, should I say, terms of imprisonment. It is severely aggravated by the repeated nature. It is severely aggravated by the fact that the second set of offences were committed whilst on bail for the first offence. The pre‑sentence report talks of community service, which recommendation is completely out of touch with reality. What he can be given credit for is perhaps only his plea of guilty on the fast-track system but the enormity of his offending leaves me no alternative other than the imposition of a term of imprisonment."
In my opinion, it is impossible to say that in such a case as this there was any error in the exercise of discretion by the imposition of an immediate term of imprisonment. This is the type of case which warranted a deterrent sentence. A non‑custodial disposition would only be warranted in very exceptional circumstances: Donatelli v The Queen, unreported; CCA SCt of WA; Library No 980505; 3 September 1998 at 5 per Murray J (with whom Pidgeon and Wallwork JJ agreed).
The sentences imposed in this case were well within the appropriate range, his Honour having made due allowance for the pleas of guilty on the fast‑track system. However, it is desirable for the sentencing Judge to state the extent to which a sentence has been discounted for an early plea of guilty. It is not a sentencing error for a Judge not to specifically quantify the discount: Verschuren v The Queen (1996) 17 WAR 467 at 474 per Malcolm CJ; at 475 per Pidgeon J; and at 491 per Murray J.
It was submitted that the overall sentence of 4 years was manifestly excessive in totality, having regard to the small quantity of the substance
involved, the applicant's antecedents and the positive aspects of the pre‑sentence report. It is necessary that an overall sentence be proportionate to the total criminality of the offender's conduct. In my opinion, it was not shown that there was any violation of the totality principle. The two sets of possession and selling offences result in the imposition of concurrent sentences which were well within the appropriate range and the direction that the two sets of concurrent sentences be served cumulatively did not in any way infringe the totality principle. Having regard to the pattern of sentencing for offences of this kind, it cannot be said that in the circumstances of this case the total sentence of imprisonment for 4 years was a crushing sentence.
WALLWORK J: The applicant applied for leave to appeal against an aggregate sentence of 4 years imprisonment which had been imposed upon him in the District Court at Perth on 11 January 2000. The aggregate 4 year sentence was comprised of four sentences of 2 years each for four separate offences connected with heroin. Two of those sentences were ordered to be served concurrently with the other two 2 year sentences. On 12 April, having heard argument from counsel for the applicant, the court refused the application for leave to appeal. My reasons for joining in that order are as follows.
The applicant is at present aged 45 years. He was born in England, but attended school in Victoria, Australia to year 10 level, after which he completed a fitting and turning apprenticeship in the years 1972 to 1976. He then gained qualifications as an International Engineering Watchkeeper after studies at the Royal Melbourne Institute of Technology. He was recently employed as a marine engineer for a total of 9 years, working in the offshore industry. He concluded his employment in that occupation in August 1998. He currently has an outstanding compensation claim for a foot injury.
The applicant pleaded guilty in the Perth District Court on 11 January 2000 to four charges. The first was that on or about 10 September 1999 at Fremantle, he had in his possession a quantity of heroin with intent to sell or supply it to another. The facts concerning that charge were that about 11.10 am on Friday 10 September 1999 the applicant drove to Marine Terrace in Fremantle in a BMW sedan to sell heroin. Fremantle detectives attempted to apprehend him. He however observed the detectives approaching and drove off. Whilst following the vehicle the detectives saw him throw a substantial number of paper folds out of his vehicle. The detectives retrieved from that area 14 paper folds which contained 0.05 grams of heroin in each paper fold. A short time
later they apprehended the applicant in South Fremantle. Six packets of heroin weighing a total of 0.36 grams were located in his vehicle. This was in addition to the amount of heroin in the discarded 14 paper folds which totalled 0.74 grams, making a total amount of heroin which had been in the possession of the applicant on that day at 1.1 grams, being from 35 to 41 per cent pure.
