Dao v The State of Western Australia

[2007] WASCA 237

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   DAO -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 237

CORAM:   MILLER JA

HEARD:   2 NOVEMBER 2007

DELIVERED          :   9 NOVEMBER 2007

FILE NO/S:   CACR 91 of 2007

BETWEEN:   DIEM LOC MAY DAO

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :WISBEY DCJ

File No  :IND 636 of 2007

Catchwords:

Leave to appeal - Drug offences - Possession of 56.03 grams of heroin of 59% purity and 119.2 grams of methylamphetamine of approximately 49% purity with intent to sell or supply - Offender apprehended at airport - Appellant carrying goods for financial reward - Knowledge of the seriousness of what was being done - Appellant 51 years of age with two children aged 10 and 14 years - Single mother - Whether effective sentence of 6 years' imprisonment manifestly excessive - Whether sentences should have been wholly concurrent or partially cumulative as ordered

Legislation:

Nil

Result:

Leave to appeal refused

Category:    B

Representation:

Counsel:

Appellant:     Mr M R Gunning

Respondent:     No appearance

Solicitors:

Appellant:     Gunning Young

Respondent:     Director of Public Prosecutions (WA)

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

Bosworth v The State of Western Australia [2007] WASCA 144

Davis v The State of Western Australia [2007] WASCA 147

Jarvis v The Queen (1993) 20 WAR 201

R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554

R v Votano [2000] WASCA 144

Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

1. MILLER JA:  The appellant seeks leave to appeal an effective sentence of 6 years' imprisonment imposed upon her in the District Court at Perth on 12 July 2007. 

2. The appellant pleaded guilty to two counts of possession with intent to sell or supply of illegal drugs.  The first was a quantity of 56.03 grams of heroin of 59% purity.  The second was a quantity of 119.2 grams of methylamphetamine of approximately 49% purity.  The appellant intended to sell or supply those substances to another.  The appellant was sentenced to 4 years' imprisonment on each count.  It was directed that the sentence on count 2 be served partly concurrently with that on count 1 in that it commence at the expiration of 2 years of the term imposed on count 1.  This made an effective aggregate sentence of 6 years' imprisonment.

Notice of appeal

1. The appellant seeks leave to appeal against the sentences imposed on two grounds.  They are as follows:

   GROUND 1

   The sentence in respect of counts 1 and 2 of 6 years was manifestly excessive and outside the range of a sound discretionary judgement in light of there being one transaction and the factual and personal circumstances of the appellant when viewed as a whole.

   GROUND 2

   The learned sentencing Judge erred in Law in failing to make the sentence on Count 2 of the indictment wholly concurrent with count 1.

   PARTICULARS

   There was one transaction in that both counts;

   (I)Related to one amount of money being paid to courier the drugs.

   (II)Related to one trip.

   (III)Related to an elicit substance in sealed packages in the appellants clothing of which quantity, type of drug, and purity were unknown.

The facts

1. The facts revealed that on 25 October 2006, the appellant disembarked in Perth from a Qantas flight from Sydney.  She was spoken to by police and a search revealed that the appellant was carrying two quantities of drugs in individual packages which were sewn into the crotch area of underpants she was wearing. 

2. The appellant was interviewed and said that she had flown to Sydney on 23 October 2006, having reached agreement with the principal distributor of the drugs to transport those drugs to Perth.  She was to be paid $10,000 for doing so.  She said she required that sum to discharge a gambling debt. 

3. The street value of the 56.03 grams of heroin was estimated to be $160,000 and the street value of the 119.2 grams of methylamphetamine was estimated to be $230,000.  The total street value of the drugs was, thus, $390,000.  This was a very substantial sum of money. 

4. Telephone intercepts and other information obtained by police revealed that the appellant was involved in a drug distribution network.  The principals were arrested in Perth on 28 November 2006. 

5. The learned sentencing judge found (and it is not in dispute) that the appellant actively participated in the transportation of the drugs well knowing what she was doing and the seriousness of what she was doing.

Sentencing comments

1. The learned sentencing judge recited the facts and concluded that the appellant was a necessary step in the introduction of illicit substances into the community.  He pointed out that deterrent sentences were called for because of the need for community protection.  Reference was made to the enormous social cost to the community of illicit drug use. 

