Hiron v The Queen

[2003] WASCA 310

HIRON -v- THE QUEEN [2003] WASCA 310

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 310
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:10/2003	Heard:	6 NOVEMBER 2003
Coram:	MILLER J MCKECHNIE J WALLWORK AJ	Delivered:	10/12/03
No of pages:	22	Judgment Part:	1 of 1
Result:	Leave to appeal against sentence granted Appeal dismissed
Category:	B
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Parties:	KYAL PETER HIRON THE QUEEN
Catchwords:	Criminal law Sentence Drug offences Whether sentences should have been cumulative Whether penalty of forfeiture of $10,000 sufficiently taken into account Turns on own facts
Legislation:	Crimes (Confiscation of Profits) Act 1988 (WA) Criminal Property Confiscation Act 2000 (WA) Misuse of Drugs Act 1981 (WA) Sentencing Act 1995 (WA)
Case References:	Bowman v The Queen (1995) 14 WAR 466 Hammoud (2000) 118 A Crim R 666 Jarvis v The Queen (1999) 20 WAR 201 Kirby v The Queen [2003] WASCA 164 Langridge v The Queen (1996) 17 WAR 346 Lowndes v The Queen (1999) 195 CLR 665 Mada v The Queen [2003] WASCA 1 R v Rintel (1991) 3 WAR 527 Rintel v The Queen (1993) WAR 527 Fox v Percy (2003) 197 ALR 201 Paparone v The Queen (2000) 112 A Crim R 190 Pieri v The Queen [2001] WASCA 357 R v Baxter, unreported; CCA SCt of WA; Library No 9073; 26 September 1991 R v Brown (1982) 5 A Crim R 404 R v Carey (1975) 11 SASR 575 R v Olbrich (1999) 199 CLR 270 R v Weston [2000] WASCA 389

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HIRON -v- THE QUEEN [2003] WASCA 310 CORAM : MILLER J

MCKECHNIE J
WALLWORK AJ

HEARD : 6 NOVEMBER 2003 DELIVERED : 10 DECEMBER 2003 FILE NO/S : CCA 10 of 2003 BETWEEN : KYAL PETER HIRON

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Sentence - Drug offences - Whether sentences should have been cumulative - Whether penalty of forfeiture of $10,000 sufficiently taken into account - Turns on own facts

Legislation:

Crimes (Confiscation of Profits) Act 1988 (WA)

Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA)

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Result:

Leave to appeal against sentence granted

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant : Ms J Fordham
Respondent : Mr J Mactaggart

Solicitors:

Applicant : Kott Gunning
Respondent : State Director of Public Prosecutions

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

Bowman v The Queen (1995) 14 WAR 466
Jarvis v The Queen (1999) 20 WAR 201
Kirby v The Queen [2003] WASCA 164
Langridge v The Queen (1996) 17 WAR 346
Lowndes v The Queen (1999) 195 CLR 665
Mada v The Queen [2003] WASCA 1
R v Hammoud (2000) 118 A Crim R 66
Rintel v The Queen (1991) 3 WAR 527

Case(s) also cited:

Fox v Percy (2003) 197 ALR 201
Paparone v The Queen (2000) 112 A Crim R 190
Pieri v The Queen [2001] WASCA 357
R v Baxter, unreported; CCA SCt of WA; Library No 9073; 26 September 1991
R v Brown (1982) 5 A Crim R 404
R v Carey (1975) 11 SASR 575
R v Olbrich (1999) 199 CLR 270
R v Weston [2000] WASCA 389

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1 MILLER J: The applicant faced two indictments in the District Court at Perth. The first, dated 2 April 2002, alleged two offences against s 6(1)(a) of the Misuse of Drugs Act 1981. They were each charges that on 28 May 2001 at Perth he had in his possession a quantity of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. There was a second indictment dated 22 July 2002 which alleged a further offence against s 6(1)(a) of the Misuse of Drugs Act. It was that on 29 November 2001 at Mandurah the applicant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.

2 The applicant appears to have first been presented before the District Court on 20 December 2001. On 18 November 2002 he eventually pleaded guilty before Healy DCJ to the charges contained on the two indictments. The facts revealed the following:

Indictment 2 April 2002

3 On 28 May 2001 detectives attended at a house in Bayswater to execute a search warrant. On arriving at the house they observed the applicant in the driveway of the house at the passenger side of a motor vehicle. The vehicle was being driven by a female. The applicant was apprehended and the vehicle searched. A shoulder bag was found in the centre console and inside that bag there was a smaller bag which contained nine snap-lock bags of amphetamines weighing approximately 5.05 grams in total. Amongst other items in the shoulder bag were a set of electronic scales, $10,000 in cash, a keyring container, drug cutting and preparation tools and a custom-made single shot 0.22 calibre pen gun.

