Kleindyk v The Queen
[2016] WASCA 123
•13 JULY 2016
KLEINDYK -v- THE QUEEN [2016] WASCA 123
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 123 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:86/2015 | 4 MAY 2016 | |
| Coram: | McLURE P MAZZA JA MITCHELL J | 13/07/16 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application to adduce additional evidence dismissed Leave to appeal refused on proposed grounds 1 and 2 Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | PAUL KLEINDYK THE QUEEN |
Catchwords: | Criminal law Federal drug offences Trafficking in a marketable quantity of methamphetamine Attempting to traffic in a commercial quantity of methamphetamine Trafficking in a commercial quantity of MDMA Trafficking in a trafficable quantity of cocaine Total effective sentence of 18 years' imprisonment Sentencing factors Personal and general deterrence Part IB Crimes Act 1914 (Cth) Section 16A(2)(p) Crimes Act 1914 (Cth) Common law application of exceptional hardship to family and dependants Whether excessive hardship to family can be a personal matter of secondary importance in sentencing Impact of sentence on autistic son of appellant |
Legislation: | Crimes Act 1914 (Cth), pt IB Criminal Appeals Act 2004 (WA), s 27(3), s 40(1)(e), s 41(4)(a) Criminal Code (Cth), s 11.1, s 302.2(1), s 302.3(1), s 302.4(1), s 400.9(1) |
Case References: | Al Jrood v The State of Western Australia [2016] WASCA 73 Burns v The Queen (1994) 71 A Crim R 450 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Markovic v The Queen [2010] VSCA 105; (2010) 30 VR 589 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nguyen v The Queen [2001] WASCA 72; (2001) 118 A Crim R 519 R v Kleindyk [2015] WASCSR 78 R v Lee [2013] WASCA 216 R v Ng [2012] WASCA 180 R v Sinclair (1990) 51 A Crim R 418; (1990) 108 FLR 370 R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R 265 Rimington v The State of Western Australia [2015] WASCA 102 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 The State of Western Australia v Baldini [2015] WASCA 39 The State of Western Australia v Chapman [2012] WASCA 203 Trompler v The State of Western Australia [2008] WASCA 265 Vagh v The State of Western Australia [2007] WASCA 17 Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KLEINDYK -v- THE QUEEN [2016] WASCA 123 CORAM : McLURE P
- MAZZA JA
MITCHELL J
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : JENKINS J
File No : INS 19 of 2015
Catchwords:
Criminal law - Federal drug offences - Trafficking in a marketable quantity of methamphetamine - Attempting to traffic in a commercial quantity of methamphetamine - Trafficking in a commercial quantity of MDMA - Trafficking in a trafficable quantity of cocaine - Total effective sentence of 18 years' imprisonment - Sentencing factors - Personal and general deterrence - Part IB Crimes Act 1914 (Cth) - Section 16A(2)(p) Crimes Act 1914 (Cth) - Common law application of exceptional hardship to family and dependants - Whether excessive hardship to family can be a personal matter of secondary importance in sentencing - Impact of sentence on autistic son of appellant
Legislation:
Crimes Act 1914 (Cth), pt IB
Criminal Appeals Act 2004 (WA), s 27(3), s 40(1)(e), s 41(4)(a)
Criminal Code (Cth), s 11.1, s 302.2(1), s 302.3(1), s 302.4(1), s 400.9(1)
Result:
Application to adduce additional evidence dismissed
Leave to appeal refused on proposed grounds 1 and 2
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr T A Game SC & Mr D R Barrow
Respondent : Mr P N Bevilacqua
Solicitors:
Appellant : Holborn Lenhoff Massey
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Al Jrood v The State of Western Australia [2016] WASCA 73
Burns v The Queen (1994) 71 A Crim R 450
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Markovic v The Queen [2010] VSCA 105; (2010) 30 VR 589
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Nguyen v The Queen [2001] WASCA 72; (2001) 118 A Crim R 519
R v Kleindyk [2015] WASCSR 78
R v Lee [2013] WASCA 216
R v Ng [2012] WASCA 180
R v Sinclair (1990) 51 A Crim R 418; (1990) 108 FLR 370
R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R 265
Rimington v The State of Western Australia [2015] WASCA 102
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
The State of Western Australia v Baldini [2015] WASCA 39
The State of Western Australia v Chapman [2012] WASCA 203
Trompler v The State of Western Australia [2008] WASCA 265
Vagh v The State of Western Australia [2007] WASCA 17
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
1 McLURE P: This is an appeal against sentence. I would refuse leave to appeal on all grounds. Accordingly, the appeal is taken to have been dismissed: Criminal Appeals Act 2004 (WA), s 27(3).
