Halmi v The State of Western Australia - [2013] WASCA 229

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HALMI -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 229

CORAM: BUSS JA
MAZZA JA
HALL J

HEARD: 19 AUGUST 2013

DELIVERED : 2 OCTOBER 2013

FILE NO/S: CACR 17 of 2013

BETWEEN: NICOLAE HALMI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :BOWDEN DCJ
File No  :IND 573 of 2012

Catchwords:

Criminal law - Appeal against sentence - Possession of 664.3 g of heroin with intent to sell or supply - Bulk of the drug having a high degree of purity - Late plea of guilty - Sentence of 10 years 6 months imprisonment - Whether sentence manifestly excessive

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms A S Rogers
Respondent: Mr J A Scholz

Solicitors:

Appellant: Abigail Rogers Barristers & Solicitors
Respondent: Director of Public Prosecutions (WA)

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

Aconi v The Queen [2001] WASCA 211
Bahn v The State of Western Australia [2008] WASCA 40
Civello v The State of Western Australia [No 2] [2008] WASCA 163
Delovski v The Queen [2002] WASCA 88
Galbraith v The State of Western Australia [2011] WASCA 70
Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19
Kitis v The State of Western Australia [2013] WASCA 34
Koncurat v The State of Western Australia [2010] WASCA 184
Neumann v The State of Western Australia [2013] WASCA 70
Ozan v The State of Western Australia [2013] WASCA 27
Pham v The State of Western Australia [2011] WASCA 244
Quach v The Queen [1999] WASCA 210
Sabau v The State of Western Australia [2010] WASCA 3
Smith v The State of Western Australia [2010] WASCA 176

BUSS JA: This is an appeal against sentence.
The appellant was convicted, on his late plea of guilty in the District Court, of three counts involving prohibited drugs.
Count 1 alleged that on 24 August 2011, at Osborne Park, the appellant sold heroin to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the Act). Count 2 alleged that, on the same date and at the same place as in count 1, the appellant had heroin in his possession, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act. Count 3 alleged that, on the same date as in counts 1 and 2 and at Glendalough, the appellant had heroin in his possession, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act.
On 17 January 2013, Bowden DCJ imposed individual sentences of immediate imprisonment, as follows:
Count 1:2 years;
Count 2:2 years; and
Count 3:10 years 6 months.
His Honour ordered that the individual terms be served concurrently. The total effective term of imprisonment was therefore 10 years 6 months. The sentences were backdated to 3 April 2012. A parole eligibility order was made.