4 On 12 June 2001, whilst detectives were processing the seized exhibits, a hidden compartment was found inside the internal bag. In that compartment were five small clip seal bags containing white powder, subsequently processed and found to be 4.47 grams of amphetamine. It appears that the two counts on the indictment reflect the fact of the two separate discoveries of amphetamines in the possession of the applicant.

5 The total weight of the amphetamines discovered from the search was 9.52 grams with a percentage ranging between 17 and 22 per cent. An application was made for forfeiture of the $10,000 but the application was deferred pending an application by counsel for the applicant to take instructions on the matter.

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Indictment 22 July 2002

6 In the early hours of 29 November 2001 the applicant was observed riding a Honda motorcycle in Mandurah. He was pursued by police, lost control of the motorcycle and fell off it. He was arrested after a long struggle with police and a plastic bag wrapped in black insulation tape was discovered near where the struggle occurred. It was later examined and found to contain a plastic press-sealed bag containing approximately 112 grams of methylamphetamine of approximately 5 per cent purity.

7 The motorcycle, a bag fixed to the petrol tank and a backpack carried by the applicant were then searched and there were found electric scales, a used syringe, a metal spoon and cash totalling $552.75. (The sum of $552.75 was later forfeited by order of the learned Judge, without objection).

Preliminary issues

8 On 18 November 2002 an order was made by Healy DCJ declaring the applicant to be a drug trafficker within the meaning of the Misuse of Drugs Act. This order appears to have been made in relation to the second of the indictments.

9 On 19 December 2002 the matter came before Healy DCJ again. Further facts were put before the Court on behalf of the prosecution and the learned Judge then invited counsel for the applicant to address the issue of forfeiture of the $10,000. A submission was made that there should be no forfeiture of the $10,000. Extensive evidence was given on the subject and on 20 December 2002 the learned Judge concluded that an order for forfeiture should be made pursuant to the provisions of s 8(1)(a) of the Criminal Property Confiscation Act 2000 (WA). That section provides that when a person is declared to be a drug trafficker under s 31A(1) of the Misuse of Drugs Act 1981, as a result of being convicted of a confiscation offence committed after the commencement of the Act, all property that the person owns or effectively controls at the time the declaration is made is confiscated.

10 The learned Judge concluded that the applicant had ownership of the $10,000 which was found in his possession, saying:

"In my view he had ownership of the $10,000 at the time it was seized, in that it was in his possession and that even if his evidence were to be accepted he was the legal owner of the funds. He said he contributed but also had an equitable

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interest in the funds contributed by Ms Campbell and therefore there will be an order for forfeiture of the money under the provisions of the legislation."

11 The learned trial Judge also held a trial of issues in relation to the subject matter of the indictments. The issues were whether the applicant had knowledge of the purity of the methylamphetamines and the position the applicant held in the hierarchy of drug dealers. The learned Judge concluded that the applicant was well aware of the quantity and purity of the methylamphetamine the subject of the counts on the two indictments and that the applicant was in possession of the drug for the purpose of dealing.

Sentence

12 When the learned Judge came to deal with the three counts the subject of the two indictments, his Honour first set out the facts and then stressed the fact that persons who deal in methylamphetamine must realise that when caught they will suffer significant penalties for the purpose of personal and general deterrence.

13 His Honour turned to matters personal to the applicant and recounted that he was a 28-year-old man with few educational qualifications and on a disability pension since a serious motor vehicle accident in February 1997. The learned Judge reviewed the applicant's criminal record, pointing out that there were over 60 convictions as an adult. Those convictions included burglary, assault occasioning bodily harm and numerous petty sessional matters. His Honour recounted the applicant's substance abuse problems and carefully considered the contents of the pre-sentence report. He then pointed out that the Court of Criminal Appeal had referred to the need to firm up sentences for offences of the type in question and indicated that in sentencing the applicant he would take account of his pleas of guilty, although a lesser discount would be given than normal because of the lateness of the pleas in relation to one indictment.

14 Before pronouncing sentence the learned Judge concluded that the applicant was a person who was in the distribution chain for the purpose of distributing drugs to people lower down the chain who would in turn further cut the drugs for sale on the street. His Honour declined to accept the innocent explanation given by the applicant for possession of the loaded pen gun and concluded that it was with the applicant for whatever protection it might give in the course of his drug dealing activities. The learned Judge also pointed out that personal factors did

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not carry great weight in the sentencing process for the offences committed by the applicant. His Honour took into account the totality principle and the pleas of guilty and then sentenced the applicant as follows.

Indictment of 2 April 2002

Count 1 - 2 years' imprisonment

Count 2 - 3 years' imprisonment

A direction was made that the sentence of 2 years be served concurrently with the sentence of 3 years.

