Guy v The Queen
[2004] WASCA 9
•22 JANUARY 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: GUY -v- THE QUEEN [2004] WASCA 9
CORAM: TEMPLEMAN J
WHEELER J
WALLWORK AJ
HEARD: 10 DECEMBER 2003
DELIVERED : 22 JANUARY 2004
FILE NO/S: CCA 72 of 2003
CCA 73 of 2003
BETWEEN: ANDREW GUY
Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appeal against conviction - Aiding possession of prohibited drug - Whether conviction possible for offence different to offence charged against principals - Whether circumstantial evidence sufficient for inference of guilt
Appeal against sentence - Whether finding as to culpability justified - Whether disparity with principal's sentence
Legislation:
Criminal Code, s 7
Customs Act 1901 (Cth), s 233B
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 11
Result:
Appeal against conviction dismissed
Application for leave to appeal against sentence dismissed
Category: B
Representation:
Counsel:
Appellant: Mr B J Singleton QC & Mr R P K Soh
Respondent: Mr R E Cock QC & Ms S J Yeo
Solicitors:
Appellant: Tan & Tan
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Angeleski v The Queen [2003] WASCA 209
Darwell v The Queen (1997) 94 A Crim R 35
Evans v The Queen [2003] WASCA 194
Humphry v The Queen [2003] WASCA 53
Kirby v The Queen [2003] WASCA 164
Mustafa v The Queen [2002] WASCA 243
R v Wan Nai Poon (2003) 56 NSWLR 284
Wong v The Queen (2001) 207 CLR 584
Case(s) also cited:
He Kaw The v The Queen (1985) 157 CLR 523
Krakouer v The Queen (1998) 194 CLR 202
Lai v The Queen [1990] WAR 151
Snow v Cooper (1944) 57 WALR 92
Wilson v Dobra (1955) 57 WALR 95
TEMPLEMAN J: The appellant appeals against his conviction on 5 May 2003, following a trial by Judge and jury in the District Court, on a single charge, pursuant to s 6(1)(a) of the Misuse of Drugs Act 1981: namely that,
"On 17 July 2001 at Perth ANDREW GUY had in his possession a prohibited drug, namely, 3,4‑methylenedioxy‑n, alpha‑dimethylphenylethylamine (MDMA), with intent to sell or supply it to another."
Following his conviction, the appellant was sentenced to a term of 12 years' imprisonment with eligibility for parole. He was declared a drug trafficker pursuant to s 32A of the above Act.
Should his appeal against conviction be unsuccessful, the appellant seeks leave to appeal against his sentence.
The appeal against conviction
On 17 July 2001, Federal police officers found 4,256 tablets of MDMA hidden in a soft toy in the luggage of one Nathan Skelton shortly after he arrived at Perth airport, on a flight from Sydney. The drug (to which I shall refer as "ecstasy") weighed 1,366.1 grams and was of 20 to 25 per cent purity.
The Crown case against the appellant was that he and one Geoffrey Tooth had planned to obtain the ecstasy in Sydney and bring it into Western Australia for commercial distribution.
Although the charge against the appellant was that he had the ecstasy in his possession, it was never the Crown case that the appellant had physical possession of the drug. The Crown case was that Mr Skelton was in possession of the ecstasy as a courier acting on behalf of Mr Tooth: and that he was so acting as part of a plan made by Mr Tooth and the appellant to bring the ecstasy into Western Australia. The Crown contended that certain acts carried out by the appellant in the implementation of that plan resulted in his being an aider, so as to render him criminally liable pursuant to s 7(c) of the Criminal Code.
The Crown relied on the commission of those acts and various statements made by the appellant in the course of telephone conversations which had been intercepted by Federal police officers. The appellant admitted the acts and that he had been party to the various telephone conversations. He sought to place innocent interpretations on all these matters.
The threshold question
During the hearing of the appeal, it emerged that Mr Skelton and Mr Tooth had not been charged under the Misuse of Drugs Act: they had been charged under s 233B of the Customs Act 1901 (Cth) with possessing a prohibited import, that being the ecstasy the subject of the charge against the appellant.
The question thus arose whether the appellant could properly have been convicted of aiding Mr Tooth and Mr Skelton to commit a different offence from that with which he had been charged. After hearing some argument, the Court gave leave to counsel for the appellant and for the Crown to file further outline of submissions dealing with the point. Having considered those submissions, I am of the view, for the following reasons, that the appellant was properly charged under the Misuse of Drugs Act.