2 The full factual background is detailed by Mazza JA and not repeated here. It is sufficient for present purposes to note the following. The appellant was sentenced on 29 April 2015 by Jenkins J to a total effective sentence of 18 years imprisonment, with a non-parole period of 11 years 3 months, for five offences against the Criminal Code (Cth). The offences involved one count of attempting to traffic in controlled drugs (9.734 kg of pure methylamphetamine), three counts of trafficking in controlled drugs (270.3 g of pure methylamphetamine, 2.7428 kg of pure MDMA, and 208.4 g of pure cocaine respectively), and one count of having dealt with money ($764,320 in cash) reasonably suspected of being the proceeds of crime. The methylamphetamine the subject of the attempt (the Australian Federal Police had removed the methylamphetamine and replaced it with an inert substance before it came into the appellant's possession) was valued at millions of dollars.
3 The appellant, who pleaded guilty to the offences, was aged 41 when they were committed in April 2014. At the time of sentencing the appellant had a long term partner with whom he had two children, a girl aged around 7 years and a son aged around 4 years. The appellant's son was diagnosed with autism spectrum disorder when he was aged 2. The appellant had a prior conviction for a drug offence committed in July 2006, for which he was convicted in June 2009.
4 The sentencing judge found that the drugs, money and paraphernalia found in the appellant's possession showed he was involved in, or very close to, the manufacture, storage, transporting and sale of a large quantity of different types of controlled drugs for which he had a high degree of responsibility and that he had played a vitally important role in the ultimate distribution of the drugs [44]. The sentencing judge also found that the appellant committed the drug trafficking offences in order to make money [47].
5 The appellant claims the sentencing judge erred in sentencing the appellant on the basis that matters personal to him and his prospects of rehabilitation were of secondary importance; and failed to properly take into account the exceptional hardship suffered by the appellant's family.
Ground 1 - sentencing principles
6 The sentencing judge made no material error in the statement or application of the relevant sentencing principles. The sentencing principles for federal offences and their application to, inter alia, federal drug trafficking offences, are considered at length in R v Lee [2013] WASCA 216 [23] - [25], [30] - [34]. In relation to the categories of federal offences in which significant weight is given to the sentencing objective of general deterrence, the consequence is that mitigating circumstances personal to the offender are accorded less weight than they would otherwise receive, more so in relation to the type of sentence than the length of the term: The State of Western Australia v Baldini [2015] WASCA 39 [23] - [28]. This approach is consistent with the broad, generalised statements of principle by the High Court in the various cases on which the appellant relies. In particular, the approach remains one of individualised justice, as explained in Al Jrood v The State of Western Australia [2016] WASCA 73:
As part of the process of intuitive synthesis, all relevant sentencing considerations, including all mitigating factors, must be taken into account in sentencing. Absent a relevant statutory provision … the weight to be accorded to the relevant sentencing considerations is assessed by reference to the recognised sentencing objectives and principles. That remains the case even for the limited classes of offence (such as drug dealing and child sexual offences) where general deterrence is the primary sentencing objective. In such cases, mitigating factors personal to an offender have a greater impact on the length of the term of imprisonment than on the type of sentence imposed [28].
Ground 2
7 As formulated, this ground complains of a 'weighting' error. In this jurisdiction, the failure to give adequate weight to a sentencing consideration does not, except in limited circumstances which do not apply in this case, give rise to an express error: Vagh v The State of Western Australia [2007] WASCA 17 [76]. Otherwise, a weighting error is just a conclusion that is implicit in, and flows from, a finding that a sentence (or a non-parole period) is manifestly excessive; it is not a reason for concluding that a sentence is manifestly excessive: Trompler v The State of Western Australia [2008] WASCA 265 [32]. There is no arguable foundation for a claim that the head sentence or non-parole period imposed on the appellant is manifestly excessive, and no such claim is made.
8 When confronted with the proposition that ground 2 did not plead an appealable error, senior counsel shifted his position to claim that the sentencing judge gave no, or de minimis, weight to her finding of exceptional hardship. That assertion is not borne out on a fair reading of the sentencing judge's reasons as a whole.
9 MAZZA JA: Before the court is the appellant's application for leave to appeal against sentence. If leave is granted and the sentences imposed at first instance are set aside, the appellant seeks to adduce additional evidence on the resentencing pursuant to s 40(1)(e) and s 41(4)(a) of the Criminal Appeals Act 2004 (WA) (appeal ts 2, 4).
