Kezkiropoulos v The Queen
[2002] WASCA 352
•16 DECEMBER 2002
KEZKIROPOULOS -v- THE QUEEN [2002] WASCA 352
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 352 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:58/2002 | 3 DECEMBER 2002 | |
| Coram: | MALCOLM CJ STEYTLER J OLSSON AUJ | 16/12/02 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave dismissed | ||
| B | |||
| PDF Version |
| Parties: | PETER KEZKIROPOULOS THE QUEEN |
Catchwords: | Criminal law Sentence Drug courier Guilty plea shortly before trial Inferences as to accused's knowledge given the circumstances of the offence and his possession of large sum of money Relevance of good antecedents in this type of drug offence Sentencing discount for guilty plea Extent to which, realistically, guilty plea indicative of remorse as contrasted with mere recognition of inevitability of conviction |
Legislation: | Misuse of Drugs Act 1981 (WA), s 6(1), s 34(1)(a) |
Case References: | Chick v The Queen [2000] WASCA 231 Festus v The Queen [2002] WASCA 25 Lowndes v The Queen (1999) 195 CLR 665 Marker v The Queen [2002] WASCA 282 Miller v The Queen [1999] WASCA 66 R v Votano [2000] WASCA 144 Radebe v The Queen [2001] WASCA 254 Siganto v The Queen (1998) 194 CLR 656 Wong v The Queen (2001) 185 ALR 233; (2001) HCA 64 Cameron v The Queen (2002) 187 ALR 65 Lim v The Queen [1999] WASCA 296 Lowndes v The Queen (1999) 195 CLR 665 Quach v The Queen [1999] WASCA 210 R v Atholwood (1999) 109 A Crim R 465 R v Bellissimo (1996) 84 A Crim R 465 R v Darwell (1997) 94 A Crim R 35 R v Olbrich (1999) 166 ALR 330 R v Peterson [1984] WAR 329 Worth v The Queen [2001] WASCA 303 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : KEZKIROPOULOS -v- THE QUEEN [2002] WASCA 352 CORAM : MALCOLM CJ
- STEYTLER J
OLSSON AUJ
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentence - Drug courier - Guilty plea shortly before trial - Inferences as to accused's knowledge given the circumstances of the offence and his possession of large sum of money - Relevance of good antecedents in this type of drug offence - Sentencing discount for guilty plea - Extent to which, realistically, guilty plea indicative of remorse as contrasted with mere recognition of inevitability of conviction
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1), s 34(1)(a)
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Result:
Application for leave dismissed
Category: B
Representation:
Counsel:
Applicant : Mr A S Derrick
Respondent : Mr D Dempster
Solicitors:
Applicant : Monaghan & Associates
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Chick v The Queen [2000] WASCA 231
Festus v The Queen [2002] WASCA 25
Lowndes v The Queen (1999) 195 CLR 665
Marker v The Queen [2002] WASCA 282
Miller v The Queen [1999] WASCA 66
R v Votano [2000] WASCA 144
Radebe v The Queen [2001] WASCA 254
Siganto v The Queen (1998) 194 CLR 656
Wong v The Queen (2001) 185 ALR 233; (2001) HCA 64
Case(s) also cited:
Cameron v The Queen (2002) 187 ALR 65
Lim v The Queen [1999] WASCA 296
Lowndes v The Queen (1999) 195 CLR 665
Quach v The Queen [1999] WASCA 210
R v Atholwood (1999) 109 A Crim R 465
R v Bellissimo (1996) 84 A Crim R 465
R v Darwell (1997) 94 A Crim R 35
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R v Olbrich (1999) 166 ALR 330
R v Peterson [1984] WAR 329
Worth v The Queen [2001] WASCA 303
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1 MALCOLM CJ: In my opinion, this application for leave to appeal against sentence should be refused. I have reached this conclusion for the reasons to be published by Olsson AUJ with which I am in entire agreement.
2 STEYTLER J: I have had the advantage of reading the judgment to be delivered by Olsson AUJ. It is consequently unnecessary for me to set out the circumstances surrounding the commission of the offence the subject of the appeal or the various matters which were raised in mitigation on behalf of the applicant at the time at which he was sentenced.
