Delovski v The Queen
[2002] WASCA 88
•18 APRIL 2002
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| TITLE OF COURT : | COURT OF CRIMINAL APPEAL | |
| CITATION | : | DELOVSKI -v- THE QUEEN [2002] WASCA 88 |
| CORAM | : MALCOLM CJ WALLWORK J TEMPLEMAN J | ||
| HEARD | : 12 FEBRUARY 2002 | ||
| DELIVERED | : 18 APRIL 2002 | ||
| FILE NO/S |
| ||
| BETWEEN | : SASO DELOVSKI |
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Judgment and punishment - Sentencing - Sentence of imprisonment for 9 years for possession of heroin with intent to sell or supply - 524 grams of 25 per cent purity - Aplicant agreeing to take over implementation of transaction from his brother who was the organiser and sentenced to 9-1/2 years - Plea of guilty - Applicant a non-citizen liable be deported upon release on parole - Whether sentence reflected the respective roles of the applicant and his brother
Legislation:
Criminal Code Act Compilation Act 1913 (WA), s 689(3)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
[2002] WASCA 88
Result:
Application for leave to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Applicant | : | Ms K J Farley |
| Respondent | : | Mr D Dempster |
Solicitors:
| Applicant | : | Unrepresented Criminal Appellants Scheme |
| Respondent | : | State Director of Public Prosecutions |
Case(s) referred to in judgment(s):
Lam v R, unreported; CCA SCt of WA; Library No 960492; 5 August 1996
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
Quach v The Queen [1999] WASCA 210
Thom v The Queen [2001] WASCA 322
Case(s) also cited:
Nil
[2002] WASCA 88
MALCOLM CJ
MALCOLM CJ: This was an application for leave to appeal against sentence. On 7 February 2001 the applicant was convicted in the District Court at Perth on his plea of guilty to an indictment which alleged one count that on 26 May 2000 at Highgate the applicant had in his possession a prohibited drug, namely heroin, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The applicant was remanded in custody for sentence on 2 March 2001. On that day Healy DCJ heard submissions regarding sentence and made a declaration that the applicant was a drug trafficker. On 9 March 2001 the learned Judge sentenced the applicant to imprisonment for 9 years backdated to 26 May 2000. In imposing the sentence the learned Judge indicated that an appropriate sentence for the offence was imprisonment for 12 years which was reduced to 9 years by reason of the applicant's plea of guilty.
The applicant seeks leave to appeal on the grounds that:
"1. The sentence imposed was manifestly excessive in all the
circumstances.2. The learned sentencing Judge failed to give sufficient weight to matters put by way of mitigation. 3. The learned sentencing Judge erred in his findings concerning the role of the offender in the commission of the offence."
3 These grounds are quite uninformative and devoid of particulars.
However, the applicant was represented by the Supervising Solicitor of the Unrepresented Criminal Appellants Scheme and further and better particulars are contained in the very helpful submissions prepared for the Court by Ms Farley.
4 The facts as stated by counsel for the Crown and accepted by the
learned Judge were that at about 9.20 am on 24 May 2000 the applicant arrived at the Perth Domestic Airport on a flight from Melbourne, having travelled under a false name. The following morning he met a co-offender, one Vaselinov, at the Perth Train Station at about 9.30 am. Vaselinov was acting as a courier for the heroin which had been provided to him by another offender who had also been charged in Melbourne. The applicant and Vaselinov travelled to the Pacific Motel in Harold Street, Highgate and booked a room under Vaselinov's name after the applicant had given the false name he was using to the receptionist. They later went to the hotel room where Vaselinov handed the heroin to the applicant.
[2002] WASCA 88
MALCOLM CJ
Later that day the applicant travelled by taxi to the Morley Galleria Shopping Centre and met a third offender to whom he handed over a sample of the heroin.
5 At about 10.25 am on the following day, 26 May 2000, the applicant
attended at Eagle Bay Motors in Beaufort Street, Highgate to arrange the handover of the heroin to the intended customer. Before the intended customer arrived, the applicant was apprehended by detectives from the Organised Crime Investigation Unit. He was taken back to his motel room where a search warrant was executed. Police found 524 grams of heroin of approximately 25 per cent purity wrapped in plastic under a bedside table. Other wrapping and packaging relating to the heroin was found in a waste bin. The applicant was interviewed at the scene and denied any knowledge of the drug. He later participated in a video-recorded interview at the police station. In the meantime, the intended customer had been apprehended and charged.
6 It appears that it was arranged between the applicant and Vaselinov
that he would drive the applicant's car from Melbourne to Adelaide from where he would catch the train from Adelaide to Perth and meet the applicant in Perth.
7 On 31 August 2000 Vaselinov pleaded guilty in respect of his role
and was sentenced to imprisonment for 4 years, that sentence being reduced from one of imprisonment for 8 years on the basis of his co-operation with the authorities.