The facts and circumstances of the offending

In June 2011, police from the Organised Crime Squad commenced Operation Quake. The operation involved physical surveillance and the lawful use of telephone intercepts. The appellant was the target. The operation culminated with the appellant's arrest on 24 August 2011.
At 1.55 pm on 24 August 2011, police observed the appellant emerge from a motor vehicle and enter a liquor store. Shortly afterwards, he emerged with a plastic bag which he deposited in his vehicle. He returned to the liquor store and a woman, Josephine Bosnjak, approached him. The appellant took something from the rear of her trousers with his right hand while Ms Bosnjak took something from the appellant's left hand. After this exchange, police apprehended them. Ms Bosnjak attempted to conceal something in her hand. It was a small white envelope wrapped in elastic bands. The envelope contained two quantities of heroin, namely 3.5 g at 27% purity and 0.45 g. These drugs were the subject of count 1.
After his arrest, police searched the appellant and found $1,200 cash in his pocket, $110 cash in his wallet, two mobile telephones and a set of keys. The police used one of the keys to unlock the appellant's vehicle. On searching the vehicle, the police found a vitamin bottle containing six small packages of heroin wrapped in plastic. One of the packages contained 3.47 g at 24% purity. Another contained 3.44 g at 21% purity. The remaining packages contained 0.42 g, 0.46 g, 0.45 g and 0.44 g respectively. The total quantity was 8.68 g. These drugs were the subject of count 2.
After searching the appellant's vehicle, police executed a search warrant at a flat in Glendalough where they believed the appellant was residing. During the search the police found heroin in the kitchen and master bedroom. The total quantity was 664.3 g with a purity ranging between 19% and 77%. These drugs were the subject of count 3.
In the kitchen, police located a blue freezer bag containing numerous rolled up plastic shopping bags. One of the shopping bags contained a brown paper bag. Inside the brown paper bag was a plastic bag wrapped in masking tape. The plastic bag wrapped in masking tape concealed two further plastic bags. One of these bags contained 27.9 g at 76% purity, 28.1 g at 76% purity, 28.1 g at 77% purity and 28.1 g at 73% purity. The other bag contained 56.2 g at 67% purity, 56.1 g at 64% purity and 56.4 g at 67% purity. The total quantity of heroin found in the blue freezer bag was 280.9 g.
In a light fitting in the master bedroom, police located a latex glove containing 55.9 g at 28% purity and a freezer bag containing two separate bags. In one of these bags there was 27.9 g at 49% purity, 27.8 g at 45% purity, 27.9 g at 46% purity and 27.9 g at 48% purity. In the other bag there was 28 g at 36% purity, 28.6 g at 37% purity, 28 g at 37% purity and 28 g at 36% purity.
In another light fitting in the master bedroom, police located three plastic containers. In one container, which was wrapped in masking tape, there were 17 pieces of plastic with quantities ranging between 3.38 g and 3.55 g and purities ranging between 21% and 27%. In the second container, there was a piece of plastic and three pieces of latex glove which concealed 20.8 g at 46% purity, 3.47 g at 19% purity, 7.02 g at 31% purity and 7.04 g at 36% purity. In the third container, which was wrapped in masking tape, there were 14 pieces of plastic with quantities ranging between 0.42 g and 0.48 g and purities ranging between 19% and 24%.
The total quantity of heroin found in the ceiling lights was 383.4 g.
The police also located in the appellant's unit numerous items commonly associated with drug dealing, namely:
(a)four mobile telephones, each of which was operational and not subscribed to the appellant;
(b)a large quantity of different sized bags, including clipseal bags, freezer bags and sandwich bags;
(c)a set of electronic scales in working condition;
(d)a large brown paper bag similar to the blue freezer bag;
(e)a 2 kg container of MSM;
(f)$2,900 cash in a toiletry bag;
(g)a number of money clips;
(h)two coffee grinders;
(i)glucose powder;
(j)bicarbonate of soda and icing sugar;
(k)disposable gloves;
(l)$10,000 cash in a pencil case; and
(m)telephone calls and SMS messages consistent with drug dealing.

The ground of appeal

The sole ground of appeal alleges that the sentence of 10 years 6 months' imprisonment imposed for count 3 was manifestly excessive.
On 13 April 2013, Mazza JA granted leave to appeal on this ground.

The appellant's submissions

Counsel for the appellant emphasised in her submissions the appellant's plea of guilty, poor health, drug and alcohol addiction and gambling addiction. Counsel also referred to the sentences customarily imposed for comparable offending. According to counsel, when all relevant sentencing factors are evaluated, in the context of the matters she emphasised and the standards of sentencing customarily observed, error in the exercise of the sentencing discretion should be inferred from the outcome.

