Karakuyu v The State of Western Australia

[2012] WASCA 75

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   KARAKUYU -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 75

CORAM:   McLURE P

MAZZA JA

HEARD:   9 MARCH 2012

DELIVERED          :   30 MARCH 2012

FILE NO/S:   CACR 165 of 2011

BETWEEN:   HUSEYIN KARAKUYU

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :O'NEAL DCJ

File No  :IND 1318 of 2010

Catchwords:

Criminal law - Application for leave to appeal against sentences - Possession of prohibited drug - Possession of prohibited drug with intent to sell or supply - Whether sentence manifestly excessive - Whether parity principle offended - Whether total effective sentence offends both limbs of the totality principle

Legislation:

Criminal Appeals Act 2004 (WA), s 27(1), s 27(2), s 27(3)
Criminal Code (WA), s 19(1)
Firearms Act 1973 (WA), s 19(1), s 19(1)(ac), s 19(1)(c)
Misuse of Drugs Act 1981 (WA), s 5(1)(d), s 5(1)(d)(i), s 6(1)(a), s 6(2),
Sentencing Act 1995 (WA), s 32

Result:

Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant:     Mr T Percy QC

Respondent:     No appearance

Solicitors:

Appellant:     Henry Sklarz

Respondent:     Director of Public Prosecutions (WA)

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

Bosworth v The State of Western Australia [2007] WASCA 144

Direen v The State of Western Australia [2010] WASCA 211

Lynch v The State of Western Australia [2011] WASCA 243

MGM v The State of Western Australia [2012] WASCA 24

Roffey v The State of Western Australia [2007] WASCA 246

The State of Western Australia v Marchese [2006] WASCA 153

Wilson v The State of Western Australia [2010] WASCA 82

1. McLURE P:  I agree with Mazza JA.

2. MAZZA JA:  This is an application for leave to appeal against sentences imposed by O'Neal DCJ.

3. The appellant was convicted, after trial, of two counts of possession of a prohibited drug with intent to sell or supply it to another and one count of possession of a prohibited drug, contrary to s 6(1)(a) and s 6(2) of the Misuse of Drugs Act 1981 (WA). Later, he pleaded guilty to eight offences contained in a notice pursuant to s 32 of the Sentencing Act 1995 (WA). One of those offences was a charge of possession of an unlicensed handgun, contrary to s 19(1)(c) of the Firearms Act 1973 (WA).

4. The appellant received a total effective sentence of 6 years and 3 months' imprisonment with eligibility for parole.  The details of the individual sentences imposed by his Honour are as follows:

Indictable offences

Count	Offence	Maximum Statutory Penalty	Sentence / Final outcome	Concurrency/Accumulation
1	A person who with intent to sell or supply it to another, has in his possession a prohibited drug: Misuse of Drugs Act (WA) s 6(1)(a).	25 years' imprisonment and/or $100,000 fine	2 years and 6 months' imprisonment	Cumulative
2	A person who with intent to sell or supply it to another, has in his possession a prohibited drug: Misuse of Drugs Act (WA) s 6(1)(a).	25 years' imprisonment and/or $100,000 fine	3 years and 6 months' imprisonment	Cumulative
3	A person who has in his possession or uses a prohibited drug: Misuse of Drugs Act (WA) s 6(2).	2 years' imprisonment and/or $2,000 fine	3 months' imprisonment	Concurrent

Offences in the s 32 notice

Count	Offence	Maximum Statutory Penalty	Sentence / Final outcome	Concurrency/Accumulation
1	Possess a firearm with circumstances of aggravation: s 19(1ac) Firearms Act 1973 (WA)	7 years' imprisonment	3 months	Cumulative
2	Possess a Prohibited Drug (Cannabis): s 6(2) Misuse of Drugs Act 1981 (WA)	2 years' imprisonment and/or $2,000 fine	$50

3	Possess a Smoking Utensil: s 5(1)(d)(i) Misuse of Drugs Act 1981 (WA)	3 years' imprisonment and/or $3,000 fine	$200
4	Possess a Smoking Utensil: s 5(1)(d)(i) Misuse of Drugs Act 1981 (WA)	3 years' imprisonment and/or $3,000 fine	$200
5	Possess a Prohibited Drug (Methamphetamine): s 6(2) Misuse of Drugs Act 1981 (WA)	2 years' imprisonment and/or $2,000 fine	$100
6	Possess Unlicensed Ammunition: S 19(1) Criminal Code (WA)	5 years' imprisonment	1 month imprisonment	Concurrent
7	Owner or lessee permits use of premises: s 5(1)(b) Misuse of Drugs Act 1981 (WA)	3 years' imprisonment and/or $3,000 fine	2 months' imprisonment	Concurrent
8	Possess a Smoking Utensil: s 5(1)(d)(i) Misuse of Drugs Act 1981 (WA)	3 years' imprisonment and/or $3,000 fine	$200

1. The appellant seeks leave to appeal on four grounds.  Those grounds, in effect, make the following complaints:

   1.The sentence imposed on count 2 of the indictment was manifestly excessive:  ground 1.