8 As at 2 March 2001 the applicant had been in custody since 26 May
2000. The learned sentencing Judge was informed that the applicant was an unlawful non-citizen and that it was likely that he would be deported unless the Office of the Director of Commonwealth Prosecutions obtained a criminal justice stay certificate.
9 While it was acknowledged that the applicant was not involved in the
manufacture or importation of the heroin, it was submitted that for the purpose of sentencing he ranked at the upper end of the commercial hierarchy. Counsel for the prosecution said that he arranged the transport of the drug to Perth. He made arrangements to ensure that should he have come under suspicion, there was no risk of him being apprehended on the way to Perth. He was directly involved in the arrangements for completing the proposed sale in that he went to the Morley Galleria Shopping Centre and handed a sample of the drug to another offender. On this basis it was submitted that he was at the upper end of the scale.
[2002] WASCA 88
MALCOLM CJ
The bulk value of the 524 grams was said to be between $152,000 and $190,000 on a wholesale basis. If sold by the gram at street level, it would sell at about $750 per gram, making a total of $393,000.
10 An application was made to the sentencing Judge for a declaration
under s 32A of the Misuse of Drugs Act that the applicant was a drug trafficker. The learned Judge made the declaration and an order for forfeiture of the property. No order was made for the destruction of the drug at that stage.
11 The applicant's personal circumstances were that he was born in
Macedonia in 1971 and was aged 29 at the time of the commission of the offence. For some years he had been employed in the motor vehicle industry in Germany. He then returned to Macedonia. He arrived in Australia in the mid-1990s on a visitor's visa. He had a brother who was living in Melbourne. He applied for a permanent residence visa in 1997. In the meantime he obtained a visa which enabled him to work pending consideration of his application. Unfortunately, he was represented by an unregistered immigration agent. His application was refused and his working visa was withdrawn in about February 1999. He was then granted a bridging visa without an entitlement to work. From that time on the applicant lived with his brother in Melbourne and was dependent on him.
12 The learned Judge had a pre-sentence report regarding the applicant's
background which expressed the opinion that the applicant tended to minimise his involvement in the offence. At the same time, however, the applicant's former partner spoke of the kind way that the applicant treated her and the children. She says that it was unfortunate that the applicant did not confide in her when he was approached by his brother to become involved in the heroin transaction. The applicant's relatives submitted material to his Honour which spoke highly of his hard work and his dedication to his family. The report also indicated that while in custody the applicant had undertaken courses to improve his skills in various areas. The applicant had no prior record in Australia or overseas.
13 The applicant became involved in the commission of the offence
because he was under an obligation to his brother. His brother was the supplier, but was unable to make the trip to Perth because his wife was about to have a baby. The learned Judge accepted that the applicant's role was less than that of his brother, but greater than that of Vaselinov. The latter was a courier. The learned Judge concluded that the applicant was:
[2002] WASCA 88
MALCOLM CJ
"… more than a mere courier and [was] the person entrusted with the task of making the sale in Perth. You were the person who went to the shopping centre, met the co-offender, [and] had meetings lasting several minutes, although no sample was handed over.
You were the person who went to the caryard in Mount Lawley to arrange to hand over the heroin to the intended customer. You have not offered the prosecuting authorities the level of co-operation that Vaselinov had offered and therefore you can't expect the same discount that he got for co-operation."
14 Vaselinov was sentenced on 31 August 2000 after he had pleaded
guilty. The Judge who sentenced him referred to his high level of co-operation with the organised crime investigators and his willingness to give evidence. As in the case of the applicant, Vaselinov had been pressured to participate by the applicant's brother who had married his cousin. The Judge who sentenced Vaselinov classified him as a courier who had some knowledge of the quantity and quality of the heroin. He had been chosen because he had no prior record which might attract the attention of the police. He committed the offence in consideration of a payment of $5,000 and not to finance his addiction. The learned Judge noted that the quantity of the heroin and the purity in Quach v The Queen [1999] WASCA 210, namely 653 grams in rock form, was higher than in his case being 58 per cent to 63 per cent, with an estimated street value of $650,000, compared to the $393,000 in this case.
In Quach at [11] Ipp J, after a detailed review of a series of cases,
said:
"I shall therefore proceed to express my view as to what would be an appropriate range for cases involving possession of heroin with intent to sell or supply, involving quantities of between about 600 to 700 grams, having a purity of between about 55 per cent to 65 per cent, where the offender is a courier who is well aware of the quantity and quality of the heroin in his possession, who actively participates in attempting to conceal the heroin from detection, who commits the offence for commercial gain (and not solely to finance an addiction), and who is close to the source of importation. In my opinion, the appropriate range of sentences for cases of this kind is between 11 to 15 years' imprisonment. I have come to this conclusion after taking into account the various sentences to which I have
[2002] WASCA 88
MALCOLM CJ
referred above, the maximum term of imprisonment laid down by Parliament, the importance of the drug chain of a courier of the kind described, and considerations of the kind mentioned by Owen J in La Rosa, namely that there is 'considerable justification for "firming up" sentences generally for offences involving drug trafficking'."