3 As Olsson AUJ has pointed out, the applicant complains, firstly, that the sentence of 10 years' imprisonment imposed upon him in respect of count 1 on the indictment, being an offence of possession of a quantity of methylamphetamine with intent to sell or supply it to another, was manifestly excessive. He contends, in support of that broad ground (ground 1 of the grounds of appeal), that the sentence was outside the range of sentences commonly imposed for offences of a similar type, failed properly to reflect the mitigatory value of facts personal to him, including his prospects of rehabilitation, his lack of prior relevant convictions, psychological factors and his remorse, and failed properly to reflect the mitigatory value of his plea of guilty.
4 The applicant's second and third grounds of appeal overlap ground 1. Ground 2 is to the effect that the sentencing Judge used too high a starting point (one of 12 years' imprisonment) and failed, in doing so, to take proper account of the quantity of methylamphetamine found in the applicant's possession, the purity of that methylamphetamine and the applicant's role as a courier for reward delivering a bulk quantity of the drug under instructions from unidentified persons further up the chain of distribution. Ground 3 is to the effect that the sentencing Judge erred in giving a discount of approximately 15 per cent in respect of factors personal to the applicant and his plea of guilty.
5 As to the contentions that the starting point for the sentence ultimately imposed was too high and that the sentence imposed was outside the range of sentences commonly imposed for offences of a similar type, nothing which was placed before us leads me to conclude that either contention has been made good.
6 The maximum sentence for possession of prohibited drugs with intent to sell or supply under s 6(1) and s 34(1)(a) of the Misuse of Drugs
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Act 1981 (WA) is a fine of $100,000, imprisonment for a term of 25 years, or both. In this case the applicant had in his possession a very large quantity of methylamphetamine, 422.5 grams in all. The drug had a relatively high purity of 59.3 per cent. As Anderson J pointed out in Marker v The Queen [2002] WASCA 282 (an appeal involving the applicant's co-accused), taking an average "street" purity of 7 per cent, the 422.5 grams of methylamphetamine brought to Perth by the applicant had the potential to yield nearly 3.6 kilograms for street distribution.
7 Moreover, as Anderson J said in Chick v The Queen [2000] WASCA 231 at [25]:
"The Court has noted on many previous occasions that the distribution of drugs such as amphetamines is causing enormous community concern and is doing a great deal of harm, especially to young people. It has long been recognised that illegal drug abuse has become a serious problem in Australia and the courts are obliged to fashion sentences which really do have a deterrent effect. Methylamphetamine is now regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs. If it is not quite in the same category as heroin and cocaine, it is very nearly in that category: Bellissimo (1996) 84 A Crim R 465; Darwell (1997) 94 A Crim R 35, especially per Malcolm CJ at 40."
8 The High Court has pointed out, in Wong v The Queen (2001) 185 ALR 233; (2001) HCA 64 at [68], per Gaudron, Gummow and Hayne JJ, that it must be recognised that not all offenders will know or even suspect how much pure narcotic is to be imported and that [69] there will consequently be many cases in which a sentencing Judge will be more concerned to identify the level of the offender's criminality by looking to the state of the offender's knowledge about the importation in which he or she was involved. Their Honours pointed out (ibid) that, often enough, information about the kind and size of reward given or promised to the offender for involvement in the importation will be seen as important in fixing a sentence and distinguishing between offenders.
9 In this case the sentencing Judge was prepared to accept that the applicant's role was that of a courier for reward, the reward being the payment of $5000 and the applicant's expenses, and that he delivered "a bulk quantity" of the prohibited drug. He was also prepared to accept that the $39,950 in cash found in the applicant's possession might have been the proceeds, collected by the applicant, of an earlier drug transaction in
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- respect of which the applicant had otherwise played no part. On the findings made by the sentencing Judge, it is plain that, even if the applicant did not know what was the purity of the methylamphetamine in his possession, he undoubtedly knew that he was dealing in a very large quantity of the drug at a "wholesale" level. Moreover, if it be assumed, as the sentencing Judge was prepared to assume, that the sum of $39,950 found in the applicant's possession was not from his own sale of drugs, his receipt of that sum must have reinforced his knowledge that those on whose behalf he was acting engaged in large "wholesale" transactions, involving considerable sums of money. It must consequently have been apparent to him that the large quantity of drugs in his possession might, at least, be of a high level of purity.