10 On 13 April 2015, the appellant was convicted on his pleas of guilty of five offences in an indictment as follows:
(a) Count 1: attempted to traffic in a commercial quantity of methamphetamine (being 9.734 kg pure) on 26 April 2014 at Perth, contrary to s 302.2(1) and s 11.1 of the Criminal Code (Cth).
(b) Count 2: dealt with money (being $764,320 in cash) reasonably suspected of being the proceeds of crime on 26 April 2014 at Broadbeach Waters, Queensland, contrary to s 400.9(1) of the Criminal Code (Cth).
(c) Count 3: trafficked in a marketable quantity of methamphetamine (being 270.3 g pure) on 26 April 2014 at Miami, Queensland, contrary to s 302.3(1) of the Criminal Code (Cth).
(d) Count 4: trafficked in a commercial quantity of MDMA (being 2.7428 kg pure) on 26 April 2014 at Miami, Queensland, contrary to s 302.2(1) of the Criminal Code (Cth).
(e) Count 5: trafficked in a trafficable quantity of cocaine (being 208.4 g pure) on 26 April 2014 at Miami, Queensland, contrary to s 302.4(1) of the Criminal Code (Cth).
11 A commercial quantity of methamphetamine is 750 g and, of MDMA, is 500 g. A marketable quantity of methamphetamine is 250 g and a trafficable quantity of cocaine is 2 g.
12 The maximum penalty for each offence is:
(a) Counts 1 and 4: life imprisonment or 7,500 penalty units ($1,275,000) or both.
(b) Count 2: 3 years' imprisonment or 180 penalty units ($30,600) or both.
(c) Count 3: 25 years' imprisonment or 5,000 penalty units ($850,000) or both.
(d) Count 5: 10 years' imprisonment or 2,000 penalty units ($340,000) or both.
13 On 29 April 2015, Jenkins J sentenced the appellant as follows:
(a) Count 1: 14 years' imprisonment.
(b) Count 2: 1 year 3 months' imprisonment.
(c) Count 3: 6 years' imprisonment.
(d) Count 4: 9 years' imprisonment.
(e) Count 5: 5 years' imprisonment.
14 The sentences imposed on counts 2, 3, 4 and 5 were each ordered to commence on 26 April 2014 and the sentence imposed on count 1 was ordered to commence on 26 April 2018. Thus, the total effective sentence was 18 years' imprisonment. Her Honour set a non-parole period of 11 years 3 months' imprisonment.
The facts of the offending
15 A statement of agreed facts was read in open court by the prosecutor. Those facts were, in substance, repeated in her Honour's sentencing remarks: R v Kleindyk [2015] WASCSR 78. The facts of the offending were described by her Honour as follows:
The basic facts of these offences are that on 11 April 2014 a large metal box measuring approximately one metre long and one metre wide was transported from New South Wales to Western Australia. On 15 April 2014, the box arrived at a freight depot in Perth. The AFP executed a search warrant at the depot and seized the box. It was secured by four padlocks.
The consignment note accompanying it said that it was consigned by Wayne Clifford of JC Engineering of an address in Rocklea in Queensland. It was consigned to the same person of JC Engineering at a depot in Perth.
On 16 April 2014 the AFP conducted an examination of the box which was found to contain, amongst other things, two cardboard boxes. The boxes contained a number of five litre clear plastic containers containing a white crystalline substance which was methamphetamine. The total weight of methamphetamine was 12.48 kg. The calculated total pure weight of methamphetamine was 9.734 kg. Thus it had a purity of 77.9%.
The AFP removed the methamphetamine from the plastic containers and replaced it with an inert substance. The physical appearance of the substituted material was noticeably different to the methamphetamine. The AFP then returned the consignment to the freight depot.
On 17 April 2014 you travelled from Brisbane to Perth by air, arriving at 2.40 pm in the afternoon. You hired a car at the airport. At 9.13 am on 26 April 2014 you drove to a business known as Welshpool Self-Storage. You entered unit 138 by using a key to open the padlock securing the roller door. You were carrying a large empty red and black travel bag.
Although I am not told how or when it occurred, the box which now contained the inert substance had been picked up from the freight depot and left at unit 138. You opened the box by unlocking the four padlocks which secured it. You removed the first cardboard box from the consignment, pulled out one of the clear plastic containers containing the substituted material, examined the contents of the container by tipping it up and down, examined the contents of the other clear plastic containers from the first cardboard box, removed the second cardboard box and examined the contents of the clear plastic containers.
You appeared to be confused, and became agitated. You walked outside unit 138, and appeared to be texting on a mobile phone for some time. You then re-entered unit 138, placed a 'Chux' style wipe over your hands, and closely re-examined the contents of the clear plastic containers from the first cardboard box.