The ground of appeal: its merits

The maximum penalty for the offence of possessing a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act, is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the Act.
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. All of these propositions are well‑established by the case law.
In the present case, the sentencing judge made the following observations and findings in his sentencing remarks:
(a)The total value of the heroin, the subject of counts 1, 2 and 3, if sold as it was packaged, was about $425,000. If it had been diluted and sold at street level quantities and purities, its total value would have been about $960,000 (ts 81).
(b)Ultimately, the appellant pleaded guilty. However, the first indication he gave of these pleas was on 26 October 2012, about four days before the commencement of his trial. As I have mentioned, the appellant was arrested on 24 August 2011. His Honour allowed a discount of 15% for the pleas of guilty (ts 81).
(c)The appellant was involved not only in distributing the heroin himself, but also in distributing the drug to other people whom he knew intended to sell or supply it to others in the community (ts 84).
(d)The appellant rented the flat in Glendalough. Drugs were brought to and hidden in those premises (ts 84).
(e)The bulk of the 664.3 g of heroin, the subject of count 3, had a high purity (ts 84).
(f)Although the appellant was using heroin at the time, his drug dealing clearly involved an element of commercial gain (ts 85).
(g)The appellant's moral and legal culpability was at the higher end. This was demonstrated by the quantity and the purity of the drugs, the amount of cash and the other paraphernalia located at the flat in Glendalough, the nature and extent of the packaging of the drugs and the content of telephone intercepts (ts 85).
(h)The appellant was 'significantly' involved in the criminal organisation responsible for the acquisition and distribution of the drugs (ts 85).
(i)The appellant was significantly involved in the carrying on of what was 'clearly a business' of drug dealing (ts 85).
Counsel for the appellant did not challenge any of his Honour's findings.
The appellant was born in Romania on 13 October 1966. He was aged 44 at the time of the offending and was 46 when sentenced. He has been married for more than 24 years and has two children aged 22 and 19.
The information before the sentencing judge included a psychological report dated 14 January 2013 from Ms Helen Fowler, who is a specialist clinical psychologist, and a pre‑sentence report dated 15 January 2013.
These reports indicate that the appellant has a long standing gambling addiction. Also, he is dependent on alcohol. During periods of his life he has been dependent on heroin. Ms Fowler expressed the view that the appellant engages in a variety of cognitive distortions that enable him to engage in gambling, substance abuse and offending. The appellant does not have any realistic strategies to reduce the risk of reoffending in a similar manner.
In 1996 the appellant was diagnosed with type 2 diabetes. He takes prescribed medication for this condition. He also suffers from chronic back pain, which he has 'managed' by the use of illicit substances, and hypertension. His Honour took into account that there would be 'difficulties as far as medication is concerned' in the treatment of the appellant's back in prison (ts 84).
The sentencing judge recognised that imprisonment would be a harsher penalty for the appellant than others because of his chronic back pain and because his wife and children reside in the eastern states (ts 84).
However, it was not suggested that the appellant's medical complaints could not be treated adequately in prison. Further, the chief executive officer of the department of Government principally assisting the Minister in the administration of the Prisons Act 1981 (WA) is under a duty to ensure that medical care and treatment is provided to the appellant in prison. See, generally, Smith v The State of Western Australia [2010] WASCA 176 [68] (Buss JA, McLure P & Mazza J agreeing).
The fact that the appellant has a chronic back condition and that his wife and children reside in another State carried very little weight. He was a man of mature years who had previously served a lengthy term of imprisonment for drug dealing. He was well aware of the risks and rewards associated with trafficking in illicit drugs including the reality of prison life.
The appellant's drug and alcohol addiction, and his addiction to gambling, were not mitigating factors. His offending would have been more serious if he did not suffer from these addictions and had engaged in drug dealing solely for commercial purposes.
The appellant pleaded guilty but it was a late plea. The discount of 15% given by his Honour was generous.