10 In my opinion, in all of these circumstances, it cannot be said that either the starting point of 12 years' imprisonment adopted by the sentencing Judge or the finishing point of 10 years' imprisonment arrived at by him was so high as to reflect a failure properly to exercise the discretion entrusted to his Honour: Lowndes v The Queen (1999) 195 CLR 665 at 671 - 672. Nor, in my opinion, can it be said that the sentence imposed fell outside the range of sentences commonly imposed for offences of a similar type. So much is apparent from reference to two of the cases to which we were referred in the course of argument, being Radebe v The Queen [2001] WASCA 254 and Festus v The Queen [2002] WASCA 25.
11 In Radebe the Court was concerned with a woman who had pleaded guilty to the importation of 229.7 grams of heroin with a purity of 76.4 per cent and who had not been the principal in the transaction. Malcolm CJ, with whom Anderson and McKechnie JJ were in agreement, said that it had appropriately been conceded that the range of sentences for that type of offence was between 9 and 13 years. He said also [16] that the applicant had failed to demonstrate that the selection of a starting point of 12 years was in error. In Festus, the Court was concerned with a man who had pleaded guilty to importing 449.2 grams of heroin into Australia with a purity of 60.8 per cent with intent to sell or supply it to another. He had been "targeted" by people who had been prepared to pay his expenses to come to Australia as an illegal immigrant, and then to stay there as a person granted refugee status, in order to get him, thereafter, to do their bidding with respect to the importation of drugs by making various threats to him and to a member of his family. The sentencing Judge used as a starting point a period of 12 years' imprisonment, which was discounted to 9 years to reflect the applicant's plea of guilty and his
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offer of co-operation. The application for leave to appeal against that sentence was refused.
12 While each of these cases necessarily turned upon its own facts and circumstances, they demonstrate, in my opinion, that the sentence of imprisonment imposed by the sentencing Judge, while severe, fell within the range of sentences imposed for offences of a similar type.
13 As to the remaining grounds of appeal, I am not persuaded that the sentencing Judge made any error in concluding that a discount of approximately 15 per cent (in fact 16.6 per cent) was adequate.
14 There is no suggestion that his Honour did not take into account the various matters which were relied upon in mitigation by the applicant. What is said is that he did not make a sufficient allowance for those matters.
15 As has been said by Olsson AUJ, factors such as prior good character are not given as much weight, in cases of this kind, as they might be in other cases. That is because it is notorious that persons of apparent good character are often recruited for tasks of the kind undertaken by the applicant, for the very reason that such persons are not likely to come under suspicion of the authorities. Factors of personal and general deterrence are consequently the dominant considerations: Marker v The Queen, above, at [83] and [84].
16 As to the applicant's plea of guilty, there was, in this case, little evidence of any genuine remorse or acceptance of responsibility, more particularly when regard is had for the lateness of the plea. Similarly, the lateness of the plea demonstrates only a limited degree of willingness to facilitate the course of justice.
17 In all of the circumstances, the discount of 2 years was, in my opinion, within the range of an acceptable sentencing discretion.
18 I would consequently dismiss the application for leave to appeal.
19 OLSSON AUJ: This is an application for leave to appeal against a sentence of 10 years' imprisonment with eligibility for parole imposed on the applicant by a District Court Judge. The applicant had pleaded guilty to a charge that, on 11 March 2000, he had in his possession a quantity of methylamphetamine with intent to sell or supply it to another.
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20 The application originally also sought leave to appeal against a concurrent sentence of 15 months' imprisonment with eligibility for parole imposed by the learned sentencing Judge in respect of a second admitted offence of having, on the same date, sold a quantity of methylamphetamine to another. However, that aspect of the matter was ultimately abandoned. The second offence related to the supply of a small quantity of the drug to another offender, one Marker.
21 The applicant complains that the sentence imposed in respect of the possession offence was manifestly excessive, in that it:
1. was outside the range of sentences commonly imposed for offences of a similar type;
2. failed to properly reflect the mitigatory value of facts personal to the applicant, including his prospects of rehabilitation, his lack of prior relevant convictions, psychological factors and his remorse; and
3. failed to properly reflect the mitigatory value of his plea of guilty.