You paced around the inside of unit 138 before exiting and closing the roller door. You immediately re-opened the roller door and re-entered unit 138, where you placed the 'Chux' style wipe over your hands and closely re-examined the contents of the clear plastic containers from the first cardboard box again. You then left unit 138 and padlocked the roller door.
You then drove to a shopping centre car park in Victoria Park, and appeared to use a mobile telephone on several occasions. You then travelled back to Welshpool. At about 10.44 am you went back into unit 138 and re-examined the contents of the boxes, again using the 'Chux' style wipe to cover your hands. You replaced the containers and boxes back into the consignment box, and secured it with the padlocks. You then travelled to East Perth where you were arrested and charged with attempt to traffic a commercial quantity of methamphetamine, being count 1 on the indictment.
A person called Wayne Clifford of Londonderry in New South Wales has also been charged with this offence. He is awaiting committal in New South Wales. Therefore, the named consignor/consignee appears to have been a real person. However, I have received no further information as to whether or not he did consign the goods, or whether he was the intended recipient of them.
Later on the same day AFP Brisbane officers executed a number of search warrants on your home and a storage shed leased by you, both of which are on the Gold Coast in Queensland. During the execution of the warrants, among other things, police seized from your rented home in the suburb of Broadbeach Waters, cash totalling $764,320. Some of this was found beneath the bed in the second bedroom, and the rest was found in a cupboard in the bedroom occupied by you and your partner. Those are the facts in respect of count 2 on the indictment.
The police also found a drum of acetone, a drum containing 10 litres of isopropyl, and 7.98 kg of dimethyl sulfone. Acetone and isopropyl are used to purify and refine methamphetamine from liquid to crystal form. Dimethyl sulfone is used as to [sic] cutting agent to dilute methamphetamine.
1.5 g gross or 1.1 g of pure methamphetamine crystal were found on a dish and traces of methamphetamine were found on two Ph testing kits, and a couple electronic hot-plate's [sic], all of which were found in a walk-in robe in a bungalow on the property.
You have asked that I take into account in sentencing you, the offence on Stirling Gardens prosecution notice 93 of 2014, being possession of 1.1 g of methamphetamine, contrary to the s 308.1(1) of the Commonwealth Criminal Code. It is appropriate that I take that offence into account, and I do so in sentencing you for the offences on the indictment.
At a rented storage unit in the suburb of Miami in Queensland, AFP agents located a set of five kilogram scales, a 2,000 ml Symex glass filter tube and a 2,000 ml clear glass beaker. Your fingerprints were located on the glass beaker. In the storage unit the AFP officers also located the drugs which are the subject of the remaining charges. They located a plastic food storage container holding 498.4 g of methamphetamine crystal. That had a pure methamphetamine content of 270.3 g. Those are the facts in respect of count 3.
They found two cardboard boxes containing 41 individually sealed bags containing MDMA tablets. They had a gross weight of 11,787.5 g, and they contained 2,742.8 g of pure MDMA. Those are the facts in respect of count 4. And in respect of count 5, they located a plastic food storage container holding 263.8 g of powder which had a weight of 208.4 g of pure cocaine. You had leased the storage unit, commencing on 12 August 2013 [8] - [23].
16 Her Honour found that the value of the drugs removed by the AFP and the subject of count 1, if sold by the kilogram, was between $2,496,560 and $3,994,496. If sold by the ounce, the value was between $3,080,000 and $8,360,000. The value of the drugs the subject of count 3, if sold by the ounce, was between $70,000 and $190,000. The value of the drugs the subject of count 4 was between $884,063 and $2,946,875. The value of the drugs the subject of count 5, if sold by the ounce, was between $38,500 and $84,000 (sentencing remarks [26] - [30]).
17 As to the appellant's role in these offences, the learned sentencing judge found that he was significantly involved in a major drug distribution enterprise, although he was not the main or sole organiser of it (sentencing remarks [41]). She described the appellant as 'a trusted underling' (sentencing remarks [43]). Her Honour made these observations about the appellant's role in the offences:
[I]t was you who had the responsibility of travelling to Western Australia, attending the storage unit, checking on the drugs and moving them from there. The fact that you checked the drugs and immediately exhibited behaviour consistent with you being concerned that the contents of the containers were not controlled drugs indicates that you had an awareness of what you were looking for. I do not know whether you then contacted underlings or people higher up in the chain than you. It seems unlikely that if Mr Clifford was significantly higher up the chain than you that he would have allowed his name to be put on the consignment note.