Following his apprehension the applicant was conveyed to the Fremantle detective office where a video interview was conducted. He stated that he had packaged the heroin himself and that he had purchased 2 grams the day before. He said he had travelled to Fremantle for the purpose of selling the heroin. He also said that the $750 cash in his wallet was the proceeds of the sale of heroin from that morning and the previous day. Those sales related to count 2 on the indictment, which was that on about 10 September 1999 the applicant had sold a quantity of heroin, being about 15 packets, in Fremantle and Mosman Park. He had received $50 for each packet. Each packet had contained about 0.05 grams of heroin for the total of which the applicant had received $750.
After he had been released on bail, and 13 days later, on 23 September 1999 at Fremantle, detectives conducting surveillance duties in the carpark at the rear of the East Fremantle shopping centre, saw the applicant arrive there in a Mazda sedan at about 10 am. He was observed to be sitting in the front passenger seat of the vehicle. Detectives observed people walking up to the applicant. They then apprehended the applicant. The detectives located $100 in two $50 notes in the offender's hands as well as 17 small paper folds containing approximately 0.05 grams of heroin each inside a plastic bag on the front passenger seat. The total weight of heroin seized on that occasion was 0.79 gms with a purity of between 25 to 32 per cent. Again the applicant was conveyed to the Fremantle detectives office where he participated in a record of interview. He admitted that he had parcelled the heroin for the $50 packets earlier that morning and had travelled to the shopping centre to sell it. He stated that the $100 in his possession was proceeds from the sale of the heroin. He said he had also intended to sell the remaining 17 packets.
Those were the facts relative to counts 3 and 4, with count 3 being the charge of possession with intent to sell or supply and count 4 being the selling charge.
The applicant remained in custody from 24 September 1999. His aggregate 4 years term of imprisonment dated from that time.
In mitigation the learned trial Judge was told amongst other things, that the applicant had been employed in two positions for a period of 19 years, with marine associated companies. In the 9 years prior to him being arrested in September 1999, he had used heroin intermittently. It was said that the heroin had not been a major problem until he had become unemployed. After he became unemployed he had been selling small quantities of heroin to support his habit. It was said that at the time when he appeared before the District Court in January 2000 he was in a position where he wanted to become gainfully employed again and to "clean up his act and his health and get on with life".
The learned Judge was told that the applicant was in a position to pay a fine and that he was expecting a sum for compensation with regard to his foot injury in the not too distant future. The learned Judge was also told that the applicant was prepared to abide by the terms of a community based order.
The prosecution submitted to the learned Judge that it was obvious that the applicant was a street level dealer directly involved in the selling and distribution of heroin on the streets. Further that he had a thriving business. He had been dealing in substantial numbers of paper folds. His intention had obviously been to sell drugs to a fairly large number of people. 13 days after his first apprehension he had been apprehended again doing exactly the same thing as he had been doing previously. He had had two prior convictions for the possession of heroin in 1991 and 1992.
In sentencing the applicant the learned Judge said that the harmful effects from the distribution of drugs such as heroin within the community are well known. It was apparent that the applicant who was a man of mature years and considerable achievement with his education and work experience knew that what he had been doing was wrong. His Honour came to the conclusion that the applicant was a determined street dealer with no concern as to what was going to happen to the heroin he was selling to people on the streets of Fremantle. That had been shown by the fact that after he had been arrested the first time, he had continued to sell heroin. His Honour came to the conclusion that there was no possible alternative to the disposition of the matter other than the imposition of a term of imprisonment. He said the position had been severely aggravated by the repeated offences which had been committed whilst the applicant had been on bail for the first offences.
The learned Judge told the applicant that he could be given credit for his pleas on the fast‑track system, but the enormity of the offences left no alternative other than the imposition of a term of imprisonment. His Honour said that having made due allowance for the pleas of guilty on the fast‑track system, the applicant would be sentenced to 2 years imprisonment for each offence. The two terms of 2 years imprisonment for the offences on or about 10 September were ordered to be served concurrently as were the two terms for the offences on 23 September. The aggregate term was therefore 4 years imprisonment to be served from 24 September 1999.
