Davis v The Queen - [2001] WASCA 386

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: DAVIS -v- THE QUEEN [2001] WASCA 386

CORAM: WALLWORK J
PARKER J
OLSSON AUJ

HEARD: 20 NOVEMBER 2001

DELIVERED : 7 DECEMBER 2001

FILE NO/S: CCA 67 of 2001

BETWEEN: LORENA EVELYN DAVIS
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Sentencing - Applicant a party to two sales of heroin - Total 20.66 grams - 7880 per cent pure - Total 5 year sentence - Cooffender received two sentences for the same offences ordered to be served concurrently - But he sentenced for other offences at same time - Received effective 12 year sentence for all offences - Whether applicant's two sentences should be served concurrently - Parity - Whether different circumstances

Legislation:

Misuse of Drugs Act 1981 (WA)

Result:

Application refused

Category: B

Representation:

Counsel:

Applicant:     No appearance
Respondent:     Mr S E Stone
Amicus Curiae              :     Ms K J Farley

Solicitors:

Applicant:     No appearance
Respondent:     State Director of Public Prosecutions
Amicus Curiae              :     Unrepresented Criminal Appellants Scheme

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

Dicker v Ashton (1974) 65 LSJS (SA)
Lowe v The Queen (1984) 154 CLR 606
Lowndes v The Queen (1999) 195 CLR 665
Murrell v The Queen (1984) 15 A Crim R 303
Postiglione v The Queen (1997) 189 CLR 295
R v Ruich [2000] WASCA 84
Ward v The Queen (1999) 109 A Crim R 159
Wong v The Queen [2001] HCA 64

Case(s) also cited:

"S" v R [2000] WASCA 34
Quach v R [1999] WASCA 210
R v Hutton (1982) 8 A Crim R 392