The appellant was not otherwise of good character. He had an extensive prior criminal record in New South Wales. Of particular significance is his conviction in 2004 for the offence of supplying heroin. He was sentenced to 7 years' imprisonment. On appeal, a retrial was ordered. The appellant was convicted again at the retrial. He was sentenced to 3 years 6 months' imprisonment with a non‑parole period of 2 years 6 months, as he had already spent 2 years 2 months in custody. The appellant was involved with others in the supply of about 1.7 kg of heroin with a high degree of purity. It was a planned and organised criminal activity. The appellant's role in the enterprise comprised, first, driving one of the co‑offenders to a particular place to deliver the heroin and, secondly, assisting in the wrapping of the drug.
The present offences occurred about 12 months after the appellant had completed the sentence for the New South Wales drug offence. The appellant could not be (and was not being) punished again for his previous drug offence in New South Wales. Also, the present offending was not aggravated by the fact that the appellant had a prior criminal record or that a previous sentence had not achieved the purpose for which it was imposed. However, his prior conviction for drug dealing reflected on his moral culpability for the present offending and underscored the need for personal deterrence.
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. But the mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. These propositions are also well‑established by the case law.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper limit of the range. See Neumann v The State of Western Australia [2013] WASCA 70 [30] (Buss JA, McLure P & Pullin JA agreeing).
I have examined numerous prior cases of offending against s 6(1) of the Act which have at least some features comparable to the appellant's offending. See Quach v The Queen [1999] WASCA 210; Aconi v The Queen [2001] WASCA 211; Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19; Delovski v The Queen [2002] WASCA 88; Bahn v The State of Western Australia [2008] WASCA 40; Civello v The State of Western Australia [No 2] [2008] WASCA 163; Sabau v The State of Western Australia [2010] WASCA 3; Koncurat v The State of Western Australia [2010] WASCA 184; Galbraith v The State of Western Australia [2011] WASCA 70; Pham v The State of Western Australia [2011] WASCA 244; Neumann; and the decisions cited in those cases. It is unnecessary to repeat the facts and the sentencing outcomes in all of the prior cases.
Counsel for the appellant relied, in particular, on Galbraith; Ozan v The State of Western Australia [2013] WASCA 27; Kitis v The State of Western Australia [2013] WASCA 34; and Neumann. I will review these cases.
In Galbraith, the offender was convicted, on his pleas of guilty on the fast‑track system, of, relevantly, possessing methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act. A sentence of 9 years' immediate imprisonment was imposed for this offence. The methylamphetamine was contained in two clipseal bags. The first bag contained 486 g with a 74% purity. The second bag contained 485.6 g with a 78% purity. When the police searched the offender's house they found clipseal bags, scales, $4,850 cash, a cutting agent and a 'tick list'. Although the offender was 'merely' a courier of the drugs:
(a)he was, to his knowledge, being trusted with the drugs by persons at a high level in the drug distribution chain;
(b)he knew that he was transporting a very large quantity of drugs at a wholesale level;
(c)he knew that the drugs would, after he had delivered them, be diluted by others for sale, with the result that a considerable quantity of drugs would come on to the market at street level;
(d)he agreed to transport the drugs voluntarily, and for the purpose of discharging a debt of $23,760 owing by him to his drug supplier and ingratiating himself with the supplier; and
(e)he had been entrenched in the drug trafficking subculture for some time, and had little insight into his criminal conduct.
The offender in Galbraith had an extensive criminal record in relation to illicit drugs, weapons and traffic matters. He sought leave to appeal against sentence on the ground that the term of 9 years' imprisonment was manifestly excessive. This court (Buss JA, McLure P agreeing) refused leave to appeal.
In Ozan, the offender and several co‑offenders, including the offender in Kitis, were charged on indictment with one or more offences against the Act. The offender in Ozan pleaded guilty, seven days before the commencement of his trial, to supplying methylamphetamine to another, contrary to s 6(1)(c) of the Act (count 1), and attempting to supply methylamphetamine to another, contrary to s 6(1)(c) read with s 33(1) of the Act (count 3).
Count 1 concerned the supply of 2.675 kg of methylamphetamine, having a purity ranging between 17% and 19%. The sentencing judge imposed a term of 2 years' imprisonment (reduced from 9 years in the application of the totality principle) for this offence. Count 3 involved an attempt to supply 4.983 kg of methylamphetamine, having a purity ranging between 53% and 69%. His Honour imposed a term of 12 years' imprisonment for this offence. The individual sentences were ordered to be served cumulatively. The total effective sentence was therefore 14 years' imprisonment.