In his submissions to this Court, counsel for the applicant referred to some decisions where he said that other persons had received lighter sentences for similar offences than the applicant had received. However, as is well known, each offender must be dealt with for the circumstances concerned with that offender's particular offences and any mitigating matters personal to the offender.
It was submitted that in this case the applicant's prospects of rehabilitation and the relatively small quantities of the drug involved were matters which should have been taken into account. It was submitted that a term of 2 to 3 years imprisonment overall would have been appropriate in all the circumstances and that the total aggregate term of 4 years imprisonment was excessive.
It was submitted for the applicant that it was apparent from the sentencing remarks that some of the contents of the pre‑sentence report had not been taken into account and that a suspended term of imprisonment had not been referred to by the learned Judge at all. It was submitted that his Honour had only turned his mind to an immediate term of imprisonment. It was said that it was not argued that an immediate term of imprisonment was inappropriate because they were serious offences. But it was submitted that overall the term of 4 years imprisonment was excessive.
It was submitted that the applicant's early offences had been as far back as 1991 and 1992 and that for some 7 years the applicant had not been convicted, although he had intermittently used heroin for the previous 9 years. It was said that the heroin had not become a problem until the applicant had become unemployed. It was pointed out that he had been very co‑operative with the authorities and had told them about the previous sales for $750 which the police did not know of until he had told them about it. It was submitted that it had been because of his admissions that the applicant had been charged with count 2 on the indictment for having sold a quantity of heroin earlier that day or the day before. It was also said that the applicant was a person who had previously responded well to probation periods. He was open to rehabilitation. He had been selling heroin to support his own habit. He had been purchasing a quantity of heroin, retaining a quantity for himself, and selling the balance to pay for what he was using. It was submitted that his offending had been the result of him becoming unemployed some months prior to the offences.
What must be remembered is that the applicant admitted having sold 15 packets of heroin at $50 a packet in Fremantle and Mosman Park on or about 9 September 1999 for $750. Having been arrested, only 13 days later he was apprehended doing the same thing again. As well as the heroin he had sold, he had thrown at least 14 paper folds containing .05 grams each out of his car. He still had another six packets when he was apprehended, weighing a total of 0.36 grams. The total amount of heroin in his possession had therefore been 1.1 grams with a purety of 35 to 41 per cent.
Counsel for the applicant submitted to the court that the applicant had been totally honest with the authorities and that that should have been recognised to a greater degree than it had been, particularly with respect to the charge of selling the heroin in count 2 of the indictment for which the applicant, it was said, had received the same sentence as he received for the offences in counts 3 and 4 which had occurred in aggravating circumstances some days later. It was submitted that the applicant had not received sufficient recognition for his co‑operation concerning the earlier offences as he had received the same sentences for each of the four offences.
The answer to that proposition is that the learned Judge may have reduced the appropriate sentence for the third and fourth offences in order to arrive at a just total aggregate sentence of 4 years imprisonment. In any event, it could not be said that for the four offences to which the applicant had pleaded guilty, a total aggregate sentence of 4 years imprisonment was excessive. In my view it was a lenient sentence overall for the total criminality involved in the applicant's offences. It is well known that the illegal sale of heroin in this community is badly damaging the lives of the people to whom it is sold and the lives of others with whom those people come in contact. It could not be said, as it is said in the grounds of appeal, that the applicant's early pleas of guilty and co‑operation with the
authorities had not been sufficiently recognised or that the learned Judge had not given sufficient weight to the totality principle.
It was for the above reasons that I agreed that the application should be refused.
MURRAY J: I agree with the reasons published by Wallwork J. I have nothing to add.
3
1
1