WALLWORK J: On the 16 March 2001 after a trial by jury the applicant was convicted of two offences of having sold heroin. On the 6 April 2001 the applicant was sentenced to 2 years' imprisonment for the first offence and 3 years' imprisonment for the second offence, with the second sentence ordered to be served cumulatively. The result was a total sentence of 5 years' imprisonment. The applicant was made eligible for parole and the sentence was directed to commence from the 16 March 2001.
When sentencing the applicant, the learned Judge discussed the circumstances of the first offence. They were that at some time in October 1997, the applicant had been working for a Mr Borsa who was then a target of a police officer, known as Operative 34. Mr Borsa and Operative 34 made an arrangement to meet. The applicant arrived at the scene driving a Ford motor vehicle. Mr Borsa and Operative 34 got into the back seat of the vehicle. Operative 34 purchased three bags of heroin from Mr Borsa for $3,000. During the course of a conversation, while they were both in the vehicle, Borsa said to the applicant, in reference to the sale of the drugs "What do you reckon?" The applicant replied "Seems ok." That sale was made on the 8 October 1997. It involved .98 of a gram, being 79 per cent heroin; 1.98 grams which was 80 per cent heroin, and 3.9 grams which was 78 per cent heroin. The total heroin sold on that occasion was 6.86 grams.
On the day of the second offence, being the 10 October 1997, a vehicle arrived to pick up the police officer. The vehicle was driven by the applicant. The applicant drove the police officer to a place where Mr Borsa was waiting and where he had hidden drugs. On that occasion, 13.8 grams of 80 per cent heroin was sold to the police officer for $5,500.
On the 29 October 1997 the applicant was interviewed on video and admitted knowing Borsa but denied involvement in the offences.
The applicant was tried before a jury. After her trial and conviction she wrote a letter to the Judge dated 29 March 2001 in which she said:
"I was always convincing myself I was innocent but I wasn’t, and I am really sorry for any inconvenience I have caused to the Courts."
In sentencing the applicant the learned Judge said that the applicant was then 44 years of age. In 1981 she had been charged in a Court of Petty Sessions with heroin use. Her mother had died some 18 months previously. The applicant had looked after her mother for some time before her death. Her father had major health concerns and suffered from palsy. He had recently suffered a stroke.
The applicant had been employed in various occupations prior to her offences. Those positions included employment as a dental assistant, a shop assistant, a barmaid and a packer. The applicant and her defacto husband owned their own home.
The learned sentencing Judge said that both the applicant and her husband had experimented with heroin and had undergone detoxification. They had been on methadone medication. The Judge was told that at the time of the offences the applicant had not been using heroin.
On the 18 May 2000 the applicant's co‑offender Mr Borsa had been sentenced for the same offences as the applicant plus other offences. He had pleaded guilty on the fast track system. He was told that he could have expected 4 years' imprisonment for the first offence of which the applicant had been convicted but due to all the circumstances that sentence was reduced to 3 years. With respect to the second offence for which the applicant had been convicted, Mr Borsa was told that ordinarily he could have expected to have received 5 years' imprisonment. However, that was reduced to 4 years' imprisonment. Both these sentences were ordered to be served concurrently.
When sentencing the applicant, the learned Judge said that obviously Mr Borsa had played a greater part in each of the relevant offences than the applicant had. However, it was clear from the facts that the applicant had known precisely what was going on at the time. Mr Borsa, whose driver's licence had been suspended, had been unable to drive himself.
The learned Judge took the view that the applicant had played a substantial part in the relevant offences. His Honour accepted that the applicant should receive a lesser sentence than Mr Borsa but noted that Mr Borsa had pleaded guilty on the fast track. The applicant had pleaded not guilty and had been found guilty after a trial by jury. Also Mr Borsa had been sentenced for a number of other offences as well as the two relevant offences. His total effective sentence was 12 years' imprisonment.
The prosecution had submitted that the heroin sold by Mr Borsa and the applicant had contained a high percentage of heroin and that the applicant's part in the offences had been something more than simply being a driver. She had taken part in a discussion concerning the heroin on the first occasion. On the second occasion she had collected the police officer and taken him to where Mr Borsa was. On that occasion she had indicated a willingness to take over supplying heroin to the police officer whilst Mr Borsa was away.
The learned Judge took the view that the applicant had been assisting with the infiltration of very high grade heroin into the community. His Honour noted that in relation to drug transactions of the relevant kind, personal antecedents were less important than general deterrence. His Honour took the view that the offences were far too serious for a non‑custodial sentence or a suspended sentence.
His Honour noted that Mr Borsa's sentence for the first relevant offence had been reduced from an appropriate sentence of 4 years' imprisonment to one of 3 years' imprisonment because of his fast track plea. He said that taking into account that the applicant had not pleaded guilty, he was of the view that the appropriate sentence of imprisonment for her in respect of that offence was a sentence of 2 years' imprisonment.
For the second offence, which had involved 13.8 grams of heroin, and concerning which Mr Borsa had been told that he could have ordinarily expected to receive a sentence of 5 years' imprisonment but which was reduced to 4 years' imprisonment to take account of his plea of guilty on the fast track, his Honour took the view that the proper sentence for the applicant was one of 3 years' imprisonment.
His Honour noted that both of Mr Borsa's sentences had been ordered to be served concurrently. However he said:
"… it needs to be remembered that Mr Borsa received cumulative sentences in relation to other matters and received a very substantial sentence, I think 10 1/2 years with a further 18 months in relation to the false passport. I am of the view that in your case those sentences should be served cumulatively."
The applicant now applies for leave to appeal from the effective sentence on the following grounds:
1.The learned sentencing Judge erred in making the respective terms of imprisonment cumulative when they should have been concurrent.
2.The sentence imposed was manifestly excessive in all of the circumstances of the case having regard to the following:
(a)The applicant's role in the offences;
(b)her limited involvement in any criminal conduct since the time of the offences;
(c)the lack of any prior significant record;
(d)the rehabilitation of the applicant;
(e)the personal antecedents of the applicant.
3.The learned sentencing Judge placed little if any reliance upon the psychologist's report which showed that the applicant had shown a marked tendency towards rehabilitation and as such failed to give any or any significant weight to that factor in the sentencing process.
4.The learned sentencing Judge erred in imposing the sentence which he did, having in regard to the sentence imposed in respect of the co‑accused Borsa.