22 It is further said that, having regard to the quantity of drug in the applicant's possession, its purity and his role as courier for reward, the learned sentencing Judge took too high a starting point for sentencing; and that a discount of 15 per cent from that starting point applied by the learned sentencing Judge did not adequately reflect the factors adverted to in 2 and 3 above.
Relevant facts
23 The applicant is 37 years of age, born in Victoria of Greek parents and usually resident in that State. He is not married, but had been in a relationship with a young woman for some six years at the time when he was sentenced. He is a fit, healthy man and has no record of substance abuse.
24 On 11 March 2000, as a result of information received, the Australian Federal Police became aware that the applicant was in Perth. They placed him under surveillance.
25 It appears that he had initially checked into the Novotel, but could not obtain accommodation there for more than one night. He therefore booked into a room at the Sheraton Hotel at about 4.00 pm on 11 March, having had a day room at The Terrace, prior to then. He made no attempt to hide his identity, either with flight or hotel bookings.
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26 At about 6.00 pm, the applicant was seen to leave the Sheraton and make a telephone call from a nearby public telephone. He was subsequently observed meeting the offender Marker outside the hotel. The two men then proceeded to the applicant's room on the 18th floor.
27 It was not disputed that, whilst in his room, the applicant supplied Marker with a small sample quantity of methylamphetamine (referred to as "a taster") from a larger quantity of that drug which the former had in that room. The sample was contained in a paper fold, made from a segment of Sheraton Hotel stationery supplied in the room. It seems common ground that Marker intended to take the sample so that it could be tested as to its quality.
28 It was said, in the course of sentencing submissions on behalf of the applicant, that he had brought the package of drug from Victoria on behalf of an unidentified principal in return for a payment of the order of $5000; that he knew that the drug was methylamphetamine, but not the level of its purity. He was handed the package by an inter-mediary, together with money for air fares and hotel expenses. He was told to telephone certain numbers in Perth from public phone boxes, to obtain further instructions. It was asserted that he was further instructed to receive a cash sum of $40,000 from a person to be met outside the Novotel, in payment of a debt in respect of an unrelated transaction. This was to be brought back to Melbourne.
29 It was also represented to the learned sentencing Judge that on making a telephone call after arrival in Perth he was to meet the offender Marker and give him a small sample of the drug to take away. He would receive later instructions concerning the bulk of the consignment.
30 When Marker left the applicant's room at about 7.30 pm, he was apprehended by federal agents and searched. He was found to be in possession of two quantities of methylamphetamine.
31 The first was in the form of an off-white powder, contained in a plastic bag in his trouser pocket. This was later found to weigh 53.9 grams and have a purity of 41 per cent. It is not suggested that this was supplied to him by the applicant.
32 The second was the sample above referred to. It weighed 0.1 of a gram and was of a purity of 59.3 per cent.
33 Other federal agents in possession of a warrant then entered the room occupied by the applicant. He was alone.
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34 The applicant was searched and found to be in possession of $1230 in cash. Upon a more general search of the room itself police found a plastic bag containing a white powder behind a curtain. This had with it $39,950 in cash, the notes being folded in several bundles.
35 The white powder was later found to comprise 422.5 grams of methylamphetamine of a purity of 59.3 per cent. The learned sentencing Judge concluded that Marker had been sent by others, to report on the quality of the sample as a prelude to the consummation of a potential purchase of the bulk quantity couriered by the applicant.
36 The applicant denied any knowledge of the white powder, the bundles of money, or having entered into any transaction with Marker. He maintained that stance in the course of a subsequent video record of interview. He told the police that he had arrived in Perth the previous day and had stayed at the Novotel on the preceding night. He said that he was unemployed and had booked a return flight to Melbourne for the following day. He claimed that, when he had previously been working, he had saved money to travel.
37 He was arrested and charged with the two counts referred to above.
The applicant pleads
38 The applicant first appeared before a Court of Petty Sessions on 17 March 2000. There were a number of subsequent appearances, in the course of which he elected for a preliminary hearing. That preliminary hearing took place on 18 and 19 December 2000, at which time the applicant entered pleas of not guilty to the two counts against him. He was, on 19 December 2000, committed for trial in the District Court.