Indictment of 22 July 2002

Imprisonment for 5 years

The sentence of 5 years was made cumulative upon the sentence of 3 years imposed on the first indictment.

15 Numerous matters the subject of s 32 of the Sentencing Act were then dealt with, including the offence of possession of an unlicensed firearm. For this offence, the applicant was sentenced to imprisonment for 1 year cumulative on the other sentences being served. The end result was that the applicant's sentence amounted to a 9 year sentence with eligibility for parole.

Grounds of appeal

16 The grounds of appeal of the applicant as amended at the hearing are as follows:

"The learned sentencing Judge erred in that

1. in respect of charge 25452/02


a. he made a finding of fact not open to him on the evidence, namely that the gun was carried with a view to possible use for protection (T219)

b. failed to deal with it as part of one transaction with the offending indictment 37/02.

c. took into account the prior convictions for possession of an unlicensed firearm in aggravation of sentence.


2. he imposed a sentence on the first indictment (137/02) which was manifestly excessive

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a. given the finding that the applicant was a user and street dealer.

b. when the punitive effect of the forfeiture order made is considered (T209)."

Ground 1

17 I have had the opportunity of reading in draft the reasons for judgment of Wallwork AJ. I agree with his Honour that the applicant has failed to make out the first ground of appeal and I respectfully adopt his Honour's reasons for that conclusion.

Ground 2

18 I respectfully agree with Wallwork AJ that there is no substance in ground 2(a) of the grounds of appeal but I respectfully disagree with his Honour conclusion in relation to ground 2(b). Whilst Wallwork AJ would be prepared to reduce the sentence of 3 years' imprisonment imposed for count 2 on the indictment of 2 April 2002 to a sentence of 2 years' imprisonment, I would not be prepared to do that. In my view the sentence of 3 years' imprisonment on the second count on the earlier indictment was entirely appropriate, notwithstanding the fact that there was an order for forfeiture of the sum of the $10,000 found in the possession of the applicant. The question is whether the total sentence imposed by the learned trial Judge reflected the overall criminality of the applicant's conduct.

19 In a somewhat different context, Ipp J in Jarvis v The Queen (1999) 20 WAR 201 at 207 pointed out that the overriding principle of sentencing is that the aggregate sentence imposed upon an offender should fairly and justly reflect the total criminality of the offender's conduct. This was also made clear in Rintel v The Queen (1991) 3 WAR 527 where Wallace J (at 532) pointed out that an order for forfeiture of property under the provisions of the Crimes (Confiscation of Profits) Act 1988 was an additional punishment to be imposed at a trial Judge's discretion but necessarily there must be some proportionality between the totality of the final income in the event of forfeiture and the gravity of the offence. In that case, the Court concluded that having regard to the offender's prior record and admitted course of dealing in drugs there was a need to impose an additional punishment by way of forfeiture to serve the purposes of deterrence, both personal and general, consistently with the aim of the legislation.

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20 In Langridge v The Queen (1996) 17 WAR 346, Murray J (at 378) pointed out that forfeiture is truly an additional punishment to any other sentencing measure, such as a fine or imprisonment. His Honour added:

"It would follow that where possible, as in this case, the interrelationship between such matters as forfeiture, a pecuniary penalty order, a fine, and imprisonment, should be, borne in mind as part of the exercise of determining the sentence properly to be imposed which overall reflects a proportionate response by the court to the gravity of the offence or offences committed by the particular offender before it."

21 In my opinion, in the present case, the order for forfeiture, when combined with the sentences of imprisonment imposed by the learned trial Judge, properly reflected a proportionate response by the learned Judge to the gravity of the offences committed by the applicant. He was a drug dealer and responsible for the commission of three serious indictable offences, together with a number of other offences which were dealt with pursuant to the provisions of s 32 of the Sentencing Act. The imposition of an overall sentence of 9 years' imprisonment, with the addition of a forfeiture order for the sum of $10,000, properly reflected in my view the gravity of the crimes he had committed. In this respect I would respectfully adopt what was said by Roberts-Smith J in Kirby v The Queen [2003] WASCA 164 at [141] - [144] as follows:

"141 … the objective circumstances of the case, including the weight and purity of the drug, the circumstances in which they were found and whether or not they were found with other items indicative of production, distribution or commercial dealing, for example, may relevantly bear upon the nature of the enterprise or activity in which the offender was involved and may also give an indication of the level of the offender within a criminal hierarchy (Vogel v The Queen [2002] WASCA 261).

