Le v The Queen
[2004] WASCA 214
•24 SEPTEMBER 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: LE -v- THE QUEEN [2004] WASCA 214
CORAM: MALCOLM CJ
MURRAY J
ROBERTS-SMITH J
HEARD: 1 JULY 2004
DELIVERED : 24 SEPTEMBER 2004
FILE NO/S: CCA 117 of 2003
BETWEEN: THANH TRUC LE
Applicant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :JENKINS DCJ
File Number : IND 1052/2003
Catchwords:
Criminal law - Sentencing - Four counts of selling methylamphetamine and heroin - One count of offering to sell heroin - Aggregate sentence of 9 years 3 months imprisonment - Whether manifestly excessive - Applicant a drug addict dealing to support own habit - Dealing with undercover police officer - Whether sentences should have been concurrent - Mitigatory effect of fact applicant dealing with undercover police officer
Legislation:
Misuse of Drugs Act, 1981 (WA), s 6(1)(c), s 34
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Applicant: In person
Respondent: Mr B Fiannaca
Solicitors:
Applicant: In person
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cameron v R (2002) 209 CLR 339
Herbert v R [2003] WASCA 61; (2003) 27 WAR 330
Jackson v R, unreported; CCA SCt of WA; Library No 8752; 8 March 1991
Jarvis v R (1998) 20 WAR 201
Johnson v R (2002) 26 WAR 336
Kezkiropoulos v R [2002] WASCA 352
Korculanic v R, unreported; CCA SCt of WA; Library No 980437; 16 July 1998
Koushappis v R [2001] WASCA 18
Leonard v R, unreported; CCA SCt of WA; Library No 990152; 29 March 1999
Little v R [2001] WASCA 87
Lowndes v R (1999) 195 CLR 665
McLachlan v R [1999] WASCA 255
Miles v R (1997) 17 WAR 518
Mill v R (1988) 166 CLR 59
Pearce v R (1998) 194 CLR 610
Pieri v R [2001] WASCA 357
Postiglione v R (1997) 189 CLR 295
Quach v R [1999] WASCA 210
R v Bellissimo (1996) 84 A Crim R 465
R v Chick (2000) 114 A Crim R 417
R v Gurka (2001) 120 A Crim R 407
R v Heferen (1999) 106 A Crim R 89
R v Mickelberg (1984) 13 A Crim R 365
R v Reppucci (1994) 74 A Crim R 353
R v Rossi (1988) 142 LSJS 451
R v Vuckov (1986) 40 SASR 498
R v Wale (2001) 126 A Crim R 370
R v White [2002] WASCA 112
Sinagra‑Brisca v R [2004] WASCA 68
Tsagaris v R, unreported; CCA SCt of WA; Library No 980721; 14 December 1998
Vogel v R [2002] WASCA 261
Case(s) also cited:
Ridgeway v R (1995) 184 CLR 19
R v Sloane (1990) 49 A Crim R 270
R v Taouk (1992) 65 A Crim R 387
MALCOLM CJ: This is an application for leave to appeal against sentence. The applicant was unrepresented and conducted his own case in which he relied upon written submissions. In this context, counsel for the State also relied upon his written submissions.
On 18 July 2003, the applicant was sentenced to a total of 9 years and 3 months' imprisonment in respect of five offences contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA), namely:
(1)on 31 March 2003 at Yokine he sold a prohibited drug, namely methylamphetamine to another;
(2)on the same date at Dianella he sold a prohibited drug, namely, heroin to another;
(3)on 3 April 2003 at Dianella he sold a prohibited drug, namely, heroin to another;
(4)on the same date and at the same place as in count (3) he sold a prohibited drug, namely, methylamphetamine to another; and
(5)on 16 April 2003 at Perth he offered to sell a prohibited drug, namely, heroin to another.
The sentences were imposed following the applicant's plea of guilty to each of the offences charged on the indictment. The sentences imposed by the learned Judge were as follows:
Count (1) selling a prohibited drug, namely, methylamphetamine, imprisonment for 2 years and 1 month;
Count (2) selling a prohibited drug, namely, heroin, imprisonment for 12 months;
Count (3)selling a prohibited drug, namely, heroin, imprisonment for 4 years and 11 months;
Count (4)selling a prohibited drug, namely, methylamphetamine, imprisonment for 4 years and 2 months;
Count (5) offering to sell a prohibited drug, namely, heroin, to another, imprisonment for 4 years and 4 months cumulative on the sentence for count (3).