   2.The sentence imposed on count 1 on the indictment offended the parity principle, having regard to the sentence imposed on the co‑offender, Bram John Evans:  ground 4.

   3.The total effective sentence offends both limbs of the totality principle:  grounds 2 and 3.

2. Leave to appeal is required in respect of each proposed ground. Leave cannot be granted unless the ground has reasonable prospects of succeeding. If no ground has reasonable prospects of succeeding, the appeal must be dismissed: s 27(1), (2) and (3) of the Criminal Appeals Act 2004 (WA).

3. The general principles applicable to an appeal against sentence are well known and do not require repetition here.  They are set out in Wilson v The State of Western Australia [2010] WASCA 82 [2].

Facts of the offending

1. There is no challenge to the facts of the appellant's offending. 

2. On 7 January 2010, the police executed a search warrant at the appellant's house in Dianella.  There, they discovered:

   (a)An unlicensed .22 calibre handgun with its serial number erased. The appellant asserted that the handgun could not be fired. Subsequent tests proved that assertion to be incorrect: count 1 on the s 32 notice.

   (b)28 rounds of unlicensed .22 calibre ammunition. This ammunition did not fit the handgun: count 6 on the s 32 notice.

   (c)Two cannabis grinders. Inside one was a small quantity of cannabis. The other had traces of cannabis: counts 2 and 3 of the s 32 notice.

   (d)Two implements used to smoke methylamphetamine. The smoking implements had detectible traces of methylamphetamine: count 4 on the s 32 notice.

   (e)Approximately 0.01 g of methylamphetamine: count 5 on the s 32 notice.

3. The appellant admitted to police that he allowed his friends to use the premises to consume various prohibited drugs: count 7 on the s 32 notice.

4. On 23 January 2010, the police had the appellant and Mr Evans under electronic and physical surveillance.  They stopped a car in which the two men were travelling and discovered 21.2 g of methylamphetamine with a 56% purity under the console in the area where the appellant had been sitting:  count 1 on the indictment.

5. On 5 May 2010, while the appellant was on bail for the offences committed in January of that year, the police executed a search warrant at the house he was then occupying in Balcatta.  The house had an elaborate surveillance system.  Police discovered 27.6 g of 48% pure methylamphetamine and some of the typical indicia of drug dealing, including a 'tick list':  count 2 on the indictment.

6. Somehow, the appellant was once again released on bail. On 19 August 2010, police found at his house 62 dexamphetamine tablets which had been prescribed to a Mr Roberts. The appellant was charged with possession of the tablets with intent to sell or supply, but the jury acquitted him of this charge and convicted him only of simple possession of the drug: count 3 on the indictment. The police also discovered a pipe used to smoke prohibited drugs: count 8 on the s 32 notice.

7. His Honour rejected the appellant's submission that he was a heavy user of methylamphetamine, instead finding that he was an occasional user who had no 'significant issue with the drug':  ts 1342.  His Honour concluded that the appellant's 'substantial and primary involvement with methylamphetamine was as a mid‑level commercial trafficker' and that, amongst others, one of the people the appellant supplied was Mr Evans.  His Honour described Mr Evans as 'subordinate [to the appellant] … in the chain of trafficking':  ts 1343.

8. His Honour said, having regard to the evidence at trial, that the appellant was entirely without remorse or contrition and that he was manipulative and prepared to use violence to get what he wanted:  ts 1340.

The appellant's personal circumstances

1. At the time the appellant was sentenced, he was 29 years of age.  He was born in Kurdistan.  He came to Australia with other family members when he was 14 or 15 to join his father.  His family continues to be supportive of him.  He left school at 15 and has as history of employment in family businesses.  He has a criminal record made up mostly of traffic related matters.  He had no prior drug offences.

The sentence imposed on Mr Evans

1. His Honour had before him material relating to the sentencing of Mr Evans.  He, like the appellant, was charged with possession of methylamphetamine with intent to sell or supply it to another, in connection with the drugs found by police on 23 January 2010.  He pleaded guilty at a late stage and was sentenced by Sweeney DCJ on 13 May 2011 for this and other serious offences, to a total effective term of 7 years' imprisonment.  For the drug offence which he committed with the appellant, he received 2 years' imprisonment.  The length of that sentence was not apparently reduced for totality purposes.

2. O'Neal DCJ expressly considered the parity principle when sentencing the appellant.  He said:

   The sentence imposed on your co‑offender, Bram Evans, is relevant to the punishment that you should receive, given the fact that you both had a role in the same offending.  It's important that the punishment imposed on you not be disproportionate so as to leave either you or Mr Evans with a justified sense of injustice:  ts 1342 ‑ 1343.