Section 7 of the Criminal Code imposes criminal liability on (inter alia) an aider "when an offence is committed". Those words do not make it necessary for an offender to have been convicted of the offence: nor even to have been charged. Thus, for example, a person who aided a robber by driving the getaway vehicle might be charged and convicted by the application of s 7 of the Code, even though the robber had evaded capture and could not be identified. In Humphry v The Queen [2003] WASCA 53, Malcolm CJ (with whom Anderson and Miller JJ agreed) said at par 46:
"The words '[w]hen an offence is committed …' do not require that the principal offender be convicted before another may be found liable as a party to the offence: R v Lopuszynski [1971] QWN 33. It is sufficient that the commission of an offence by someone is established in the case against the alleged accessory …"
His Honour went on to say:
"In Wilson v Dobra (1955) 57 WALR 95, it was held that s 7 of the Criminal Code has general application to all offences punishable by the criminal law of Western Australia in whatever Court triable. Further, the operation of s 7 is not confined to offences created by the Criminal Code: West v Suzuka [1964] WAR 112."
That proposition assumes no inconsistency between Federal and State laws in relation to the possession of prohibited imports. The question whether any such inconsistency exists has not been raised by the appellant and need not be considered. It is not in the appellant's interest to raise the question: greater penalties are prescribed for possession under the Customs Act 1901 (Cth) than under the Misuse of Drugs Act 1981.
Applying the above principle to the present case, it was necessary for the Crown to prove that Mr Skelton had the ecstasy in his possession, with intent to supply it to another. This the Crown did. There was uncontested evidence from Ryan Cameron Brandley, a Federal police officer (AB vol 2 page 39), that he had been involved in the search of Mr Skelton's luggage following his arrival from Sydney on 17 July 2001, when the ecstasy was detected.
The quantity of ecstasy was such that, pursuant to s 11 of the Misuse of Drugs Act, Mr Skelton was deemed to have had the ecstasy in his possession with intent to sell or supply it to another.
I therefore conclude that Mr Skelton was guilty of an offence under s 6(1)(a) of the Misuse of Drugs Act, and that accordingly, the appellant was charged appropriately.
The merits of the appeal
In his amended grounds of appeal, the appellant contends as follows:
"1.The evidence adduced against the Appellant was not capable of establishing in law that the Appellant was in possession of the drug concerned.
2.His Honour Judge Groves erred in law in that he directed the jury that there was no alternate verdict open to them to find.
3.His Honour Judge Groves erred in law by removing from the jury's consideration a finding of 'an attempt' to possess a drug, thereby adversely affecting the Appellant as to the alternative penalties available under s33(1)(c) and (d) of the Misuse of Drugs Act 1982 (WA) (MDA).
4.His Honour Judge Groves erred in law as by precluding a finding of 'an attempt' to possess a drug, His Honour could never be able to apply the provisions referred to under s33(1)(c) and (d) of the MDA."
The evidence to which ground 1 relates was circumstantial. It included the following:
•While Mr Tooth was in Bali, the appellant, at his request, purchased for him
-an air ticket from Perth to Sydney
- an ecstasy test kit
-a mobile telephone in a false name
•Shortly before Mr Tooth's departure from Perth to Sydney, the appellant paid him $15,000 in cash.
•Although the appellant gave evidence that he had loaned the sum of $15,000 to Mr Tooth, in telephone conversations with third parties after 17 July 2001, he spoke of having lost a lot of money.
•In a telephone conversation with a former employer on 21 July 2001, the appellant said "we had a real big one go down" and that "one point five million dollars worth of stock have gone".
The appellant's case is that no jury, properly instructed, could have drawn inferences adverse to the appellant which satisfied them beyond a reasonable doubt of his guilt. In other words, that the appellant knew of Mr Tooth's plan to acquire the ecstasy in Sydney and bring it to Perth, and that he intended to assist Mr Tooth in the implementation of that plan.
It is not necessary to refer to the way in which the learned trial Judge directed the jury in this case. It is clear that his Honour gave the jury proper directions about drawing inferences and use which might be made of them. No complaint has been made about those directions.
In my view, in all the circumstances, the jury were fully entitled to return their unanimous verdict of guilty.
In reaching that conclusion, I am satisfied that there is no merit in the appellant's grounds 2, 3 and 4. In these grounds, the appellant complains about the fact that the learned trial Judge did not direct the jury that an alternative verdict was open to them, namely, an attempt to commit the offence charged.
As I have already noted, the Crown case was that Mr Skelton was in possession of the drugs found in his luggage. The appellant was either a party to a plan to purchase the ecstasy and have Mr Skelton bring it to Perth, or he was not. That is to say, if the jury were not satisfied beyond a reasonable doubt of the appellant's involvement, in accordance with the Crown case, the only proper verdict was an acquittal. There was no basis on which the appellant could have been convicted of attempting to possess the ecstasy when it was never part of the case against him that he would have the ecstasy in his possession at any time.
For all these reasons, I would dismiss the appeal.
The application for leave to appeal against sentence
As I have noted, the appellant was sentenced to a term of 12 years' imprisonment with eligibility for parole. In addition, the appellant was declared to be a drug trafficker. In the single ground on which his application for leave to appeal is based, the appellant contends that the sentence was manifestly excessive.