All other sentences were directed to be served concurrently.
The applicant was unrepresented. His application was prepared by the staff of the Supreme Court although the applicant did, in the end, compile his own application book which was handed up at the time of the hearing. The applicant appeals on the following grounds:
"(1)The learned Judge's sentencing discretion miscarried when she sentenced the prisoner to a combined sentence of 9 years and 3 months' imprisonment, which was manifestly excessive in all of the circumstances.
(2)The learned Judge's sentencing discretion miscarried when she ordered that count 5 be served cumulative on count 3, which in all the circumstances makes the sentence excessive.
(3)The learned Judge's sentencing discretion miscarried when she failed to give enough weight to the fact that the sales of the prohibited drugs were to an undercover police officer.
(4)The learned Judge's sentencing discretion miscarried when she sentenced the prisoner to 4 years and 4 months in relation to count 5, which was manifestly excessive in all of the circumstances as there was no actual transaction rather than an offer to sell.
(5)The sentencing Judge's discretion miscarried when she sentenced the applicant on the same basis as an actual sale of a prohibited drug."
In sentencing the applicant, the learned Judge made it clear that the applicant was being given a discount on the sentence, which would otherwise been imposed, of 30 per cent in respect of his pleas of guilty under the fast‑track system. This indicates that the total sentence which would otherwise have been imposed must have been a little under 14 years. The maximum penalty under s 34 of the Misuse of Drugs Act 1981 for each of the offences committed by the applicant under s 6(1)(c) is a fine of $100,000 or imprisonment for 20 years or both.
The applicant was also convicted of driving a motor vehicle without being in possession of a current motor driver's licence and four other charges on a s 32 notice, in respect of which the applicant was sentenced to 6 months' imprisonment on each count and a motor driver's licence disqualification period of 9 months was imposed in respect of each offence. None of the sentences imposed in respect of the charges the subject of the s 32 notice were challenged by the applicant. Each of those five periods of imprisonment in respect of the offences the subject of the s 32 notice were directed to be served concurrently with each other, but cumulatively on the 9 years and 3 months for the heroin offences, so that the total of the sentence imposed was imprisonment for 9 years and 9 months. An order was made that the applicant be eligible for parole and the sentences were directed to commence as from 15 July 2003. An order was made for the destruction of the drugs, the subject of the counts on the indictment.
It should be noted that the drugs involved in the five counts on the indictment were:
count (1)6.94 grams of 81 per cent pure methylamphetamine;
count (2)0.47 grams of 22 per cent pure heroin (although the learned sentencing Judge erroneously referred to the amount as 4.7 grams);
count (3)55.95 grams of 19 per cent pure heroin;
count (4)27.9 grams of 83 per cent pure methylamphetamine; and
count (5)12 ounces (approximately 340 grams) of heroin.
The principles upon which an appellate court must deal with an appeal from a decision in the exercise of the sentencing discretion require that it be shown that the sentencing Judge had failed to properly exercise his or her discretion: Lowndes v R (1999) 195 CLR 665.
Ground (1)
As to ground (1), in the context of drug offences of this kind, the antecedents of an offender are of very limited significance. The paramount considerations in determining an appropriate sentence are the need for general deterrence; the adverse consequences to the community of trafficking in heroin; and the need to reflect the serious nature of such offending. In Quach v R [1999] WASCA 210 at [13] Ipp J said:
"In my view, his Honour did not err in finding that mitigating factors were of little consequence. The prevalence and seriousness of criminal heroin use make deterrence the principal consideration in sentencing for heroin related offences. The terrible consequences to the community of trafficking in this drug are notorious. Where an offender consciously and deliberately, knowing full well what harm will be done thereby, participates (no matter in what capacity) in the heroin trade for commercial gain, it is ordinarily futile to argue that personal circumstances and antecedents have significant mitigatory force. See, for example Darwell v The Queen (1997) 94 A Crim R 35, Heryadi v The Queen (1998) 98 A Crim R 578, and Musarri v R, unreported; CCA SCt of WA; Library No 980662; 17 November 1998."