5.The learned sentencing Judge sentenced the applicant incorrectly based on information in respect of the co‑accused Borsa when he was sentenced.
Before this Court it was submitted for the applicant that the cumulative sentences should have been ordered to be served concurrently. Reliance was placed on authorities such as Dicker v Ashton (1974) 65 LSJS (SA) and Murrell v The Queen (1984) 15 A Crim R 303. In the latter case, Blackburn J said at 315:
"In Australia there appears to be a practice of regarding a succession of crimes, each being the commission of the same offence committed within a short space of time, as appropriate for concurrent sentences, although this practice is not invariable."
It was submitted for the applicant that in the present case the same kind of offence was involved and that both offences had involved the same parties and the same co‑offender, with a similar facts scenario, with a limited role played by the applicant and a short timeframe between the two offences.
In Ward v The Queen (1999) 109 A Crim R 159 at 160[9] Malcolm CJ, with whom Ipp J and White J agreed, said:
"While it is appropriate to order that a number of offences arising out of the same transaction may justify concurrent sentences, where the offences occur on quite separate occasions and involve quite separate transactions, then unless the totality principle would require some other approach the sentences should be imposed cumulatively: Ruane v The Queen (1979) 1 A Crim R 284 per Wallace J at 286; Shaw v The Queen (1989) 39 A Crim R 343 at 347 per Benson J; and Van Thong Dao v The Queen, (unreported; CCA SCt of WA; No 106 of 1998, 22 January 1999) per Murray J at pp 15‑16."
In my view, having in mind the above principle, it could not be said in this case that the learned Judge erred in ordering that the sentences be served cumulatively. In this case the offences occurred on separate occasions and were quite separate offences.
It was next submitted that having regard to the principles of parity, as discussed in Lowe v The Queen (1984) 154 CLR 606 and having in mind that the total effective sentence for Mr Borsa for the two sentences was 4 years' imprisonment - due to the fact that his two sentences for the relevant offences, being three and four years respectively, were ordered to be served concurrently - the applicant's sentences should have been served concurrently. Reliance was also placed on Postiglione v The Queen (1997) 189 CLR 295.
In my view it cannot be said that the principle of parity applies in this case because although the two relevant sentences for Mr Borsa were ordered to be served concurrently, the learned Judge was aware that he had received a total effective sentence of 12 years' imprisonment. He had been sentenced for other offences at the same time. In Postiglione (supra) Dawson and Gaudron JJ said at p 301:
"The parity principle upon which the argument in this Court was mainly based, is an aspect of equal justice. Equal justice requires that like should be treated alike, but that, if there are relevant differences, due allowance should be made for them. In the case of co‑offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated."
Their Honours further said:
"However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co‑offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co‑offenders in question and their different degrees of criminality."
In Wong v The Queen [2001] HCA 64 Gaudron, Gummow and Hayne JJ said at par 65:
"To focus on the result of the sentencing task to the exclusion of the reasons which support the result, is to depart from fundamental principles of equal justice. Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect."
In the circumstances of this case, where Mr Borsa received 12 years' imprisonment and was fortunate enough to have the two relevant sentences ordered to be served concurrently, in my opinion there could be no justifiable sense of grievance in the applicant. The situation would have been different if Mr Borsa had only been sentenced for the two relevant offences and his sentences had been ordered to be served concurrently, but that is not the case. It is not a case where "like should be treated alike" within the meaning of the reasons in Lowe (supra) and Postiglione (supra).
With respect to the submissions made for the applicant concerning her limited role in the offences and her general antecedents and the prospects of her rehabilitation, in my view, it is significant that at the time she was sentenced the applicant was a mature woman of 44 years of age. She had been in a defacto relationship for 23 years and lived in her own home with her partner in a suburb of Perth. There is no reason I know of, such as a need for money, which could have caused the applicant to commit such serious offences.
The Misuse of Drugs Act 1981 provides for a maximum penalty of 25 years' imprisonment and a fine of $100,000 for the offence of selling heroin. That is an expression by Parliament of its view of the seriousness of the offences in this case. There is obvious and serious harm to the community resulting from the sale of heroin. That fact need hardly be restated. It is well known that the taking of heroin and other illicit substances has resulted in a significant increase in crime in this community. The question of deterrence is a prime factor for consideration - R v Ruich [2000] WASCA 84 at [14] per Pidgeon J within whom Kennedy and Ipp JJ agreed.
It is apparent from the fact that Mr Borsa asked the applicant at the time of the first offence, "What do you reckon?" and that the applicant replied "Seems ok", that the applicant was more than merely driving Mr Borsa. She was also present during the conversation between Mr Borsa and the undercover police officer. At the time of the second offence, there was a conversation between the undercover police officer and the applicant in which it was indicated that the undercover police officer could in the future deal with the applicant while Mr Borsa was away. Concerning that conversation, the learned sentencing Judge said:
"I should say that also during the course of the conversation which was taped, you indicated a willingness to take over supplying to Operative 34."
The combined offences involved a substantial quantity of heroin. In the first case there was 6.86 grams and in the second 13.8 grams. Both quantities had a very high purity. The applicant was fully aware of what was happening.
Mr Borsa received a term of 3 years' imprisonment for the first offence in which the applicant was concerned. The applicant received 2 years' imprisonment for that offence, but it should be noted that had Mr Borsa not pleaded guilty on the fast track the Judge said that he could have expected to receive 4 years' imprisonment. The applicant can be seen to have received half of the appropriate 4 years' imprisonment which Mr Borsa would have received had he not pleaded guilty for that offence.
With respect to the sentence for the second offence for which the applicant received 3 years' imprisonment, Mr Borsa was told that "ordinarily you could have expected 5 years' imprisonment but I am reducing that to 4 years' imprisonment." Again it can be seen that the applicant received 3 years' imprisonment for that offence as against the 5 years' imprisonment which Mr Borsa could have expected to receive had he not pleaded guilty at the first opportunity.
Having the above considerations in mind, in my view, counsel for the applicant was correct in conceding that the length of each of the two sentences in this case, (leaving aside for the moment whether the terms should have been made cumulative), was appropriate when the offences