16 While his Honour referred to possession by a person "close to the
source of importation" in a context where heroin was imported into Western Australia, the cases to which he referred were not limited to importations from overseas. Lam v R, unreported; CCA SCt of WA; Library No 960492; 5 August 1996 involved an importation from Sydney to Perth. That case involved 446.3 grams of heroin 70 per cent pure. The applicant in that case was described as "an active courier" who knew what he was doing. In that case a sentence of 8 years reduced from 10 years was upheld on appeal. In the present case the applicant was clearly very close to the source of the importation to Western Australia, namely, his brother.
17 Ipp J also made it clear in Quach at [27] that a sentencing "range" is merely a guide to appropriate sentences. It is not an exact measure and its limits are flexible rather than rigid. The approach by Ipp J in that case, with which Wallwork and White JJ agreed, was approved and adopted in Thom v The Queen [2001] WASCA 322 at [10] – [12] per Malcolm CJ with the agreement of Steytler J and Burchett AUJ.
18 Vaselinov was sentenced to imprisonment for 10 years reduced to
8 years after consideration of his plea of guilty and further reduced to
4 years for his co-operation with the authorities.19 The applicant's brother was sentenced to 12½ years reduced to
9½ years on account of his plea of guilty. The learned Judge concluded that the culpability of the applicant was less than that of his brother, but greater than that of Vaselinov in that he had conducted negotiations with the purchaser. The applicant's brother had organised the whole transaction, having set up the transaction, arranged for Vaselinov to transport the drugs and for the applicant to negotiate the sale and delivery of the drugs.
20 It was submitted on behalf of the applicant that the role of the
applicant's brother was considerably greater than that of the applicant and yet the applicant's sentence of 9 years was only 6 months less than the sentence imposed on his brother, leaving him with a justifiable sense of
[2002] WASCA 88
MALCOLM CJ
grievance. As a consequence, it was said to be manifestly excessive. The applicant played no organisational role. It was not suggested that the applicant stood to gain financially from the transaction. His motivation for committing the offence was that he felt obliged to assist his brother.
21 Counsel for the Crown contended that the learned Judge did not
assess the role of the applicant incorrectly because the applicant's role was clearly beyond that of a mere courier in that he "supervised the transaction". Vaselinov was a mere courier. By contrast, the applicant travelled to Perth by a different route, met with the courier in Perth and met with one of the two purchasers in Perth who were the co-accused. It was submitted that this meant that the applicant was more than a mere courier, because he was taking the place of his brother, who had organised the transaction from Melbourne. I accept that this is so, but the applicant was clearly a subordinate in the transaction and there was no evidence that he was otherwise previously involved in the drug trade or had a continuing role.
22 In these circumstances it was contended that, given that the sentence
of Dimi Delovski had a starting point of 12½ years reduced to 9½ years for his plea of guilty, the adoption of a starting point for the applicant of 12 years reduced to 9 years did not adequately reflect the difference of their respective roles and gave rise to a justifiable sense of grievance on the part of the applicant: cf Lowe v The Queen (1984) 154 CLR 606. That case was concerned with manifest disparity between co-offenders. In this case the contention is that there was insufficient disparity between the sentence imposed on the applicant having regard to his role being subordinate to that of his brother. There was also an issue of comparing the sentence imposed on the applicant and the courier, having regard to their respective roles to determine whether, on that basis, there was a justifiable sense of grievance: cf Postiglione v The Queen (1997) 189 CLR 295.
23 In my opinion the sentence of 9½ years imposed on the applicant's
brother reflected his role and the discount for his plea of guilty. It may be considered that the sentence imposed on the brother was somewhat moderate, but in my opinion, having regard also to the sentence imposed on Vaselinov, the applicant would not be entitled to feel any justifiable sense of grievance as a result of the sentence imposed upon him.
24 We were informed by counsel for the applicant at the hearing that the
applicant understood that he would not be considered for parole or granted parole, and would not be eligible for work release or home leave. Further,
[2002] WASCA 88
MALCOLM CJ
in a majority of cases the successful completion of a period of work release or home leave was necessary before parole would be granted. Counsel for the Crown indicated that the applicant was likely to be deported upon his release, whether on completion of his sentence or on parole.