The approach to sentencing in relation to trafficking in methylamphetamine is similar: Kezkiropoulos v R [2002] WASCA 352. Further, sentences in respect of offences involving the distribution of methylamphetamine have tended to be "firmed up" because of the need for general deterrence and a recognition that sentences previously imposed did not act as a sufficient deterrent: R v Bellissimo (1996) 84 A Crim R 465.
In sentencing the applicant, the learned sentencing Judge noted that the applicant's pleas of guilty were fast‑track pleas which raised the question of what credit should be given to the applicant for that plea based upon the extent to which it was indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. It was acknowledged that the plea was entered at the first available opportunity and justified a 30 per cent discount on the sentence which would otherwise have been imposed in consideration of the guilty plea. In arriving at that discount, her Honour made it clear that she took into account that the prosecution case was "very strong".
The learned Judge noted that the maximum penalty for the offences on the indictment were in each case imprisonment for 25 years or a fine of $100,000 or both.
As to counts 1 and 2 on the indictment, the facts were that on 31 March 2003, the applicant met an undercover police officer at a private house in Yokine and sold to the officer 6.94 grams of methylamphetamine, commonly known as ice, to the undercover officer for the sum of $2300. The methylamphetamine was 81 per cent pure. Later on the same day, in the carpark of the Inglewood Aquatic Centre in Dianella, the applicant sold the same undercover officer 4.7 grams of heroin for $250. The heroin was 22 per cent pure. That offence was the subject of count 2 on the indictment.
In relation to count 3 on the indictment, on 3 April 2003 at the Inglewood Aquatic Centre, the applicant sold the undercover officer 55.95 grams of heroin which was 19 per cent pure. In relation to count 4 on the indictment, on the same date as referred to in count 3, and at the same place, the applicant sold the undercover officer 27.9 grams of methylamphetamine for the sum of $7000. The methylamphetamine the subject of that transaction, was 83 per cent pure.
In relation to count 5, on 15 April 2003, the applicant negotiated with the undercover officer for the sale of 12 ounces, or 340 grams of heroin. There was a discussion about price and availability and on the following day, 16 April 2003, the applicant offered to sell 12 ounces of heroin to the undercover officer for $10,000 per ounce, a quantity of $120,000. The applicant also asked to be paid $2000 on top of the purchase price for the delivery of the heroin. This was agreed and it was arranged for the exchange of drugs and money to occur later.
The sale of this last quantity of heroin did not proceed. In the meantime, the applicant was tipped off about the identity of the undercover officer. In his video record of interview, however, the applicant said that he could not obtain such a large amount of heroin at that time and that was the reason why the sale did not proceed.
In his record of interview, the applicant said that a friend of his introduced him to the undercover officer. The undercover officer then asked the applicant if he could obtain for him the drugs referred to in counts 1 and 2 on the indictment. The applicant went to the residence or place of business of people whom he knew supplied the drugs and obtained them. He then sold them to the undercover officer. For some reason, although the sales in relation to counts 1 and 2 appear to have been negotiated on the same date, the transactions in fact occurred on two separate occasions.
The applicant said in his record of interview that when the person who was later found to be an undercover officer was introduced to him, he disclosed to the undercover officer that he was a heroin user. The undercover officer asked the applicant whether he could obtain the heroin which subsequently became the drugs the subject of counts 1 and 2 on the indictment. The applicant agreed to do so and subsequently sold those drugs to the undercover officer. While the sales of those drugs occurred on the same date, the transactions took place on two separate occasions on the day in question. The applicant took the money received from the sales back to the persons who had supplied him with the drugs.
In exchange for negotiating the transactions, the applicant himself obtained drugs to support his own habit. As he told the police in the record of interview, he had a habit and this was the way in which it was supported.
As to counts 3, 4 and 5 on the indictment, basically the same thing occurred. As the learned Judge found:
"The undercover officer asked you if you could obtain those drugs for him and you agreed to do that. You went to the persons who you knew could supply it. You obtained the drugs.
On this occasion, you were in fact accompanied back to the undercover officer with one of the suppliers and the reason you gave the police for that was that your suppliers knew you were an addict and they didn't trust you with such large amounts of drugs. You gave him the drugs. You obtained the purchase moneys. Those purchase moneys were forwarded or were given to the supplier and you again received either drugs or money, in essence, to support your habit for your part in the deal.