The nature and extent of the offender's criminality in Ozan in relation to count 3 is apparent from the following:
(a)The offender was involved in a very significant drug enterprise and his role in the enterprise was important.
(b)The offender organised the transport from Sydney to Perth of what he knew was a substantial quantity of a prohibited drug that was intended for distribution into the community. After organising the transport of the methylamphetamine, the offender travelled to Western Australia to take custody of the vehicle in which the drugs were hidden and then to deliver the drugs to an associate. So, the offender was involved both in New South Wales and in Western Australia in relation to this transaction.
(c)The offender's involvement was not of a short duration and he appears to have carried out his work in New South Wales and Western Australia with a degree of autonomy. This indicates that he was trusted by more senior people in the criminal hierarchy.
(d)The nature and extent of the offender's involvement in the offending, and the trust reposed in him by more senior people in the criminal hierarchy, shows that the offender was not at the lowest level of the enterprise.
(e)The weight, purity and value of the methylamphetamine were matters of importance. As I have mentioned, the weight of the drugs was 4.983 kg and they had a purity ranging between 53% and 69%. This level of purity indicates that the drugs were close to the source of manufacture. Their value, at a purity ranging between 53% and 69%, was about $2,489,000. Upon the drugs being diluted to street level purity of about 10% ‑ 14%, their weight and value would have increased substantially.
(f)The offender took steps to avoid detection by the police. He systematically used false names.
(g)The offender committed count 3 in February 2010. At that stage, he had already committed the serious offence alleged in count 1.
(h)The offender's plea of guilty was a mitigating factor, but the plea was entered only seven days before his trial was listed to commence. His late acceptance of responsibility for the offence was accompanied by an attempt to minimise his culpability by claiming that he had acted under pressure. This claim was rejected by the sentencing judge.
(i)The offender was 25 when he committed the offence and 27 when sentenced. The seriousness of his offending was not mitigated by youthful inexperience.
(j)The offender's personal circumstances and antecedents, before he committed counts 1 and 3, were favourable. He did not have a relevant prior criminal record.
The offender in Ozan appealed against sentence on the ground, relevantly, that the term of 12 years' imprisonment for count 3 was manifestly excessive. This court (Buss JA, Martin CJ & Mazza JA agreeing) dismissed the appeal.
In Kitis, the offender was charged on indictment with two offences against the Act. The offences comprised attempting to possess methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the Act (count 5), and possession of methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act (count 6). The methylamphetamine, the subject of count 5 against the offender in Kitis, was also the subject of count 3 against the offender in Ozan. The offender in Kitis pleaded guilty, a few days before the commencement of his trial, to both offences alleged against him.
Count 5 concerned the attempted possession of 4.983 kg of methylamphetamine, having a purity ranging between 53% and 69%, with intent to sell or supply it to another. The sentencing judge imposed a term of 9 years' imprisonment for this offence. Count 6 involved the possession of 207.6 g of methylamphetamine, having a purity of 22%, with intent to sell or supply it to another. His Honour imposed a term of 3 years' imprisonment (reduced from 5 years in the application of the totality principle) for this offence. The individual sentences were ordered to be served cumulatively. The total effective sentence was therefore 12 years' imprisonment.
The offender's offending in relation to count 5 was very serious. I refer, in particular, to the following:
(a)The offender was part of a very significant drug enterprise. He willingly assumed an important function in connection with what was, to his knowledge, a substantial quantity of a prohibited drug that was intended for distribution into the community.
(b)The offender was a close acquaintance of a co‑offender, Mr Milenkovski. It was Mr Milenkovski who had arranged for the acquisition of the drugs from the suppliers. The offender's function was to act as a courier of the drugs for a short period and then to hide them at his brother's house, pending further instructions. Mr Milenkovski must have regarded the offender as trustworthy and able to be relied upon to carry out this role.
(c)The weight, purity and value of the methylamphetamine were matters of importance. As I have mentioned, the weight of the drugs was 4.983 kg and they had a purity ranging between 53% and 69%.
The offender's offending in relation to count 6 was also very serious. He was in possession of a substantial quantity of methylamphetamine with intent to sell at least part of it. The offender was carrying on the business of a drug dealer. The 207.6 g of methylamphetamine was, at least in part, stock in trade of this business. A search by police of the offender's house revealed he had $17,000 cash, which was, at least in part, derived from the drug dealing business. Other items found at the house, namely two sets of scales and a firearm, are part of the paraphernalia commonly associated with drug dealers.
The offender was 28 when he committed the offences and was 29 when sentenced. His personal circumstances and antecedents were, in general, reasonably good. His prior criminal record was minor.
The offender in Kitis appealed against sentence on the ground that the total effective sentence of 12 years' imprisonment infringed the first limb of the totality principle. This court (Buss JA, Martin CJ & Mazza JA agreeing) dismissed the appeal.
In Neumann, the facts and circumstances of the offending were, in summary, as follows.
Between 30 August 2010 and 11 September 2010, the offender conspired with Mr Cookson to import an unknown quantity of methylamphetamine from Sydney into Western Australia (count 1). The offender's associates, namely Mr Cameron, Mr Cookson and Ms Crews, collected amounts owing by third parties, for the sale or supply of prohibited drugs, to fund the purchase of methylamphetamine. Mr Cameron transferred the funds to Sydney, where the purchase was facilitated by another of the offender's associates, Ms Tresnjo. Mr Cameron delivered the methylamphetamine to Perth.