2. The learned sentencing judge did, however, take account of matters personal to the appellant.  He noted that she was 51 years of age and a single mother with two children aged 10 and 14 years.  She was born in Vietnam and had come to Australia via a refugee camp in Hong Kong.  Although she was found to have a gambling addiction, which had incurred significant debts, the learned sentencing judge (correctly) took the view that, despite this, the appellant had actively participated in the proposed dissemination of illegal drugs for financial reward.

3. Full account was taken of references which were tendered to the learned sentencing judge.  They revealed the difficulties which would arise in consequence of the appellant's imprisonment. 

4. The learned sentencing judge took account of the interests of the appellant's children in determining the sentence to be imposed.  He also took account of the plea of guilty entered at the earliest possible opportunity, although noting that the appellant had no practical alternative but to plead guilty.  Sentences of 4 years' imprisonment were then imposed on each count, with the sentence on count 2 partly cumulative on that imposed on count 1 so as to bring about an effective sentence of 6 years' imprisonment. 

Grounds of appeal

Ground 1

1. This ground contends that the overall sentence of 6 years' imprisonment was manifestly excessive, having regard to the fact that there was one transaction and having regard to the factual and personal circumstances of the appellant. 

Ground 2

1. This ground really overlaps with ground 1.  It contends that the learned sentencing judge erred in law in failing to make the sentence on count 2 wholly concurrent with that on count 1. 

2. The essence of the appellant's grounds of appeal is that she should have been sentenced to concurrent terms of 4 years' imprisonment.  It is contended that the sentences breached the so‑called "one transaction rule".  In Davis v The State of Western Australia [2007] WASCA 147, I made reference to the one transaction or "continuing episode rule" by quoting what Steytler P had said in Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 [20] et seq.  I repeat what I there said:

   The one transaction rule, or "continuing episode rule", was comprehensively dealt with by Steytler P in Worthington v The State of Western Australia (2005) 152 A Crim R 585 at [20] et seq.  The "rule" is essentially to the effect that concurrent sentences should be imposed in the case of a number of offences which arise from substantially the same act, or same circumstances, or a closely related series of offences.  In Pearce v  The Queen (1998) 194 CLR 610, Kirby J, at [120], made reference to multiple offences which are "considered to be manifestations of the one criminal enterprise, transaction or episode".

   In Worthington, at [21] - [24], Steytler P said:

   "21      The underlying principle of the 'rule' has been said to be that all the offences taken together constitute a single invasion of the same legally protected interests:  D A Thomas, Principles of Sentencing (2nd ed) p 53.  However, there are cases in which distinct and unrelated offences have been treated as if they were related for the purposes of concurrency if they have been committed within a short period of time:  see, for example, R v Scanlon (1987) 89 FLR 77.

   22In Dicks v Asherton [sic Dicker v Ashton] (1974) 65 LSJS 150 at 151 (cited with approval by Asche CJ in Scanlon, at 80 - 81), Wells J said:

   '… unless the circumstances are exceptional or the offences in question are the terminal product of separate and independent courses of criminal conduct that happen to have occurred together, a court is not ordinarily justified in imposing cumulative sentences of imprisonment for offences that are of a similar character or ordinarily associated and that simply represent facets of one course of conduct.'

   23It is plain that this 'rule' is not a rule at all, but merely a guideline or, as it was described in Ruane v The Queen (1979) 1 A Crim R 284, a 'good working rule'. Each case must, in the end, depend upon its own circumstances and it is for the sentencing judge to determine, in every case, whether the application of the general rule would result in an appropriate measure of the total criminality involved in the conduct: R v Faithfull (2004) 142 A Crim R 554 at [28] per McLure J (with whom the other members of the Court were in agreement); R v White [2002] WASCA 112; R v O'Rourke [1997] 1 VR 246 at 253 and R v O'Brien [1997] 2 VR 714 at 720 - 721.