In relation to the last count on the indictment, what you said in the record of interview is, as I have explained, that although the police officer asked you to obtain such a large amount of heroin and you did ask around and find out, try and attempt to obtain such an amount, you say you could not do so. Nobody who you knew could supply such a large amount and that is why the deal did not go through."
So far as ground (1) is concerned, I consider that having regard to the principles applicable to the sentencing of offenders involved in the distribution of significant quantities of heroin and methylamphetamine and the range of sentences ordinarily imposed for such offences, the individual sentences imposed in this case fell well within the range of a sound sentencing discretion. For those reasons, ground (1) fails.
Ground (2)
Ground (2) contended that the sentencing discretion of the learned Judge miscarried when her Honour ordered that the sentence in respect of count 5 be served cumulatively upon the sentence for the offence the subject of count 3 with the result that the total sentence was excessive.
Whether or not sentences should be served cumulatively or concurrently is a question to be resolved by the exercise of judicial discretion. The Court of Criminal Appeal will only interfere with a discretion to order that sentences be served cumulatively if the combined total of the sentences produces a result which infringes the totality principle.
Where an offender is required to be sentenced for a series of offences, the proper approach is to impose the appropriate sentence for each offence and then give consideration to the question of the application of the totality principle: Mill v R (1988) 166 CLR 59 at 63 per Wilson, Deane, Dawson, Toohey and Gaudron JJ. In Jarvis v R (1998) 20 WAR 201, the majority (Ipp and Murray JJ) held that the totality principle is applicable when a Court is required to sentence for a number of offences on different occasions. This is so whether or not there is a link between the individual offences. Their Honours also approached the matter on the basis that, even though the individual sentences may have been proportionate to the gravity of the particular offences in respect of which they were imposed, the severity of a term of imprisonment increases exponentially as it increases in length. The overriding principle is that the aggregate sentence imposed for multiple offences should fairly and justly reflect the total criminality of the offender's conduct. The object is to ensure that the total sentence properly reflects the overall criminality evinced by the separate offending but is not a crushing sentence: cfR v White [2002] WASCA 112 per McKechnie J at [26].
In the present case, the criminal conduct of the applicant involved a series of separate transactions committed on different occasions. In particular, the offences the subject of counts 3 and 4 of the indictment involving the sale of 55‑95 grams of heroin and 27.9 grams of methylamphetamine were committed on 3 April 2003. The offence constituting count 5 being the offer to sell 12 ounces of heroin was committed on 16 April 2003. These offences were separate and distinct. The transactions were for heroin and methylamphetamine and occurred nearly two weeks apart. In addition, count 5 evinced a willingness on the part of the applicant to deal in heroin on a significantly larger scale than he had done in the course of the commission of the earlier offences. In my opinion, it was open to the learned sentencing Judge to impose cumulative sentences in respect of the offences the subject of counts 3 and 5: cfSinagra‑Brisca v R [2004] WASCA 68 per Wheeler J at [29]. For these reasons, ground (2) has not been made out.
Ground (3)
Ground (3) contended that the sentencing discretion of the learned Judge miscarried when she failed to give enough weight to the fact that the sales of the prohibited drugs were to an undercover police officer. The fact is that at the time the transaction was entered into, the applicant believed that it was being made in the ordinary course of business which he had adopted. As was evidenced by the commission of the offences in this case, he was ready, willing and able to deal in methylamphetamine and heroin. The involvement of the undercover police officer was simply to detect and obtain evidence against the applicant.
The learned sentencing Judge applied the relevant principles and concluded that there was no evidence that the applicant had "in any way to be persuaded to become involved in these large deals". The fact that the applicant sold the drugs to an undercover police officer did not in these circumstances warrant a reduction of the sentence that would otherwise be appropriate: cf Tsagaris v R, unreported; CCA SCt of WA; Library No 980721; 14 December 1998; per Kennedy J. At the same time, in assessing the seriousness of the offences, her Honour took into account the fact that the applicant's involvement in supplying the larger quantities of drugs resulted from the covert officer's requests for large amounts. This was taken into account as a mitigating factor. For these reasons, I consider that there is no merit in ground (3).