The drugs and other paraphernalia found in your home and storage unit mean that I am satisfied beyond reasonable doubt that your involvement went far beyond that of a trusted underling. In this respect I accept the Crown's submission that the unfettered access you had to the drugs money and chemicals as well as the apparently sole responsibility you had for transporting the drugs in Western Australia is inconsistent with you simply being a trusted underling.
… the facts do not enable me to make findings as to your exact position in the drug enterprise but I am satisfied beyond reasonable doubt that you were much more than a bare courier and a safe keeper of the drugs for others. The drugs, money and paraphernalia found in your possession show that you were involved in or very close to the manufacture, storage, transporting and sale of a large quantity of different types of prohibited drugs. You had a high degree of responsibility for these drugs. Your role must have been vitally important to the ultimate distribution of the drugs [42] - [44].
18 With respect to the money the subject of count 2, her Honour noted that the Crown did not allege that the appellant received it directly from his sale of drugs (sentencing remarks [85]).
19 None of her Honour's factual findings, including as to the appellant's role in the offending and his position in the drug hierarchy, were challenged in this court.
The appellant's subjective features
20 At the time he was sentenced, the appellant was 42 years old. He and his partner of 14 years have two children. The eldest child, a daughter, was about 7 years old at the time of sentencing and the youngest child, a son, was about 4 years old. The appellant's son was diagnosed with autism spectrum disorder when he was about 2 years old. I will say more about this shortly. Since leaving school, the appellant has worked in the fitness industry. He claimed to use alcohol only socially and not to use illicit drugs (sentencing remarks [50]).
21 The appellant has a relevant criminal record. Significantly, in June 2009, he was convicted in the Wollongong District Court in New South Wales, of supplying approximately 55 g of methamphetamine and possession of precursors, intending to use them in the manufacture of a prohibited drug. The relevant precursor was approximately half a litre of sassafras oil, which is used to make MDMA. For these offences, the appellant received a sentence of 2 years' imprisonment, suspended upon entering into a good behaviour bond for a period of 2 years. As a consequence of these convictions, her Honour was not prepared to find that the appellant was a person of good character (sentencing remarks [52]).
22 Among the sentencing materials at her Honour's disposal were a pre-sentence report and a psychological report. The learned sentencing judge did not accept the appellant's expressions of remorse made to the authors of those reports. She noted attempts made by the appellant to rationalise his offending behaviour by claiming that he committed the offences to help his son, and that he was unaware of the harm that the distribution of prohibited drugs did within the community. Despite this, her Honour concluded that the appellant had 'fair prospects for rehabilitation' (sentencing remarks [68]).
The sentencing remarks
23 Her Honour expressly referred to the general principles of sentencing federal offenders as set out in s 16A of the Crimes Act 1914 (Cth) (Crimes Act). She referred to the overarching principle in s 16A(1) that the sentence for each offence must be of a severity appropriate in all of the circumstances of the offence. As required by s 16A(2), she took into account the relevant matters listed in that subsection (sentencing remarks [63]).
24 The learned sentencing judge accepted that the appellant's incarceration would result in exceptional hardship to his son and thereby to the appellant's family (sentencing remarks [73] - [74]).
25 Her Honour considered that, although the finding of exceptional hardship to a family in other cases might warrant a substantial reduction in the sentence to be imposed, this was not such a case. Her Honour considered that there were other 'competing and overriding considerations' which meant that exceptional hardship had 'only a small part to play in the sentences [to be imposed]' (sentencing remarks [77]).
The proposed grounds of appeal
Proposed ground 1
26 Proposed ground 1 reads as follows:
Her Honour erred in sentencing the appellant on the basis that matters personal to him and his prospects of rehabilitation were of secondary importance.
27 It is said that the alleged error is evident from the following portion of her Honour's sentencing remarks:
The specific principles relevant to sentencing an offender for serious drug offences are well established. General and personal deterrence are extremely important factors in the sentencing of offenders. Other matters to be taken into account include the nature and level of your participation in drug dealing or trafficking within a particular organisation or generally and whether the offending was committed for commercial gain. The degree of purity of the drug is also a matter to be taken into account.
Matters personal to an offender and their prospects of rehabilitation, although they must be taken into account, are of secondary importance. This is because the distribution and use of illicit drugs, such as methamphetamine, MDMA and cocaine, in our community causes such great damage. It causes damage to the health of users and it damages their relationships with others. Users fail to meet their family and social obligations. Users often also resort to the commission of offences to support their habits and this causes more suffering in the community [64] - [65] (emphasis added).