142 In Bellissimo (1996) 84 A Crim R 465 at 467, Rowland J quoted the following passage from Koushappis v The Queen, unreported; CCA SCt of WA; Library No 950729; 6 December 1995:

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'In Doyle [(1994) 71 A Crim R 360) Seaman J discussed a number of sentences imposed for offences of possession of methylamphetamine for sale. That exercise was referred to when consideration was given to the range of sentences commonly imposed in such cases in the recent decision of this Court in Allen v R, unreported; CCA SCt of WA; Library No 950215; 27 April 1995. But in that case, as is appropriate in every case when such an exercise is attempted, Kennedy J, with whom Pidgeon and Ipp JJ agreed, at 6-7, made the cautionary observation that:

"Although such examples do provide some guidance on appropriate sentences, it must be appreciated that their facts vary widely and that they have to be applied with considerable care. Furthermore, whilst the sentence imposed will almost invariably reflect the quantity of the drug involved, the sentence is not to be determined simply by multiplying the amount of the drug by some period of time".'

143 In the same case at 471, Anderson J noted the change in 'ranking' amphetamine in the category of illicit drugs and explained the reasons for it:

'Amphetamine trafficking is now recognised by the court to be in a higher range of seriousness in the scale of drug trafficking offences. As a result of this, reference to earlier sentencing decisions is no longer a safe guide to the level of sentencing for current cases.

The major sentencing considerations for offences of trafficking in dangerous drugs of addiction such as amphetamines, cocaine and heroin are general and personal deterrence, the major objective being to stop people doing it. It is quite obvious to anyone concerned with criminal justice administration that trafficking

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in amphetamines is rife in this State and part of its tragedy is that very young people in the community are being exposed to it. This has caused wide-spread community concern. The sentences that have been imposed in the past do not seem to have worked as a deterrent.'

144 Those observations remain as pertinent now as when they were made. The vast majority of offenders who present in this Court, for example, for offences of armed robbery, aggravated burglary and similar offences, are said to have committed them either whilst under the influence of illicit drugs or for the purpose of enabling them to purchase such drugs, or both. The social and personal consequences of illicit drug use within the community continue to be a heavy burden on the community. Courts must impose sentences which will operate as a real deterrent to those who may be minded to involve themselves in the business of drug-dealing."

22 I would respectfully reiterate Roberts-Smith J's observations about the heavy burden cast on our community by reason of the consequences of illicit drug use. Severe deterrent sentences are inevitable for those who choose to be involved in the business of drug dealing. The present sentence was a severe one but, in my view, well within the range of sentences open to the learned trial Judge to impose. The forfeiture order was, in my view, properly a part of the sentence and although it undoubtedly made those sentences more severe, it was, in my opinion, appropriate for the learned trial Judge to make the order as an additional penalty.

23 I would only conclude that this was a case in which the judgment of the learned sentencing Judge was truly a discretionary one and the importance of that discretion committed to the sentencing Judge is of vital importance in the administration of our system of criminal justice: Lowndes v The Queen (1999) 195 CLR 665 at [15]. I see no basis upon which the exercise of the learned trial Judge's discretion in this case should be interfered with and I would therefore grant leave to appeal but dismiss the appeal.

24 MCKECHNIE J: I agree with Wallwork AJ in respect of ground 1 and ground 2(a). I disagree with his conclusion on ground 2(b). With

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respect to ground 2(b), I agree with Miller J that the question is whether the total sentence imposed reflected the overall criminality of the applicant's conduct.

25 There have been few cases on the relationship between the Criminal Property Confiscation Act 2000 and the Sentencing Act apart from Mada v The Queen [2003] WASCA 1 and Kirby v The Queen [2003] WASCA 164.

26 Sentencing cases involving the now repealed Crimes (Confiscation of Profits) Act 1988 must be treated with some caution.

27 Under the former regime, forfeiture was regarded as an additional punishment to be imposed at discretion. There needed to be some proportionality between the final outcome and the gravity of the offence: Rintel v The Queen (1991) 3 WAR 527 per Malcolm CJ at 532. This explains why in Bowman v The Queen (1995) 14 WAR 466 Parker J set out a series of factors (at 473) which might inform the exercise of the sentencing discretion.

28 The present regime under the Criminal Property Confiscation Act is different. If a convicted person fulfils the criteria then, upon application, the Court shall declare the person to be a drug trafficker under the Misuse of Drugs Act s 32A. There is no discretion to refuse to make an order. The consequence is that all property owned or effectively controlled by the drug trafficker is confiscated, together with all property that the person gave away before the declaration was made. The consequence is triggered, not by the exercise of judicial discretion, but by operation of law. The Misuse of Drugs Act and the Criminal Property Confiscation Act may be seen as a parliamentary response to drug trafficking. There are facets to the response. One facet is clearly the need for punishment. Another facet is the deterrent aspect facing a drug trafficker who stands to lose everything if he or she engages in serious offending. A further facet is acknowledgement of the difficulty in ascertaining which assets of a drug trafficker may have been acquired legitimately and which are the proceeds of drug dealings.