On 24 September 2010, police executed a search warrant at a home unit in South Perth. The offender and Mr Cameron were found removing methylamphetamine from four wrapped packages containing a total of 860.9 g of the drug, ranging in purity from 46% to 75% (count 3). The methylamphetamine in the four wrapped packages had been divided into 16 bags weighing about 28.3 g each (averaging 59.4% purity) and four bags weighing about 100 g each (averaging 70.75% purity).
Also on 24 September 2010, at the South Perth unit, police located a set of digital scales and 394.6 g of methylamphetamine in a plastic container which had been hidden behind a fire hose reel in the foyer outside the unit (count 2). Most of the drug had a purity of between 22% and 24%. The police found $7,100 cash in the offender's bag.
Police then carried out a search at the offender's home in Burswood. They found a black 'man bag' on the rear seat of his Porsche Cayenne motor vehicle. The bag contained a loaded Glock handgun. The manufacturer's serial number had been removed.
The offender was arrested. Later, he was released on bail.
On 28 December 2010, the offender, while on bail for counts 1, 2 and 3, was apprehended by police at the Burswood resort complex. He was in possession of 18.2 g of methylamphetamine with a purity of 22% (count 4), a set of electronic scales, $5,000 cash in a black bag, $1,545 cash in his wallet and a 'tick list'. The police also seized a further $70,050 cash from the offender's hotel room.
The offender committed count 1 in August or September 2010, counts 2 and 3 in September 2010 and count 4 in December 2010. He did not enter pleas of guilty until 16 April 2012. By that date, his trial had been listed to begin on 6 August 2012.
The sentencing judge made the following findings of fact:
(a)The high degree of purity of the 860.9 g of methylamphetamine indicated that the offender was close to the source of manufacture.
(b)The offender was the leader of the group comprising the people named in the indictment and Mr Cameron. He arranged for the purchase of the drugs in New South Wales and their transport by courier to Perth.
(c)Telephone intercept material demonstrated that the offender made the executive decisions within the group.
(d)The offender was at a high level in the chain of drug distribution. He was involved in financing, planning, transporting, cutting, repackaging and reselling the drugs.
(e)On arrival in Perth, the offender was apprehended while unpacking, cutting and preparing the drugs for resale at a profit.
(f)The offender was a drug user, but he was not dealing merely to fund his own habit.
(g)There was a high level of commerciality involved in the offending.
His Honour identified the following aggravating factors:
(a)the offending the subject of count 4 was committed while the offender was on bail; and
(b)the offender possessed a loaded handgun.
The offender in Neumann appealed against sentence. He contended that the individual sentence of 10 years' imprisonment for count 3 was manifestly excessive and the total effective sentence of 15 years' imprisonment infringed the first limb of the totality principle. This court (Buss JA, McLure P & Pullin JA agreeing) dismissed the appeal.
It is apparent that:
(a)Galbraith is distinguishable from the present case in that the offender pleaded guilty on the fast‑track system and he was 'merely' a courier of the drugs.
(b)The quantity of methylamphetamine the subject of count 1 in Ozan was significantly larger than the quantity of heroin the subject of count 3 in the present case, but the purity of the drug in the present case was higher. The quantity of methylamphetamine the subject of count 3 in Ozan was significantly larger than the quantity of heroin the subject of count 3 in the present case, but the degree of purity of the drugs in Ozan was reasonably comparable to the bulk of the drugs in the present case. The appellant was involved in an ongoing business of drug dealing. His role and activities within the business appear to have been more senior than, and at least as extensive as, those of the offender in Ozan. The appellant had a prior conviction for a serious drug dealing offence whereas the offender Ozan did not have a relevant prior criminal record.
(c)The role and activities of the offender in Kitis in relation to the 4.983 kg of methylamphetamine were less significant than the role and activities of the appellant in relation to the heroin the subject of count 3 in the present case. The personal circumstances and antecedents of the offender in Kitis were more favourable than those of the appellant.
(d)The quantity of the methylamphetamine the subject of count 3 in Neumann was reasonably comparable to the quantity of the heroin the subject of count 3 in the present case. The purity of the drug the subject of count 3 in Neumann was reasonably comparable to the purity of the bulk of the drug the subject of count 3 in the present case. The role and activities of the offender in Neumann in relation to the 860.9 g of methylamphetamine were reasonably comparable to the role and activities of the appellant in relation to the 664.3 g of the drug in the present case. The offender in

Neumann entered a plea of guilty at an earlier stage than the appellant in the present case.

After considering the individual facts and circumstances of each of the cases, I am satisfied that there is broad consistency between the sentencing outcome in the present case, on the one hand, and the sentencing outcome in each of Galbraith, Ozan, Kitis and Neumann, on the other.
In my opinion, the sentence of 10 years 6 months' imprisonment imposed on the appellant for count 3 was within the range of a sound exercise by the sentencing judge of his discretion. The sentence was commensurate with the seriousness of the offence after taking into account the maximum penalty, the facts and circumstances of the offending, the general standards of sentencing for offences of this kind, the appellant's personal circumstances and antecedents and all other relevant sentencing factors. The principal sentencing considerations were appropriate punishment and personal and general deterrence. The term of 10 years 6 months' imprisonment was not unreasonable or plainly unjust. I would not infer error from the sentencing outcome.
The ground of appeal fails.

Conclusion

The appeal should be dismissed.
MAZZA JA: I agree with Buss JA.
HALL J: I agree with Buss JA.