3. His Honour recognised that Evans had a 'much, much worse' criminal record when compared with the appellant.  As against this, his Honour noted that Evans had pleaded guilty, albeit late, and his subordinate position to the appellant in the drug trafficking hierarchy:  ts 1343.

Analysis of the grounds of appeal

1. I will deal with the issues raised by the grounds of appeal in the order I listed them earlier.

Was the sentence on count 2 on the indictment manifestly excessive?

1. The appellant submitted that, by comparison with other cases involving comparative amounts of methylamphetamine and the appellant's antecedents, 3 years and 6 months' imprisonment was manifestly excessive.

2. A sentence is not manifestly excessive unless the appellant demonstrates that it is, in all the circumstances of the case, outside the range of a sound sentencing discretion.  To judge this, it is necessary to examine the sentence in question having regard to:

   (a)the maximum statutory statutory penalty for the offence;

   (b)the seriousness of the circumstances of the offending;

   (c)the standards of sentencing customarily observed; and

   (d)the personal circumstances of the offender.

3. I have already referred to the maximum penalty for the offence of possession of methylamphetamine with intent to sell or supply it to another.

4. While the quantity and purity of the drug are not the chief factors to be taken into account, they are nevertheless important.  Here the police discovered a substantial quantity of the drug at a purity considerably higher than that ordinarily sold on the street.  The circumstances indicate, as his Honour found, that the appellant was a mid‑level dealer for profit.  The appellant was, at the time, on bail for the offences that he had committed earlier.  The circumstances of the appellant's offending were unquestionably serious.

5. The appellant's assertion that the sentence imposed on him was outside the range of sentences customarily observed is made by reference, without any analysis, to the cases of Bosworth v The State of Western Australia [2007] WASCA 144; The State of Western Australia v Marchese [2006] WASCA 153; and Direen v The State of Western Australia [2010] WASCA 211.

6. Marchese and Direen are plainly distinguishable from the present case.  Marchese was a State appeal against a suspended imprisonment order decided prior to the abolition of the double jeopardy principle.  While the offender in that case was found in possession of 27.97 g of methylamphetamine, an amount very similar to that which the appellant possessed, it was of a lesser purity (approximately 18%).  Of crucial importance to the outcome of that case was that the State's appeal was heard 8 months after the imposition of the sentence.  Both Steytler P and Wheeler JA considered that the sentence imposed upon the offender was inadequate, but declined to intervene, having regard to the delay and the progress made by the offender towards his rehabilitation.

7. The ground of appeal in Direen was not manifest excess, but rather an alleged breach of the parity principle.

8. As for Bosworth, this court recently said in Lynch v The State of Western Australia [2011] WASCA 243 [11], that the case is not a matrix for the determination of the appropriate length of the sentence under review.

9. Lynch is a closer comparator to the present case.  In Lynch, the appellant and a co‑offender were in a vehicle which was stopped by the police.  In the co‑offender's wallet was a clipseal bag containing 27.9 g of 34% pure methylamphetamine.  The co‑offender was seen to throw under the vehicle two other bags containing 3.38 g of 38% pure methylamphetamine and 3.48 g of 34% pure methylamphetamine.  The offender pleaded guilty on the fast‑track system and had no prior drug offences.  The court undertook a review of the relevant case law.  It described the sentence of 3 years and 6 months' imprisonment imposed on the offender as being at the high end of the customary range, but not outside it and not manifestly excessive.  The quantity of methylamphetamine possessed by the appellant in the present case is somewhat less than the quantity involved in Lynch.  However, the drugs were of a higher purity.  Moreover, the appellant does not have the advantage of a fast‑track plea of guilty and committed the offence on bail.

10. The appellant has not made out the submission that the sentence on count 2 was outside the range of sentences customarily observed.

11. The appellant is a mature man without the advantage of youth.  Although his antecedents are reasonable, they do not afford significant mitigation, having regard to the primary sentencing objective in cases such as this of general and personal deterrence.

12. In all the circumstances, the sentence imposed upon the appellant for count 2 on the indictment was not manifestly excessive.  It reflected a sound exercise of sentencing discretion.

Does the sentence on count 1 offend the parity principle?

1. The terms and operation of the totality principle were recently examined by this court in MGM v The State of Western Australia [2012] WASCA 24:

   The parity principle is founded on the norm of equal justice:  Green & Quinn v The Queen [2011] HCA 49 [28]. Its terms, in the ordinary case, are settled. It was expressed in this way by Gibbs CJ (Wilson J agreeing) in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606:

   It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account (609). 

   See also I (a child) v The State of Western Australia [2006] WASCA 9 [65] - [71] (Steytler P).