39 Both the applicant and Marker appeared before the District Court on 14 March 2001. There were subsequent appearances at a status conference and a listing conference. On 29 June 2001, applications were made to sever the indictment, which contained not only the counts against the applicant, but also two counts against Marker. Those applications were refused and, on 27 July 2001, the trial of both alleged offenders was listed to commence on Monday, 18 February 2002.
40 On Thursday or Friday preceding that date it was intimated to the Court that Marker would be pleading guilty to possessing methylamphetamine with intent to sell or supply it to another and also to an amended count of simple possession.
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41 When the matter was called on for trial on the Monday, counsel for the applicant requested that it be stood over, to enable him to confer with his client. That application was acceded to. On the following day the applicant pleaded guilty to the two charges against him.
42 In the course of sentencing submissions, counsel for the applicant said that his client had changed solicitors twice before engaging his then current solicitors. The first had demanded a large sum in advance, before representation would continue. The applicant then retained a solicitor in Victoria who, himself, came into conflict with the law and was imprisoned. It was asserted that the applicant was initially given unrealistic legal advice and had experienced considerable difficulty in maintaining contact with his advisers.
43 The Court was told, on 20 February 2002, that it was "only recently" that the applicant had received an honest appraisal of his situation, which accorded with what he, himself, had appreciated for a long time. The delay on the preceding Monday had been caused by a desire to know what was being asserted on behalf of Marker. It was recognised that the plea was late, but it "would have been much earlier but for [the applicant's] misfortunes with his legal representation".
A sentencing issue
44 In the course of sentencing submissions questions arose as between the applicant and the Crown as to what inference should be drawn from the possession of the large sum of money found in the applicant's hotel room, the nature of the transaction between him and the offender Marker and the state of his knowledge of what he was selling and its purity. The Crown strongly asserted that, absent evidence by the applicant to the contrary, it ought to be inferred that he well knew what it was that he had couriered and its value and that the proposed sale of the 422.5 grams of drug was not an isolated transaction, but part of a wider importation into Western Australia. Counsel for the Crown contended that the whole circumstances indicated that the applicant was more than a naïve, "one off" courier and that he well knew "how to deal with preparing and supplying a sample to Mr Marker" so that the latter could go away with it for someone to "make a decision as to whether they would accept the supply" from the applicant. These were, it was said, the actions of a man who "knew exactly what he was doing", a person who was much more knowledgeable than was being represented to the learned sentencing Judge. The absence of scales or other indicia of the retail seller did not gainsay such a situation, because this was a higher level bulk sale
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- transaction of high-grade drug - as the applicant must have well appreciated.
45 The prosecution stressed that neither offender had chosen to give or lead evidence on this aspect and it was simply not open to the applicant to seek to rely on mitigating aspects inconsistent with the scenario which plainly emerged from the evidence. He also made the point that common experience suggested that the sum of almost $40,000 would not merely have been paid for some unassociated past drug transaction, because it was most unlikely that drugs worth such an amount would have been supplied on credit.
46 It was urged upon the learned sentencing Judge that someone operating at the level of the applicant would not have been chosen unless highly trusted - a situation which implies that the applicant "must have known exactly what the principal was doing".
47 Counsel for the applicant sought to extricate his client from this type of reasoning by making the point that the applicant could not have afforded to enter the witness box for fear of what reprisals might flow from other prisoners, if he volunteered relevant information. It was urged that the only inference proper to be drawn was that the applicant was a paid courier and had no higher, nor more intimate, involvement in the trafficking activity.
48 It was further put on behalf of the applicant that the circumstances related to the $40,000 cash gave rise to no more than impermissible speculation, although it had to be conceded that "he [the applicant] must have at least realised that to obtain money of that level must have been to facilitate what would have occurred on a previous occasion, even though he was not selling the actual drug".
49 At the end of the day the learned sentencing Judge concluded that the applicant's "role was that of a courier for reward, delivering a bulk quantity of prohibited drug". The Judge did not make a finding as to precisely what was to be done by the applicant on arrival in Perth, and expressed the view that it "hardly makes any difference". The applicant was going to supply the drug as a vital link in the trafficking chain. The learned trial Judge did not consider that he was justified in finding that the $39,950 was from the sale of drugs by the applicant in Perth - it might have been collection for an earlier drug transaction, "although one might be sceptical that credit had been given for such a large amount".