28 Mr Game SC submitted on behalf of the appellant that her Honour's approach, and particularly the italicised portion of the passage quoted above, is erroneous. He mounted two arguments. First, he says pt IB of the Crimes Act does not prescribe such an approach. Second, the approach is inconsistent with High Court authority; notably, the statement made by Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465:
[S]entencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions (476).
- The appellant also referred to passages in other High Court cases, including: Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 [49]; Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [71]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [51] and Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [20]. It is unnecessary to extract those passages in these reasons. Neither of Mr Game SC's arguments can be accepted. I will deal with them in reverse order.
29 An almost identical argument was rejected by this court in Rimington v The State of Western Australia [2015] WASCA 102. In that case, the appellant submitted that the sentencing judge's observations to the effect that general deterrence is the dominant sentencing factor in cases of arson was inconsistent with High Court authority. Beech J (Buss & Mazza JJA agreeing) said:
The appellant fixes on the sentencing judge's observation that 'general deterrence is the dominant sentencing factor in cases of arson'. The appellant submits that this observation constitutes an error of principle because no one purpose of sentencing can be said to have the dominant role. The appellant argues that to state that general deterrence is the dominant sentencing factor for a particular class of offence is inconsistent with statements of the High Court that require a more sensitive approach, involving the weighing and balancing of the purposes of punishment in each case.
There is a long and consistent line of appellate authority in this State to the effect that, in cases of arson, general deterrence is the dominant sentencing factor and the personal circumstances of the offender carry less weight than they might do in other cases involving different offences. In The State of Western Australia v Bennett, Miller JA sets out these principles, drawing from earlier cases. Since then, they have frequently been cited with approval by this court.
Moreover, similar statements have been made in respect of other categories of offence. For example, for offences of trafficking in dangerous drugs of addiction, it is often said that the major sentencing considerations are general and personal deterrence.
The appellant submits that these statements are inconsistent with the approach to sentencing explained in Veen v The Queen (No 2) and in Markarian v The Queen. I do not accept that submission.
In those cases (and in many others) the High Court explains that the process of sentencing involves taking account of many considerations, some of which may be conflicting, to arrive at a sentence that is proportionate to the gravity of the offence committed by the offender in all of the circumstances. In my view, nothing said in those cases is inconsistent with an appellate court identifying that, in a particular class of offence, general deterrence is the consideration to which the most weight must be given.
Further, the statements to that effect in appellate decisions in this State are supported by what Gaudron, Gummow and Hayne JJ said in Wong v The Queen. In that case their Honours said that:
it may be appropriate [for an appellate court] to conclude that sentencers should give chief weight to general deterrence in sentencing for a particular kind of offence.
That is exactly what has occurred in this court in relation to offences of arson. The sentencing judge's observation that in cases of arson general deterrence is the dominant sentencing factor does not reveal any error [41] - [47] (footnotes omitted).
30 The same reasoning applies in this case.
31 The sentencing principles with respect to federal offences concerning the trafficking and dealing of prohibited drugs are uncontroversial. They were described by Buss JA (Newnes & Mazza JJA agreeing) in R v Ng [2012] WASCA 180 in these terms:
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. All of these propositions are well-established by the case law [34].
32 This statement of sentencing principle is consistent with the statement by Gaudron, Gummow and Hayne JJ in Wong, to which Beech J referred in Rimington.
33 The matters to which a sentencer must have regard when passing sentence in respect of a federal offence are those listed in pt IB of the Crimes Act. Section 16A(2) lists matters that the court must take into account in sentencing. That list is not exhaustive. For example, general deterrence is not one of the mandatory factors. However, it is well recognised that s 16A of the Crimes Act accommodates the application of common law principles of sentencing, including deterrence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [25] and R v Lee [2013] WASCA 216 [23] - [25]. The weight to be given to the matters in s 16A of the Crimes Act and any relevant common law principles of sentencing are matters for the sentencing judge's discretion. There is nothing in pt IB of the Crimes Act which prohibits a sentencer proceeding as the learned sentencing judge did in the present case.
34 For these reasons, her Honour's statement of principles at [64] - [65] of her sentencing remarks does not give rise to any error. She was, with respect, correct to sentence the appellant in accordance with those principles. Her approach is neither inconsistent with High Court authority, nor with pt IB of the Crimes Act.
35 I would not grant leave to appeal on proposed ground 1.
Proposed ground 2
36 Proposed ground 2 reads as follows:
Her Honour failed to properly take into account the exceptional hardship suffered by the appellant's family.
37 In this form, the proposed ground alleges, in effect, a weighting error. A failure to give adequate weight to a relevant sentencing consideration only gives rise to an express appealable error if it amounts to a failure to exercise a discretion actually entrusted to the court: Vagh v The State of Western Australia [2007] WASCA 17 [76]. Her Honour did not fail to exercise the discretion.