25 Enquiries of the Parole Board indicate that the Board considers each
individual case and, if in all other respects a person is suitable for release on parole, he or she will be granted parole, notwithstanding that he or she will be immediately taken into the custody of the Department of Immigration for the purpose of deportation or removal. These arrangements reflect the provisions of s 4 of the Prisoners (Release for Deportation) Act 1989 (WA). Where a prisoner would have been suitable for release on parole the Board is required by s 4(1) to furnish a report to the Minister for Justice containing a recommendation whether an order of release should be made in respect of the prisoner. Such a recommendation will not be made unless the prisoner would otherwise have been suitable for release on parole: s 4(3). Where a report recommends that an order for release be made, the Government may order that the prisoner be released from prison into the custody of a person or persons specified in the order for the purposes of deportation: s 4(4). If the deportation is effected within the time specified in the order for release, the prisoner is deemed to have served his or her term of imprisonment.
This aspect of the case represents an additional consequence for the applicant by reason of his status in Australia as a non-citizen.
27 In my view it has not been demonstrated that there was any error by
the learned sentencing Judge in the exercise of his discretion. The appellant agreed to take on the role his brother would otherwise have taken in relation to the implementation of the proposed sale, which had been negotiated and organised by his brother.
28 The applicant's partner is supportive of him to the extent that she has
transferred to Western Australia with her children in order to provide some support for the applicant during his time in custody in Western Australia. If the applicant is deported she will follow him with her two young children who were born in Australia. This has caused the applicant considerable anxiety. In these circumstances, the service of a term of imprisonment in Western Australia will be more difficult for the applicant than in the normal case. In the case of the applicant's brother, his wife and son have already left Australia and returned to Macedonia.
[2002] WASCA 88
MALCOLM CJ WALLWORK J TEMPLEMAN J
29 So far as the Crown is concerned, we were informed that the
Department of Immigration takes the view that the applicant was unlawfully in Australia, and that should he be released from imprisonment on bail, the authorities would take immediate action to deport him from Australia. Similarly, when his non-parole period of imprisonment is served he will be deported from Australia immediately upon his release on parole.
30 The main argument of counsel for the Commonwealth was that the
applicant agreed to stand in the shoes of his brother who was the principal
organiser of the transaction.31 In all the circumstances I am of the opinion that the grounds of
appeal are without merit. For these reasons, while I would grant leave to
appeal I would dismiss the appeal.
WALLWORK J: I agree with the reasons for judgment of Malcolm CJ and to the orders which are proposed by his Honour.
There is nothing I wish to add.
TEMPLEMAN J: I agree with Malcolm CJ and Wallwork J that having regard to the applicant's level of criminality in arranging for the sale of heroin, he could not have any legitimate sense of grievance arising from the disparity between the sentence imposed on him and that imposed on his brother.
35 I have, however, been troubled by the applicant's personal
circumstances and whether those circumstances should have been given
greater weight in mitigation by the learned sentencing Judge.36 The circumstances include the fact that the applicant, who apparently
would have had some prospects of obtaining permanent residency in Australia, lost that opportunity as a result of entrusting his case to an unlicensed migration agent. As the learned sentencing Judge said, that was unfortunate for the applicant. It clearly placed him in a vulnerable position.
37 The result of the applicant's criminal conduct, in those
circumstances, is that it is almost inevitable he will be deported when released from custody. That may result in the sentence imposed on the applicant having a more adverse effect on him than it would on a comparable offender who was released into the community.
[2002] WASCA 88
TEMPLEMAN J
38 An additional consideration in this context is that the applicant has
no ties in Western Australia, although he does now have such support as his partner is able to give him. His partner and her children moved to Perth from Melbourne in order to be closer to the applicant.
39 The applicant instructed his counsel to inform the Court that if he is
deported, his partner and her children will follow him back to the Balkans. This will involve the relocation of two young Australian children to what is currently an unstable country with a different language and a different culture.
40 These are not matters to which the learned sentencing Judge referred
expressly: hence the submission that his Honour's discretion miscarried. However, the question which this Court has to consider, pursuant to s 689(3) of the Criminal Code, is whether a different sentence should have been passed. We are not necessarily concerned with the steps taken in determining that sentence.
41 In my view, accepting that the applicant's personal circumstances
were mitigating circumstances for the purposes of the Sentencing Act, the sentence of 9 years imprisonment imposed upon the applicant was not excessive. Indeed, it might be regarded as a somewhat lenient sentence. Even if the applicant had been no more than a courier, he might have expected the starting point for his sentence to be in the range 11 to 15 years imprisonment. In fact, the applicant's role was much greater than that of a courier.
42 Furthermore, the need for generally deterrent sentences in relation to
offences of this kind is such that the personal circumstances of an
offender will carry relatively little weight.
For these reasons, I agree that the applicant should be given leave to appeal but that his appeal should be dismissed.
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