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50 The learned sentencing Judge went on to reject any suggestion that the applicant had been naïve. He was satisfied that the applicant knew that the drug was methylamphetamine, that he was to receive a substantial payment for only a couple of days' work and that his background was such that he must have been aware of the drug trade and its impact on the community. He did not proceed to make more definitive findings than that.
The personal circumstances of the applicant
51 It was common ground that, at the time of his offences, the applicant had no relevant antecedent record. His only convictions were for relatively minor traffic offences.
52 He is one of three children and has accepted some responsibility for assisting in the care and oversight of a schizophrenic younger brother. He comes from a respectable family background. After leaving school at the age of 17 years he worked in the security industry, as a labourer, a delivery driver and a personal trainer. In the two years following his arrest he did not commit any other offences.
53 A psychological report tendered to the Court suggests that part of the motivation of the applicant was his need for finance to support his brother and the fact that he wishes to marry but, because of his unemployment, could appear to be a failure unless he could finance "at least some show in relation to a wedding". Nevertheless, the report said, he seemed fairly much in control of his life and was not driven to the relevant behaviour. He chose to do what he did "quite coldly".
54 The psychological report indicated that the applicant had expressed remorse concerning the situation and that he had let down the other members of his family. It suggests that the applicant considers himself to be the victim of his own naivety and not being discriminating as to the company which he kept. He retains the support of his family and de facto partner. The psychologist opined that he was approaching his situation with an appropriate level of responsibility and concern and that his prognosis for rehabilitation was good.
Some conceptual issues
55 As the learned sentencing Judge recognised, there are several fundamental conceptual aspects which had to be taken into account in sentencing the applicant.
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56 The present offence was typically one which fell within the same category as that described by Pidgeon J in Miller v The Queen [1999] WASCA 66. Although the applicant was not the prime mover in the relevant trafficking and did not appear to have any proprietary interest in the drugs involved, he, nevertheless, played a very significant part in the aiding of the moving of a bulk quantity of a dangerous and deleterious drug at an early stage of it disposition.
57 It is notorious that persons at the top of the hierarchy endeavour to engage for such tasks persons of apparent good character, who are not likely to come under suspicion of the authorities. The applicant was such a person and he knowingly and deliberately provided a vital link to enable a large quantity of methylamphetamine to be moved further down the line. This being so, factors such as prior good character are, in large measure, to be excluded in the sentencing process. The factors of personal and general deterrence must be dominant considerations (Marker v The Queen [2002] WASCA 282).
58 As Pidgeon J pointed out in Miller, it is now well established that amphetamine stands in the most serious category of drugs.
59 The next point to be made is that, to the extent to which the prosecution specifically challenged mitigating aspects sought to be relied on by the applicant, the onus was on the offender to establish his contentions on the balance of probabilities. (See authorities recently cited in Marker v The Queen (supra)). In the instant case no attempt was made to do so by calling or giving evidence. Any relevant assertions from the bar table therefore fell to be considered in light of any inferences which naturally and compellingly arose from the circumstances before the Court.
60 As is illustrated by the reasoning in R v Votano [2000] WASCA 144, the seriousness of offences such as those now under consideration depends on the quantities of the drug involved and, in particular, the degree of purity of any bulk quantity of powder. Here there was a large quantity of powder of a quite high level of purity. The transaction must, accordingly be seen as one well up the distribution chain, relatively close to the providers of its distribution. (As to the practical significance of this, note the reasoning in Chick v The Queen [2000] WASCA 231.)
61 An important consideration is the objective assessment of the role of the applicant. As McKechnie J said in Radebe v The Queen [2001] WASCA 254, care must be taken in the correct categorisation of the status of an offender and it is usually not helpful simply to classify that person
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- as a "mere courier". It is important to make an assessment of culpability on the objective circumstances.
62 Finally, in cases such as the present, there is a need to be objectively realistic in arriving at a sentencing discount in recognition of guilty pleas. The High Court has dealt with this issue quite specifically in Siganto v The Queen (1998) 194 CLR 656, where it was pointed out that a plea of guilty is taken into account for two reasons - first, that it is often evidence of some remorse and acceptance of responsibility on the part of an offender (although the plea does not, of itself, necessarily import remorse) and, second, because, as a matter of pragmatics, the community is spared the expense of a contested trial, ie, the plea is evidence of willingness to facilitate the course of justice.