The learned sentencing Judge sentenced the appellant on the basis that he was "a wholesale commercial distributor" of the ecstasy (AB 23). While the Judge did not place the appellant at the level of an importer or manufacturer of the ecstasy, his Honour was satisfied that the appellant was "nevertheless close to the higher end of the scale of the responsibility for the dealing in the drugs seized" (AB 25).
The learned Judge took into account the appellant's previous good character, his employment history and lack of any criminal record (AB 21). His Honour took into account also the fact that the appellant's house and car would have to be sold (AB 21).
Against that, his Honour noted that the appellant had shown no remorse and that he had become involved in the enterprise not for the purpose of funding his own drug use but purely for commercial gain. His motivation was greed. In addition, the appellant had been prepared to jeopardise others who were drawn into the enterprise (AB 22).
The appellant submits that he was far less culpable than Messrs Tooth and Skelton. Unlike them, the appellant contends, he had no dominion or control over the ecstasy. They were the active participants in the enterprise while his role was as a facilitator only. He supplied funds, purchased the airline ticket, the ecstasy test kit and the mobile telephone.
In these circumstances, it is submitted, the appropriate range of sentences for the appellant should have been between 7 and 10 years' imprisonment. The appellant relies on R v Wan Nai Poon (2003) 56 NSWLR 284 and Wong v The Queen (2001) 207 CLR 584.
However, both of those cases were concerned with offenders who were, essentially, couriers. In my view, the learned sentencing Judge in the present case was fully justified in placing the appellant at a much higher level than a courier. His culpability was rendered no less by the fact that he was a facilitator. The appellant played an important role in the enterprise, which was obviously designed to minimise the risk of detection.
Ecstasy forms part of the group of drugs known generally as amphetamines. They are now regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs. They are close enough to heroin and cocaine to be included in the same category: Darwell v The Queen (1997) 94 A Crim R 35 at page 40 per Malcolm CJ, with whom Kennedy and Franklyn JJ agreed. As Steytler J said in Angeleski v The Queen [2003] WASCA 209 at [14], a generally high starting point has been adopted for sentences imposed for traffic in methylamphetamines, at least in more recent years and for cases involving large quantities of the drug. Anderson and Miller JJ agreed with his Honour.
In the present case, the learned sentencing Judge had regard to recent decisions of the Court of Criminal Appeal in considering the appropriate sentence to be imposed on the appellant. Although his Honour did not refer specifically to any such decisions - and rightly observed that they could be used only as guidance - there can be no doubt that the sentence of 12 years' imprisonment was less than sentences imposed in broadly comparable cases: see Kirby v The Queen [2003] WASCA 164, Evans v The Queen [2003] WASCA 194 and Mustafa v The Queen [2002] WASCA 243.
As the learned Judge rightly said:
"The quantity of ecstasy seized was significant and the circulation of that quantity of narcotics in the community could
reasonably be expected to have various severe consequences. The sentence which I impose must send a very clear message to other like‑minded drug traffickers. Persons who believe there is easy money to be made by preying on the vulnerabilities of young people must expect that they will face lengthy terms of imprisonment for such offending. General deterrence and punishment must be uppermost."
I am not persuaded, therefore, that the sentence imposed on the appellant was manifestly excessive.
Nor am I persuaded that there was any disparity between the sentence imposed on the appellant and that imposed on Mr Skelton. He had pleaded guilty and was sentenced before the appellant's trial.
Mr Skelton was sentenced to a term of 7 years' imprisonment with a non‑parole period of 3 ½ years. However, he received a substantial discount because of his early plea of guilty on the fast‑track system, his cooperation with the authorities and his promise of future cooperation. But for those matters, Mr Skelton would have received a sentence of 11 years' imprisonment with a non‑parole period of 5 ½ years. In my view, that was an entirely appropriate sentence for a courier, such as Mr Skelton, who had also performed an important role in packaging the drugs in such a way as to minimise the risk of detection.
Mr Tooth was sentenced after the appellant. He pleaded guilty at a late stage and received a sentence of imprisonment of 9 years with a non‑parole period of 4 ½ years.
The learned Judge who sentenced Mr Tooth appears to have done so on the basis that he and the appellant "were acting in concert in a common enterprise to possess the ecstasy and to have it brought to Perth where it would be disposed of" (AB 99). That being so, the sentence of 9 years' imprisonment following a plea of guilty imposed on Mr Tooth, who had a comparable background to the appellant was, I think, entirely appropriate.
Although the appellant did not raise the question of disparity in his ground of appeal, it was raised in his outline of submissions. However, I see no merit in this point either – particularly as Messrs Tooth and Skelton were sentenced under the Federal legislation. I would therefore dismiss the application for leave to appeal.
WHEELER J: I have had the advantage of reading in draft the reasons for decision of Templeman J. I agree with them and have nothing to add.
WALLWORK AJ: I agree with the reasons for judgment and conclusions of Templeman J.
There is nothing I wish to add.
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