38 In oral argument, Mr Game SC explained that proposed ground 2 should be understood to allege legal errors in her Honour's approach to the question of family hardship (appeal ts 5 - 6). In order to understand these alleged errors, it is necessary to set out some of the relevant background.
39 Defence counsel at first instance, Mr Bolton, tendered evidence directed to establishing exceptional family hardship; most relevantly, a report written by a therapist, Ms Ann Gallagher, dated 2 April 2015. That report described the nature and severity of the appellant's son's autism, as well as the adverse effects that the appellant's absence has had on the child. Ms Gallagher also wrote that the child's condition and the appellant's absence have had a negative impact on the appellant's daughter and wife.
40 Defence counsel submitted that the hardship suffered by the appellant's family was mitigating in two ways: first, that by reason of his family's circumstances, his incarceration in Western Australia was more arduous; second, that his incarceration would result in exceptional hardship to his family. Her Honour rejected the first submission (sentencing remarks [80] - [81]), but accepted the second submission (sentencing remarks [74]). However, as I earlier noted, she accorded little weight to that factor (sentencing remarks [77]).
41 Her Honour's reasoning in respect of the first submission was as follows:
I have also been asked to take into account that because of your family's circumstances any sentence I impose will be harder on you.
I do not take that into account in mitigation of sentence. You committed these offences with your eyes wide open to the potential consequences to you and your family. It would be morally repugnant for me to reduce your sentence for the hardship to you that has resulted in your crimes being brought to light (sentencing remarks [80] - [81]).
42 This aspect of her Honour's sentencing remarks was not challenged in this court (appeal ts 11).
43 Her Honour approached the second submission in this way:
The effect of incarceration on your eldest daughter is regrettably commonplace. It does not amount to exceptional circumstances. In respect to your son, he still has his mother to care for him and State funded programs to help him. However, I acknowledge that your son's autism, his treatment needs, your absence from the family home and the lack of the legitimately earned income you brought into the home, will have a very detrimental effect on your son. This is a detriment much greater than would normally be experienced by an offender's family [73].
After considering all these matters I accept that your incarceration will result in exceptional hardship to your family. However, there are many other sentencing factors which have to be weighed with the probable effect that a sentence of imprisonment would have on your family. These include that your deliberate decision to involve yourself in a significant way in the illicit drug industry across two States is objectively a very serious course of offending [74].
When you did this you must have been aware, especially from your previous arrest and conviction, of the significant penalties you were likely to receive should you be convicted. You were prepared to take that chance even knowing how much your family relied on you [75].
This indicates to me that even though you have a fair chance of rehabilitation a personally deterrent sentence must still be imposed on you. As I have said, I also must impose a sentence which reflects the need for adequate punishment and general deterrence [76].
My primary function is to impose a sentence which reflects the seriousness of your crimes. The more serious the crimes, the more unlikely it is that an offender's family hardship can be reflected to any significant extent in the sentence to be imposed. So it is in your case. I would be doing less than my duty if I permitted myself to be much influenced by the plight of your family, so this is a case which is different from some. In other cases a finding of exceptional hardship to a family may mean a substantial reduction in sentence is warranted to alleviate that hardship. Whereas, in this case, my view is that although I have made a finding of exceptional hardship, that finding will, because of other competing and overriding considerations, have only a small part to play in the sentences I impose on you [77].
Further, I am not satisfied that [after] weighing all relevant circumstances any reduction in your sentence which could be justified by such a finding of exceptional hardship would be of significant practical effect for your family. This is because even a sentence which was reduced to some extent to take into account hardship to your family would result in you being in prison for most of your children's formative years [78].
The criminality inherent in the combination of all offences on the indictment is incapable of being adequately reflected in anything other than a long sentence of imprisonment. Nevertheless I do take into account the finding of exceptional hardship in mitigation of your sentence [79].
The appellant's submissions on proposed ground 2
44 As I understand Mr Game SC's submissions, he alleges that her Honour's approach was flawed in three respects:
(a) First, her Honour erred by taking into account that the appellant had committed the offences knowing that significant penalties were likely to be imposed in the event he was convicted.
(b) Second, the seriousness of the offending is not a factor to be taken into account in assessing the mitigating weight to be given to hardship to third parties and the learned sentencing judge erred in so doing.
(c) Third, her Honour erred by concluding that any reduction in the sentences by reason of exceptional hardship would not be of significant practical benefit to the appellant's family (appeal ts 6 - 11).