63 It follows that a significant consideration is whether the relevant plea is entered at the first reasonable opportunity.
64 Another important aspect is the extent to which a plea can, on the facts, truly be said to reflect either remorse or even a willingness to facilitate the course of justice. It is well established by authority that, where an offender has been caught red-handed and any plea is little more than a realistic acceptance of an inevitable end result, then any discount to be allowed should normally be quite modest. (See the discussion on this topic in Radebe (supra)).
Conclusions
65 A number of the foregoing propositions may now be regarded as somewhat trite, but it is necessary to bear them firmly in mind in assessing the contentions advanced in support of this application.
66 It must be said that the starting point taken by the learned sentencing Judge was towards the top end of a permissible range, but I cannot accept that it was outside such a range.
67 Where I would join issue with what fell from His Honour is in relation to his apparent inclination not to draw any particular inference from, or attach specific significance to, the large sum of money found in the possession of the applicant.
68 True it is that care must be taken not to derive any inference which does not, in the absence of contrary evidence, arise beyond reasonable doubt; and the applicant is certainly not to be dealt with as for an offence with which he has not been charged.
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69 Nevertheless, the point was compellingly made in Marker (supra) that, on an evaluation of the objective criminality of any offence charged, it is necessary to examine how and in what manner the applicant fitted into the relevant drug scene. The true significance of the possession of the $39,950 was that it lent important colour to the offences specifically charged. It effectively debunked any thesis that the applicant was a mere naïve courier, caught in what was an isolated act of facilitating a "one off" delivery of bulk methylamphetamine. It plainly indicated that the offences charged were, to the obvious knowledge of the offender, part of a wider project of what must have been the distribution in the community of a much greater amount of the drug. This is so even if it could not reasonably be argued that the evidence unequivocally demonstrated that the funds were somehow related to the same overall delivery project as that involving the co-offender Marker.
70 Such a feature indicates to me that the present offender clearly fell within the sentencing range adverted to by Ipp J in Chick (supra), despite a slightly smaller empirical quantity of substance than was involved in that case. The offence remaining the subject of this application was a very serious example of its type and it is really an affront to common sense to suggest that the applicant may well not have appreciated the value of the drug delivery with which he was concerned and, thus, its degree of purity. This was, by any standard, patently, a major consignment of what he well appreciated was methylamphetamine. The sampling process was indicative of a consignment of considerable importance and value.
71 I am therefore unpersuaded that the learned sentencing Judge fell into error in the selection of his starting point.
72 I remain equally unconvinced that the learned Judge breached any principle in his approach to the discount to be allowed for the applicant's relevant plea of guilty. Such a contention is put to rest by the reasoning of the Court of Criminal Appeal in Marker, even accepting that there are some matters of factual background applicable to the situation of the applicant which did not arise in relation to Marker.
73 It seems to me that the conclusion of that Court, apropos Marker, that, in essence, the pleas entered indicated little more then some degree of willingness to facilitate the course of justice is no less applicable to the applicant. There is little to indicate true remorse on his part. Rather, what was said by him to the community corrections officer and reiterated by his counsel, seems more consistent with a practical realisation of the
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- inevitable legal consequences of his conduct and remorse in relation to what was about to happen to him, than an acceptance of true moral responsibility. The learned District Court Judge is to be pardoned for taking a somewhat cynical and sceptical view of the submissions made.
74 Further, I am of the opinion that the reasons advanced for the belated plea are far from convincing. Even given any problems which may have existed as between the applicant and his solicitors, the fact is that a lengthy period elapsed between his arrest and the preliminary hearing, he insisted on a full preliminary hearing and there was then an even longer period until the proposed trial date. The applicant himself apparently accepted that the end result was inevitable, yet he did nothing to instruct his solicitors that he desired to plead. Nor did he finally plead until he became aware of what Marker proposed to do. The obvious conclusion is that, in reality, he adopted a somewhat unrealistic Micawber-like stance - hoping that something might turn up to extricate him.
75 I consider that, in the circumstances, the discount allowed in recognition of the pleas and the matters personal to the applicant was quite generous.
76 I see no basis consistent with principle on which leave to appeal could properly be granted in this matter. I would dismiss the application.
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