29 The Sentencing Act s 8(3) has been interpreted as inapplicable to the case of drug traffickers although the event which triggered the application to forfeit property under the effective control of the offender was the commission of the offence for which sentence is passed.

30 In Mada, Murray J regarded as rightly made the respondent's concession that regard should have been had to the confiscation of

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property following on the declaration of the drug trafficker. Mada was followed in Kirby per Roberts-Smith J.

31 Because of the change of legislative regime and the lack of the exercise of judicial discretion to make a confiscation order, I have doubts whether confiscation of a drug dealer's property may be regarded as a mitigating factor in most cases.

32 Notwithstanding my doubts, however, I am bound by the decisions in Mada and Kirby. On that basis, I agree with the reasoning of Miller J in the present case.

33 It follows that while I would grant leave to appeal against sentence I would nevertheless dismiss the appeal.

34 WALLWORK AJ: On 20 December 2002 the applicant, who was then 28 years of age and in receipt of a disability pension arising from injuries he had received in a motor vehicle accident, was sentenced in the District Court at Perth for a number of offences. He now applies for leave to appeal against the sentences imposed for three of those offences, being two charges of having possession of a quantity of methylamphetamine with intent to sell or supply it to another and a further charge of being in possession of an unlicensed single shot "pen" gun, at the time of the commission of the first two offences.

The sentences

35 The learned Judge sentenced the applicant to 3 years' imprisonment on the second count in the indictment, being having amphetamines in his possession with intent, and 2 years' imprisonment on the first count, both sentences to be served concurrently.

36 With respect to the possession of the pen gun, and noting that it was a repeat offence, the Judge sentenced the applicant to 1 years' imprisonment, that sentence to be served cumulatively on the effective total of 3 years' imprisonment for the two counts of possession of the drugs with intent to sell or supply, which had already been referred to above.

The grounds of the application for leave to appeal

37 Firstly, the applicant complains that the learned sentencing Judge sentenced him on the basis that the pen gun was carried with a view to its possible use for the applicant's protection in connection with drug dealing. His counsel had suggested to the learned Judge that neither the

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gun nor the sum of $10,000 in cash which the applicant was carrying at the time of the discovery of the drugs could lead to any inference other than that the applicant had been dealing at a street level.

38 Counsel for the prosecution had suggested that although the applicant had contended that he had acquired the gun at the time he had purchased the amphetamines because "it was a bit of a bargain", and that he had said he had intended to on-sell it to somebody he knew would be interested, that suggestion was of concern because the gun had been found loaded.

39 On the appeal it was submitted for the applicant that the above suggestion was as far as the Crown had gone in putting forward a view of the facts which the learned Judge might take which was different from the applicant's contention.

Facts of the offences

40 The facts were that the applicant was found in possession of the amphetamines at night. He had the loaded pen gun in his possession. The applicant had said that he did not know the gun was loaded, although he had three other live shells in a plastic bag.

41 The Judge rejected the applicant's contention that he had not known the gun was loaded. It was suggested on appeal that the learned Judge had not had sufficient evidence before him to enable him to reach the conclusion that the gun had been there for whatever protection it might give from "those who wish to take it (the drugs) away from you without paying you". It was submitted it had not been open to the Judge to have drawn that inference to the required standard of beyond a reasonable doubt.

42 On a trial of issues, the applicant had told the Judge that the person from whom he had bought the gun had wanted $150 for it. The seller had given the applicant some bullets in a gram bag. The gun had been like a pen and had been given to him "with two other textas". The three objects had been clipped together so that the gun had been camouflaged. The applicant had said he had taken the pen gun and the two textas back to the car and had showed it to his girlfriend.

43 The police officers' evidence had been that when the applicant had been apprehended as a passenger in the vehicle, a shoulder bag had been found in which there were amphetamines, electronic scales and the gun. The gun had been found with the sort of implements a drug trafficker might carry.

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44 On appeal, counsel for the applicant conceded that the pen gun had been with the other drug related objects. However, it was submitted that it had not been put to the applicant at the sentencing hearing that he had had it with him to protect himself. Further, there had been no evidence about the gun other than the factual circumstances of the finding of it.

45 A review of evidence given at the trial of issues reveals that the applicant told the learned Judge he had gone to a person to purchase a couple of grams of amphetamines. That person had tried to sell him "an eight ball" for $1000. The person had a 0.22 calibre pen gun. He "was trying to ask me if I wanted to buy that and I said I wouldn't be interested but the bloke I was buying the car off, he was pretty interested. He was a gun fanatic and he had showed me hand guns the week before, two weeks before, when I seen him, so I made a phone call …".