The law
45 At common law, hardship to third parties as a consequence of an offender's imprisonment is generally not regarded as a mitigating factor. This factor may only be taken into account as a factor reducing the otherwise appropriate sentence in exceptional circumstances: Burns v The Queen (1994) 71 A Crim R 450, 455 and Markovic v The Queen [2010] VSCA 105; (2010) 30 VR 589 [5] - [11] and cases there cited.
46 In Burns,Anderson J (with whom Pidgeon J agreed) said that, where exceptional hardship is established, it may be relevant to the sentencer's decision as to:
(a) whether or not to pass a custodial sentence at all;
(b) the length of any custodial sentence that is imposed (although in Burns it was said 'it would not often persuade the court to make a lengthy sentence somewhat shorter'); and
(c) whether or not to fix a non-parole period and its length (455).
Whether and to what extent exceptional hardship to third parties maybe be taken into account depends on the gravity of the offence (or offences) and the circumstances of the case: see The State of Western Australia v Chapman [2012] WASCA 203 [119].
47 In sentencing federal offenders, s 16A(2)(p) of the Crimes Act requires a court (where relevant) to take into account 'the probable effect that any sentence or order under consideration would have on any of the person's family or dependants'. The common law exceptional circumstances test has been held to apply to the application of s 16A(2)(p) of the Crimes Act. See, for example: R v Sinclair (1990) 51 A Crim R 418; (1990) 108 FLR 370; Burns; Markovic and R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R 265 [93]. I note the statements made by Wallwork J in Nguyen v The Queen [2001] WASCA 72; (2001) 118 A Crim R 519 [70] - [71] to the effect that, where s 16A(2)(p) is enlivened, it is an inappropriate response to say that an offender should have thought beforehand about the probable effect that any sentence would have on his or her family.
Discussion of proposed ground 2
48 I turn to the first alleged flaw. I do not accept that her Honour's approach was erroneous.
49 In the first sentence of her Honour's sentencing remarks at [74], she accepts that the appellant's incarceration will result in exceptional hardship to his family. Her Honour then immediately turns to the question of personal deterrence as being one of the 'many other sentencing factors which have to be weighed with the probable effect that a sentence of imprisonment will have on your family' (sentencing remarks [74]). She then proceeds to reason that personal deterrence is a relevant sentencing consideration, having regard to the deliberate decision the appellant made to engage in 'objectively a very serious course of offending' which he must have realised was likely to result in 'significant penalties' should he be convicted (sentencing remarks [74] - [75]). These factors indicated that '… a personally deterrent sentence must still be imposed on you' (sentencing remarks [76]). In my opinion, the appellant's preparedness to offend in the way that he did, knowing that, if he was convicted, a long period of imprisonment was inevitable, is a factor relevant to the question of whether personal deterrence was required. Her Honour did not link the appellant's knowledge of the consequences of his offending to the weight to be given to hardship to the appellant's family.
50 As to the second alleged flaw, the statement her Honour made at [77] of her sentencing remarks, '[t]he more serious the crimes, the more unlikely it is that an offender's family hardship can be reflected to any significant extent in the sentence to be imposed' is in accordance with authority and is not erroneous.
51 As to the third alleged flaw, the statement made by her Honour at [78] of her sentencing remarks regarding any practical benefit to the appellant's family of a reduction in sentence needs to be put in context. During the course of defence counsel's plea in mitigation, her Honour observed that the most important time for the appellant's family is going to be the next 4 or 5 years, and whether credit is given for exceptional hardship to his family is not going to make any difference to the next 4 or 5 years (ts 27). Defence counsel accepted that proposition. In light of this exchange, her Honour's conclusion at [78] of her sentencing remarks is unsurprising and not erroneous. I acknowledge Mr Game SC's submission that the appellant's son's autism will pose ongoing difficulties for the appellant's family beyond the child's formative years. I accept that it will. However, I do not see anything in her Honour's statement at [78] of her sentencing remarks from which it could be inferred that she was ignorant of that possibility, and did not take it into account when sentencing the appellant.
52 I would not give leave to appeal on proposed ground 2.
Application to adduce additional evidence
53 It is unnecessary to deal with the application to adduce additional evidence as this court's jurisdiction to resentence the appellant has not been enlivened. I would dismiss the application.
Conclusion and orders
54 As I would not give leave to appeal in respect of either proposed ground of appeal, the appeal must be dismissed.
55 The orders that I would make are as follows:
1. The application to adduce additional evidence is dismissed.
2. Leave to appeal is refused on proposed grounds 1 and 2.
3. The appeal is dismissed.
56 MITCHELL J: I agree with the orders proposed by Mazza JA for the reasons given by McLure P and Mazza JA.
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