Ground (4)
It was contended in relation to ground (4) that the sentence of 4 years and 4 months was manifestly excessive as there was no actual transaction rather than an offer to sell, whereas the learned Judge sentenced the applicant on the same basis as an actual sale of a prohibited drug so that the discretion miscarried. The applicant contended that the offer made went no further than to look into the possibility of obtaining the drugs which had been requested. It was contended that the applicant did not make any concrete plan or arrangements to facilitate the sale of the quantity of drugs, with the result that he was unable to acquire such a quantity because of his "lack of trust and stature in the Drug Hierarchy".
In this respect, the applicant relied on a letter from Dr George O'Neil of the Australian Medical Procedures Research Foundation to the former Commissioner of Police in which he complained on behalf of the applicant regarding "Police practices recruiting patients on the Naltrexone programme". He noted that the applicant was a 32‑year‑old Vietnamese immigrant who had lived in Australia for 21 years. Like many people in the Vietnamese community, he had been affected by heroin dependence from the age of 27 to 32 years. Dr O'Neil said in his letter:
"Nearly all of my Vietnamese patients who are committed to recovery are extremely vulnerable about the third month after treatment because of a significant trough in Naltrexone levels at this time. They are also vulnerable because their family relationships and friends allow them to give advice to any person seeking heroin as to where it can be found. The fact that they have this information does not make them dealers.
Police masquerading as sick heroin addicts needing to score, are catching out a group of my recovering patients and asking them to participate in dealing. If the Police left these patients alone during their recovery, rather than ask them favours they would avoid a trend to lead my patients back to acquiring heroin from their friends.
Thanh Le is one of the patients affected by Police behaviour, which I regard as unethical. Mr Le was making a good recovery after his Naltrexone implants [on] 11 February 2003. He was approached by a member of the Police in early April at a time when his Naltrexone levels were dropping and he was induced by Police to visit people he would not normally frequent. He was offered a large cash incentive to do so. Following police requests, he relapsed back into heroin use and I have inserted a Naltrexone Implant on 10 May 2003 to bring his Naltrexone levels back up to protective levels."
The applicant sought to rely on this letter both before the learned sentencing Judge and before this Court.
Her Honour made the following reference to the letter:
"In your case, some of the facts which he relates are simply not within his own knowledge; he is clearly relating things that have been told to him, and in some cases those facts which he relates are not consistent with the facts upon which I must sentence you and therefore I do not feel that I can place any significant weight upon his account or his opinion based on those facts. I accept that you were on the Naltrexone program at the time you committed these offences but I also accept that at that time you were already using and there was a need for you to support your habit at that time and that dealing was the day [sic way] in which you managed to do that."
Her Honour took into account the applicant's health which was described as "reasonable but you have been suffering from depression and anxiety about this sentencing process and that of course is entirely understandable". Her Honour also took into account all of the matters referred to in the pre‑sentence report. This disclosed that the applicant had two prior convictions for the possession of heroin in 2000 and convictions for burglary in 1997. The applicant had also been convicted on five previous occasions for driving without a licence. The last such occasion was on 12 April 2002 when the applicant was sentenced to suspended imprisonment for 5 months and disqualification from driving for 9 months. In this context, her Honour made it clear that the applicant did not receive credit for being of good character, given his prior criminal record, although he was given some credit for the fact that he had not been convicted of offences of this seriousness in the past.
Her Honour then referred to the statement of the approach to be taken in such cases by Ipp J in Quach v R (supra). Her Honour went on to say:
"Those principles apply generally to your position. The Court of Criminal Appeal has said in relation to methylamphetamine that it is to be regarded as falling within the same category of seriousness as heroin. It is no longer a middle range drug. Obviously, in dealing with drugs at the high end of the scale of seriousness, the major consideration for the Court is both personal and general deterrence.
You are a good example of the destructive power of these drugs. You had a business, a home and a family. You now have nothing and you are facing a substantial time in custody and no doubt your children will undoubtedly suffer as a consequence as well. In terms of the seriousness of your particular offences, I accept that you were dealing to support your own habit and that you were in essence a middle man for the dealers who were much higher up the hierarchy than you.