46 The applicant told the Judge that the person from whom he was buying a car had handguns. The applicant had told the person about the pen gun and that person had said he wouldn't mind having a look at it. The applicant said he would have tried to get $500 for the pen gun and maybe pay $9500 for the car. The applicant said that was why he had bought the pen gun and some amphetamines for $1000.

47 On the hearing of this application, counsel submitted that the applicant had thought he could on-sell the gun. He had spoken to the proposed purchaser from whom he was going to buy a car. He had thought he could do a deal. However, the learned Judge had specifically rejected the applicant's explanation in that regard.

48 The learned Judge said:

"The evidence as to why he had purchased the pen gun was bizarre. If you were buying it for a gun collector it seems to me unusual that you would need to be given three bullets separately in a gram bag. I don't accept your evidence that you didn't know it was loaded. You had previous experience with firearms, having previous convictions relating to firearms, and I don't accept your evidence that you were going to use it as part of the purchase price of the car you said you were going to buy. The adverse finding as to your credibility about how you came into possession of the pen gun and what you were going to do with it, is open to me on what I heard."

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49 The Judge's relevant finding was that the police had executed a search warrant in Bayswater in relation to another matter:

"You were at the passenger side of the car parked in the driveway and the vehicle was searched and the shoulder bag was located in the centre console. That bag contained a small or cosmetic type bag containing nine snap-lock bags of methylamphetamine weighing - initially thought to weigh about 5.05 grams. The shoulder bag also contained a set of electronic scales, $10,000 in cash, a keyring containing drug-cutting and preparation tools, and a custom-made single shot 0.22 calibre loaded pen gun. The pocket knife, when eventually tested, showed traces of cannabis and methylamphetamine."

50 When the shoulder bag was searched, further drugs were discovered in five clip-sealed bags. The total methylamphetamine in the applicant's possession at the time had been 7.84 grams, of purity varying between 7 and 22 per cent.

51 The Judge found that the applicant was a street level drug dealer with all the paraphernalia required to deal in drugs. He was in possession of a 0.22 single shot calibre loaded pen gun.

52 On appeal, counsel for the applicant contended that the applicant had not been cross-examined about having the pen gun for whatever protection it might give to him from those who wished to take the drugs from him; that the Judge had simply drawn "too long a bow" to conclude that that was the purpose for which the applicant had the gun.

53 The issue was whether, in all the circumstances, the learned Judge was entitled to draw the inference that the gun had been there for protection. It was suggested that this had never been part of the Crown case.

54 In my opinion, given that the learned Judge had rejected the applicant's explanation for having the pen gun in his possession for the purposes of on-selling it, and having in mind that it was in a bag with "drug dealing paraphernalia", his Honour was entitled to draw a conclusion beyond a reasonable doubt that the gun was there in case it was needed for the applicant's protection.

55 The applicant had offered no other explanation for the presence of the gun than the one which the Judge rejected after having heard the applicant's evidence and evidence of the surrounding circumstances. In

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all the circumstances, in my view, the Judge was entitled to draw the inference he did.

Second contention

56 It was then submitted for the applicant that in any event, the learned Judge had not been entitled to impose a year's cumulative imprisonment with respect to the gun in addition to the effective 3 year term of imprisonment for the possession of the drugs in the applicant's possession at the time the gun was found in his possession. It was also contended that the learned Judge had taken into account prior convictions for the possession of unlicensed firearms in aggravation of the sentence imposed for the gun offence.

57 The maximum sentence for the offence concerning the gun was 18 months' imprisonment. The applicant had two prior offences for being in possession of an unlicensed firearm, one on 1 April 1993 and a second on 30 June 1998.

58 It was submitted that the learned Judge had taken the prior offences into account in aggravation of the penalty for possession of the unlicensed firearm when he had said: "… because that's a repeat offence and the Courts have said that where a person has prior convictions for similar types of offences, they can be used, not to punish you more significantly for the particular offence, but to show that it is not isolated or an aberration. It is part of a pattern."

59 In the passage just quoted, the learned Judge had been quite careful to say that the earlier offences could be used to show that the offence was "not isolated or an aberration. It is part of a pattern". He had prefaced these remarks by saying that the previous offences could not be used "to punish you more significantly for the particular offence".

60 In my opinion the applicant's submissions concerning that effect of the previous convictions should not be accepted. It is perfectly proper for a Judge to point out that in the light of previous convictions, it could not be said that the offence is isolated or an aberration.

61 Because the applicant's explanation had been rejected by the Judge who found that the gun had been there for the applicant's protection in certain circumstances, in my view, it could not be said that a sentence of 12 months' imprisonment for that offence was excessive.