are looked at individually. It was the making of the sentences cumulative, which was submitted to have resulted in an excessive sentence.

In addition, it was submitted for the applicant that she had only been employed by Mr Borsa to provide services of a domestic nature because he did not have a driver's licence. She was required to perform errands for him and to perform other domestic tasks. It was said that her personality was such that Mr Borsa would have had a high influence over her and would have been able to lead her into inappropriate behaviour. Concerning her personality a psychologist had given an opinion that:
"It would appear that Ms Davis would gain benefit from psychological treatment focusing on assisting her to utilise her supports and continue to build coping skills to manage family conflict and grief issues."
It is basic that the sentencing discretion of a Judge be not interfered with unless there is error. In Lowndes v The Queen (1999) 195 CLR 665 at 671, the Chief Justice of the High Court and six of the other Justices said:
"Of particular importance in the present case is the principle that a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the Appellant Court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice."
In this case, I cannot see any error on the part of the sentencing Judge when sentencing the applicant. It could not be said that the cumulative effect of the sentences is too great when the seriousness of the offences is considered. Parity with Mr Borsa is not appropriate in the light of the decided cased referred to earlier in these reasons. The combined sentence was well within the discretion of the sentencing Judge and applying the words of the Justices of the High Court in Lowndes (supra), the sentence should therefore not be interfered with.

I would refuse the application.
PARKER J: I agree for the reasons now published by Wallwork J that this application for leave should be dismissed.

OLSSON AUJ: I have had the advantage of reading the reasons for judgment of Wallwork J in draft.
I agree that the application should be dismissed for the reasons which he has expressed.