Your involvement was more serious than that of a mere courier because you took the order and negotiated a price as well as transporting the drugs. However, your commercial gain, as such, was limited to what you would receive to support your own habit and I note that you did not purchase the drugs yourself for on‑sale to others. The [State] alleges that you were a dealer in drugs for significant reward.
I don't believe there is evidence before me that you were going to receive significant rewards for your part in these offences. The rewards for you were significant in the sense that they were to enable you to maintain a habit which was extremely important to you. But in objective terms, it does not appear to me that there is any evidence that you were going to receive significant rewards and I decline to sentence you on that basis.
However, as I have said, I do accept that you would receive either money or drugs, either of which would be used to support your own habit and this was your reward for the offences. It is suggested by your counsel that your offences are mitigated because you were provoked into committing them by the undercover officer and I have had regard to the case of Reppucci …"
In that case, this Court considered the question whether there should be a reduction in sentence because of the element of entrapment. In R v Vuckov (1986) 40 SASR 498 at 523, Cox J said:
"There is a big difference between talking a man into a crime that left, to himself, he was unlikely to commit, and merely giving him the opportunity to do what he was already disposed to do."
In R v Reppucci (1994) 74 A Crim R 353 at p 366, reference was also made to the following passage in my judgment in Jackson v R, unreported; CCA SCt of WA; Library No 8752; 8 March 1991 at pp 16 ‑ 17 where I said:
"As to the issue of entrapment it may be accepted that 'entrapment' is a matter to be taken into account as a factor in mitigation of sentence: R v Sang [1980] AC 402 … A police trap will give rise to a case for mitigation where there is a real likelihood that the offender was encouraged or incited by police, or by a police informer acting on their behalf, to commit an offence he or she would not otherwise have committed."
I also said in Jackson at p 18:
"There is no room for mitigation of the sentence where the effect of the police trap was merely to detect and obtain evidence against an offender who was prepared to commit the offence."
Finally, I said in Jackson at 19 that:
"In the context of the heroin trade, entrapment may not result in any significant reduction of sentence, because the need for general deterrence may outweigh mitigating factors, including those personal to the offender: R v McMartin, unreported; SCt of WA (CCA 205 of 1989); Library No 8062; 13 February 1990. There is a reluctance to give any very significant weight to entrapment due to the necessity to resort to such methods to detect and obtain evidence against those involved in the trade in illegal drugs."
It was in the light of these authorities that the learned sentencing Judge said in the course of her sentencing remarks:
"Taking into account these legal principles, and I have applied them to the facts of this case, in my opinion the evidence before me does not enable me to come to the view that you were entrapped into the commission of these offences and in relation to this I have listened very carefully to your video record of interview to see – or to hear the explanation you gave for the commission of the offences. I accept that you were introduced to the undercover police officer by a friend, another user.
I accept that the undercover officer did ask you if you could supply these drugs to him and I accept that you provided the quantities requested by the officer. However, in your video record of interview you acknowledge that at the time you were a user and that you committed the offences to fund your own habit. It's also clear that you had the drug contacts necessary to enable you to fill the officer's orders for quite large quantities of drugs. So I am not satisfied that you were entrapped in relation to these offences.
It is commonsense that you needed to support your habit, which you'd fallen back into, and you were substantially unemployed and without funds to support the habit and it's clear, as I've already said, that your wife was not supporting you or your habit. I conclude that you were disposed to commit these offences and the undercover officer merely gave you the opportunity to do so. You were not provoked into committing offences which you would not otherwise have committed.
On the other hand, in assessing the seriousness of the offences I have taken into account in your favour that it was the conduct of the officer that caused you to be involved in these particular offences, involving large quantities of drugs. I am satisfied and give you the benefit of the doubt in this respect: that were it not for the conduct of the officer requesting such large amounts of drugs, that these were large amounts that you perhaps were not otherwise familiar with dealing in.
I have come to this view and given you the benefit of the doubt in relation to this because I have been through the videos, had an opportunity to assess the lifestyle that you appeared to be living at the time. As I said I think during sentencing submissions, it does not appear to be a luxurious or sophisticated lifestyle. It was not the lifestyle that may be expected of someone who is living off the proceeds of large‑scale drug deals such as these. However, as the Chief Justice has said, the credit you can get for this and other matters personal to you is limited because of the need to impose generally deterrent sentences, and also in your case personally deterrent sentences."