   24In Pearce (at [40]), McHugh, Hayne and Callinan JJ said:

   '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 desserts'." [33] ‑ [34]

3. Although the "one transaction rule" is "a good working rule", each case must therefore depend upon its own circumstances.  The question is whether the application of the general rule would result in an appropriate measure of the total criminality involved in the conduct.  This is made clear by Steytler P in Worthington at [23].

4. In the present case, the appellant was in possession of two separate and distinct quantities of drugs.  It is true that they were both on the appellant's person. 

5. It is not the law that, because the appellant was in possession of two separate quantities of drugs on her person and therefore committed the offences at the same time, she must necessarily (my emphasis) be sentenced to concurrent terms of imprisonment.  It is all a question of a measure of the total criminality of conduct:  R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [28] (McLure J). See also R v Votano [2000] WASCA 144, where a courier of two packages of drugs (164 grams of methylamphetamine (powder) of 55% purity and 237.9 grams of methylamphetamine (tablets) with a purity of 6.8% was sentenced to 5 years and 2 years respectively, to be served cumulatively.

6. In my opinion, the learned sentencing judge took proper account of the overriding principle that the aggregate sentence should fairly and justly reflect the total criminality of the appellant's conduct:  see Jarvis v The Queen (1993) 20 WAR 201, 207 (Ipp J). A sentence of 6 years' imprisonment was well within the range of sentences that could properly have been imposed upon the appellant. Votano was a Crown appeal against sentence.  The 7‑year term imposed in the Court of Criminal Appeal on that appeal (4 years 8 months 'post‑transitional') took account of the fact that it was a Crown appeal.  Wallwork J (with whom Kennedy and Pidgeon JJ agreed) said:

   The present offences were extremely serious, having regard to the quantities of the drug involved and, in particular, having regard to the purity of the package containing the powder.  The respondent was an essential part of a commercial drug operation which was well organised.  He deliberately chose to run the risk of punishment in the hope of obtaining money.  The increasing prevalence of the use of amphetamines has led to a firming up of sentences.  His conviction for the offence was inevitable once the drugs had been discovered in the course of a body search by detectives at Perth Airport, so that the credit to which he was entitled under the fast track system must be towards the bottom end of the scale.

   Having in mind that this is a Crown appeal, and that the respondent is in jeopardy for a second time - as to which see R v Allpass (1993) 72 A Crim R 561 and R v Clarke[1996] 2 VR 520, which were cited with approval by the High Court in Lowndes v The Queen (1999) 195 CLR 665, at 671 - I would increase to 5 years the sentence for the offence of the respondent having in his possession, with intent to sell or supply it, 164 grams of methylamphetamine powder of 55 per cent purity. I would then impose an additional sentence of 2 years' imprisonment, to be served cumulatively upon the first sentence, for the respondent's offence of having in his possession, with intent to sell or supply it, the 989 methylamphetamine tablets of 6.8 per cent purity weighing 237.9 grams. This makes an aggregate sentence of 7 years' imprisonment. The orders for eligibility for parole should remain. [24] ‑ [25]

7. Reference might also be made to Bosworth v The State of Western Australia [2007] WASCA 144. At [41], I set out an analysis of cases involving possession with intent to sell or supply smaller quantities of methylamphetamine (3 to 65 grams) and concluded that (post‑transitional) sentences ranged between 2 and 5 years. Most of the cases involved pleas of guilty. Steytler P and McLure JA considered that a sentence of 5 years 10 months for possession of 84.17 grams of methylamphetamine of average purity of 24% was within range:

   These cases support the conclusion that a sentence of 5 years and 10 months' imprisonment is at the high end but is not outside a sound discretionary range in circumstances where the appellant was in possession of 84.17 grams of methylamphetamine with an average purity of 24 per cent pursuant to a commercial drug dealing enterprise which offence was committed whilst the appellant was on a conditional release order for the same offence. [17]

8. The structure of the sentences was such as to make one sentence partially cumulative, but partially concurrent.  The fact that the two offences of possession with intent to sell or supply arose out of the same facts and that the appellant had each of the drugs on her person does not, in my view, mean that the learned sentencing judge was obliged (my emphasis) to impose concurrent terms of imprisonment.  I consider the sentence of 6 years' imprisonment to have been entirely within the range that could have been imposed and I would refuse leave to appeal.