   The concept of equal justice does not equal mathematical precision.  What is required before the court can intervene is that any disparity (or lack of disparity) gives rise to an objectively justifiable sense of grievance or an appearance that justice has not been done.  The fact that an appellant feels a sense of grievance is not determinative:  Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson & Gaudron JJ), 338 (Kirby J).

   Ultimately, what is required is that there is a proper relationship between the sentences imposed on co-offenders.  This requires a comparison of the sentence imposed on each offender, and an evaluation of their involvement in the commission of the offence and their antecedents:  D A Thomas, Principles of Sentencing (2nd ed) 64 - 65; and Jardim v The State of Western Australia [12] - [13] (McLure P, Pullin JA agreeing), [22] (Hall J) (41] ‑ [43].

2. The appellant submits that the sentence of 2 years and 6 months' imprisonment imposed on him when compared to the 2 years imposed on Mr Evans gives rise of a justifiable sense of grievance and should be reduced.  Senior counsel gave particular emphasis to Mr Evans' worse criminal history.

3. This submission cannot be accepted.  There are obvious differences between the circumstances of the appellant and Mr Evans which explain and justify the different sentences.  First, Mr Evans pleaded guilty, albeit late, while the appellant did not.  Second, the appellant was higher in the drug hierarchy than Mr Evans. 

4. His Honour expressly referred to the parity principle.  He was aware of the fact that Evans had a worse record than the appellant.  As against that, O'Neal DCJ weighed the other different circumstances.  He concluded that the appellant should serve a longer sentence for the offence than Mr Evans.  His Honour did not err in that conclusion.  The sentence imposed on the appellant does not give rise to an objectively justifiable sense of grievance on the part of the appellant.

Did the total effective sentence breach the totality principle?

1. The totality principle was succinctly and accurately described in Roffey v The State of Western Australia [2007] WASCA 246:

   The appellant relies on the totality principle which comprises two limbs.  The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally:  Woods v The Queen (1994) 14 WAR 341.

   The second limb is that the court should not impose a 'crushing' sentence.  The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release:  Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).

   The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences:  R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260) [24] ‑ [26].

2. The appellant's written submissions allege that the total effective sentence breached both limbs of the totality principle.  In his oral submissions, senior counsel, while not abandoning the allegation that the sentence was crushing, concentrated his submissions on an alleged breach of the first limb of the totality principle.

3. Senior counsel submitted that although his Honour referred to the totality principle in his sentencing reasons, he did not apply it. It was submitted that his Honour should have ordered the sentence on count 2 on the indictment to be served partly concurrently with the sentence on count 1, and the sentence for possessing the unlicensed firearm in the s 32 notice should have been made wholly concurrent.

1. The appellant's overall criminality was of a high order.  His Honour's findings in this regard are unchallenged.  The appellant was a mid‑level drug dealer motivated by profit.  He dealt with substantial quantities of drugs and the purity of the methylamphetamine he was distributing was high, indicating that he was close to the source of the drug.  The offending in each of counts 1 and 2 was aggravated by the fact that it occurred on bail.  It is clear from the persistent nature of his offending, which occurred over a period of months, that the appellant ran the risk of apprehension in order to make money from illicit drugs.  His Honour found that the appellant was prepared to manipulate others and use violence to get his way.  Further, the appellant was not remorseful for what he had done.

2. The firearms offence was serious.  The weapon was capable of use and the appellant was not licensed to possess it.  The serial number on it had been defaced so its provenance could not be easily traced.  Its possession was plainly intended for self‑protection or as a threat to others.  It is the experience of the courts that firearms are a common tool of the trade for drug dealers.  It is not unknown for such weapons to be used when disputes with respect to drugs arise.  There is a clear need to deter those involved in the drug trade from obtaining and possessing firearms. 

3. In the present case, as the firearms offence was committed separately to the offences in counts 1 and 2 on the indictment, I see no error in the sentence imposed for it being ordered to be served cumulatively.  As to the offences in counts 1 and 2 on the indictment, they were separate and warranted accumulation.  Having regard to the serious and persistent nature of the appellant's offending, the need to provide general and personal deterrence and all of the circumstances of the case, the total effective sentence of 6 years and 3 months' imprisonment was an appropriate reflection of the appellant's overall criminality.

4. Having regard to his antecedents and the nature of his offending, there is no arguable basis that the total effective sentence is crushing in the accepted sense.

5. For these reasons, the total effective sentence imposed upon the appellant does not breach either limb of the totality principle.

Conclusion

1. None of the proposed grounds of appeal have reasonable prospects of succeeding.  Leave to appeal is refused in respect of them all.  Accordingly, the appeal must be dismissed.

Orders

1.Leave to appeal is refused on all grounds.

2.The appeal is dismissed.