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Whether the sentence should be cumulative

62 It was submitted that the gun offence had arisen from substantially the same acts as the offences of having in possession the amphetamines with intent to sell or supply. It had been part of a closely related series of occurrences. There was also the question of totality. It was submitted that the sentence for the unlicensed firearm should have been made concurrent with the two sentences for the possession of the drugs with intent. It was noted that the sentences for those two drug offences had been made concurrent but it was submitted that the firearm sentence should also have been made concurrent as it had been part of one course of criminal conduct.

63 It was conceded that the weight of drugs on the second count had been larger than that on the first count. However, it was submitted that because of the effective 3 year sentence for the total of 74.4 grams, in all the circumstances the learned Judge must have taken the gun into account in aggravation of those offences.

64 It is clear that a Judge should have said he or she was taking the gun into account in the sentences on counts 1 or 2 in the indictment if the Judge had intended to do so. It is also clear that the Judge in this case made no mention of this aspect when discussing the sentences for the two counts of possession with intent. He then imposed the sentence for the gun as a separate and distinct matter.

65 It was submitted that as the gun sentence had been made cumulative, there was a resultant excessive sentence. It was conceded that the question of whether sentences are partly cumulative or concurrent is a discretionary process. However, it was submitted that the gun had been part of the same set of criminality and that if his Honour had been correct in making the inference that the gun was carried for drug dealing, then concurrency of the three sentences would have been appropriate.

66 In R v Hammoud (2000) 118 A Crim R 66, where the facts were that on executing a search warrant police officers had located a small quantity of cocaine and a loaded 0.45 calibre pistol under the respondent's mattress, it was held by Dowd J, with whom Mason P and Simpson J agreed, that:

"The minimum sentence that might have been imposed for the possession of an unlicensed weapon, is a period of 12 months. This is a distinct offence for which there is no

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discount available for assistance, but it does reflect the plea of guilty that was entered."

67 In that case there had been a maximum penalty available for the gun offence of 10 years' imprisonment.

68 In my view, the seriousness of the matter is similar in this case. It could not be said that his Honour erred in imposing a cumulative sentence for the possession of the unlicensed firearm if it is the fact that the effective 3 year sentence for the two offences of possession with intent to sell is correct, having in mind the question of the forfeiture of the $10,000 which was found on the applicant.

The effective 3 year sentence for the drug offences

69 It was contended for the Crown that the sentences were appropriate for the intent to distribute methylamphetamine with the object of profit, taking into account the harm which such activity causes in the community - Kirby v The Queen [2003] WASCA 164 at [138] - [140] per Roberts-Smith J.

70 It was conceded for the applicant that there is no particular tariff for these type of drug offences. However, it was submitted that the applicant's psychiatric and psychological background stemming from his being involved in a shooting accident when he was a child, was relevant. It was submitted that he had been cooperative and remorseful. There was also the matter of previous injuries which he had received in a motor vehicle accident.

71 It was submitted that an effective 3 year sentence for the two counts of possession in the first indictment was too much when it was held that the applicant had been a dealer supporting his own habit and there had only been 7.84 grams of the drug involved in the two offences.

72 The applicant had a significant psychiatric condition which had contributed to his criminal offending. He had also been punished by having the sum of $10,000 forfeited. The learned Judge did not suggest that that forfeiture of the $10,000 had been taken into account in the sentence.

73 When discussing the $10,000 the learned Judge said:

"As to whether or not all or any of the $10,000 was derived from drug money and giving you the benefit of the evidence

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from Ms Campbell and your father as to how some of the money was raised, it still appears you had additional money over and above what you are able to account for as being given to you by your father."

74 His Honour said:

"So it seems to me that there was some likelihood of there being money which was obtained from deals prior to May because of the excessive money over and above the $10,000 which went to buy the methylamphetamine on the night."

75 It was submitted for the applicant that there had been no evidence that part of the $10,000 had come from drug dealing. His Honour thought that some of it could well have done, but that was as far as he had gone. There was also a sum of $1000 which his father had lent him plus some money from his girlfriend. It was submitted that the $10,000 was not all his money. It should not all have been forfeited. Some of it had belonged to the father and some to the girlfriend.

76 It was further submitted that forfeiting $10,000 from somebody had a punitive element to it. Regard should also have been had to the applicant's impecunious situation at the time.

77 It was submitted that there had been no determination as to the source of the $10,000. It was conceded that the applicant had effective control of it. Once that position was appreciated, then to remove it from him had a punitive effect. Reliance was placed on the decisions in Kirby v The Queen (supra) and Mada v The Queen [2003] WASCA 1.

78 I note that in Kirby at par 155, Roberts-Smith J said:

"In Bellissimo a sentence of 5 years 10 months for possession of 20.8 grams of methylamphetamine of 6 per cent purity with intent was upheld on appeal … those cases and others to which reference was made … to my mind serve only to illustrate the point that in the end the appropriateness of the sentence can only be evaluated against the nature and circumstances of the particular offences and those of the individual offender. This really answers the applicant's contention that the sentence was 'impermissibly disparate from recent sentences in like or similar cases."

79 In discussing the effect of confiscation of property in Kirby, Roberts-Smith J referred to the decision in Mada where all the

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applicant's assets had been confiscated (despite the fact that they were unconnected to the proceeds of the commission of any offence) because of a declaration made under s 32A of the Misuse of Drugs Act. The effect of such a declaration was that all the property owned or controlled by the applicant, or which he had previously given away, was confiscated and forfeited to the Crown.

80 In Mada, Murray J had said that the reality of what had occurred in that case was that in the loss of his assets, the applicant had suffered a significant punishment additional to that imposed by the sentencing Court. The Court had been told that the net value of the assets amounted to nearly $55,000, comprised of the offender's share of the equity in his former matrimonial home (jointly owned with his wife), a motor vehicle in his name, a motor vehicle in his wife's name, cash, furniture, a computer and money in the bank.

81 Murray J said that the view to which he had come - that this was a matter of significant mitigation of punishment - was consistent with previous decisions of the Court in Rintel v The Queen (1991) 3 WAR 527, 532; Bowman v The Queen (1995) 14 WAR 466 and Langridge v The Queen (1996) 17 WAR 346, 378.

82 Although each of the abovementioned decisions concerned a different Legislative scheme, Roberts-Smith J agreed with Murray J's analysis of the statutory position. In the course of his remarks, Roberts-Smith J said, "The only purpose for which such information (being information concerning the value of confiscated assets) could possibly have been put before the Court would have been to decrease the extent to which the applicant was to be punished by any sentence imposed by his Honour". (My words in brackets). His Honour said, "It must necessarily have been a mitigating factor as defined in s 8(1) of the Sentencing Act".

83 At [177] his Honour said:

"Although his Honour made no express reference specifically isolating the loss the applicant would suffer as a result of the s 32A declaration, it is not to be assumed that he did not take it into account. Counsel for the applicant had raised it, albeit in broad terms, and the fact that his Honour was mindful of it is apparent from his reference to it in the context of the credit to be given for the applicant's pleas of guilty. His Honour made it clear that he had regard as mitigation not only to the factors he had expressly mentioned, but to '… all information

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before the Court.' I am not persuaded that his Honour did fail to take this consideration into account, to the extent the limited information before him enabled him to do so. This ground must fail."

84 His Honour made a declaration that the applicant was a drug trafficker. He also referred to the physical disabilities of the applicant and to the fact that his partner was still standing by him and had given birth to a son earlier in the year. Further, that the applicant had "very considerable debts, owing money on your credit cards and very significant moneys in outstanding fines".

85 His Honour said that in fixing the terms of imprisonment he had been mindful of the applicant's pleas of guilty to the May offences and the November offences and thus he would be entitled to a discount. His Honour said that in these types of cases, personal factors did not carry much weight and that deterrence is a very important matter when considering sentence. His Honour said:

"I bear in mind the totality of sentence and your pleas of guilty in relation to the sentences that I impose … I don't see any reason why the sentences in relation to the May offences and the November offence should not be served cumulatively, particularly since the second offence was committed whilst you were on bail."

86 His Honour imposed sentences for all the charges to which the applicant had pleaded guilty, including $600 fines for two "failing to stop" offences against the Traffic Act.

87 When ordering that the $10,000 be forfeited, the learned Judge rejected the proposition that the applicant was not the owner of the money which was seized by the police in May 2001. His Honour said:

"The money was his when it was seized by the police and remains his, albeit not in his possession, until the Court makes an order that he has the legal and equitable interest in that money. The second ground was that all of the money was not his. Some of it came from Ms Campbell. However, the money was to be used, according to their evidence, for a joint enterprise of buying an old car, doing it up and selling it for a profit. In my view he had ownership of the $10,000 at the time it was seized, in that it was in his possession and that even if his evidence were to be accepted, he was the legal

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owner of the funds. He said he contributed but also had an equitable interest in the funds contributed by Ms Campbell and therefore there will be an order for forfeiture of the money out of the provisions of the legislation."

88 In my opinion his Honour clearly did not take into account in mitigation of sentence, the added penalty of the forfeiture of the $10,000. I would therefore reduce the 3 year sentence on the second offence to one of 2 years' imprisonment to recognise the forfeiture of the $10,000, and would allow the appeal to that extent.