The learned Judge considered that these factors of mitigation were limited because there was no evidence before her that the applicant had to be persuaded in any way to become involved in the large drug deals. It was found that the applicant "freely agreed to become involved". The applicant sought out the suppliers to provide the drugs. Even in the case of the last offence where he was unable to find a supplier who had such a large amount of heroin, the applicant asked a number of people in an effort to find a supplier.
In terms of the applicant's own drug addiction, the approach taken by the learned Judge was that whilst this aroused sympathy, it did not entitle the applicant to any less punishment than an offender who was not an addict. As her Honour commented:
"As an addict you are in a position to appreciate the misery which distribution of drugs would spread within the community."
Her Honour took into account that all of the applicant's property would be confiscated as a result of his convictions, but that the credit that could be given for that was limited, as it did not seem that the applicant had any assets of value in any event.
In the context of the Misuse of Drugs Act, the maximum penalty for offering to sell a prohibited drug is the same as that for selling a prohibited drug: see ss 6(1)(c) and 34(1)(a). In sentencing the applicant in respect of count 5, the learned Judge said:
"… I have found this to be the most difficult offence to sentence you for because whilst the amount involved is extremely large, being 340 grams, nonetheless … your agreement and your offer to sell was not completed by the actual sale and supply of the drug. So in my view obviously where there had been supply count 5 would attract a very high sentence, but in my view it should not attract such a high penalty where there is not actual supply and in my view, it is to be, in some ways, equated to the same type of level of seriousness of offences being [counts] 3 and 4 on the indictment because there simply was not the supply involved. Therefore, I impose a penalty of 6½ years' imprisonment, which I discount for 30 per cent for your plea, resulting in a sentence of 4 years and 4 months' imprisonment."
It was rightly submitted on behalf of the State that the offence the subject of count 5 was a particularly serious offence. It involved the prospective sale of a very large quantity of heroin. Had the actual supply occurred, the offence would have attracted a very substantial sentence.
The sentences were backdated to commence from 15 July 2003. In my opinion, none of the individual sentences imposed was manifestly excessive. The sole question which arises on the application is whether the total of the sentences so structured offended the totality principle. In this respect, it must be recognised that in this Court it has been held that from the offender's perspective, the severity of a term of imprisonment increases exponentially as it increases in length: Jarvis v R (supra) at
[207] per Ipp J; and Herbert v R [2003] WASCA 61; (2003) 27 WAR 330 at [10] – 74] per Malcolm CJ.
In my opinion, ground (5) cannot succeed for the reasons to be published by Roberts‑Smith J. There is nothing that I could usefully add.
For these reasons, I would refuse leave to appeal.
Finally, I agree with the comments made by Roberts‑Smith J regarding the difficulties encountered by unrepresented applicants and appellants before the Court of Criminal Appeal. There is potential for the independence of the Court to be compromised by the need to prepare appeal books because of the absence of legal aid for this purpose, and the lack of any other outside assistance for the preparation of appeal books. In such cases, it is also necessary for the Court to examine the whole case to determine whether there are any and, if so, what arguable grounds of appeal which should be addressed. These are functions which should be performed by or with the assistance of the Legal Aid Commission. They should not be left to the Court.
I share the concerns of Roberts‑Smith J about the growing risk of injustice as a result of the increasing number of applicants and appellants before the Court of Criminal Appeal which, save for the very small number of cases which go on to the High Court, is for all practical purposes the Court of final appeal.
MURRAY J: I am grateful to have had access in draft to the very comprehensive reasons for decision prepared by Malcolm CJ and Roberts‑Smith J. I could usefully add nothing to their Honours' thorough treatment of the issues raised in this case.
I am also of the opinion that leave to appeal should be refused.
ROBERTS-SMITH J: This is an application for leave to appeal against sentence.
The application was heard on 1 July 2004.
The applicant appeared in person. He handed up a revised copy of the application book, including an outline of submissions, together with a one page document headed "Appellant's (sic) Response to Respondent's Outline of Submissions", but made no oral submissions. That being so, and out of deference to the practice that the State does not make submissions when an applicant appears unrepresented unless the Court
invites them, Mr Fiannaca simply relied upon what was in the State's outline of submissions.
The applicant's papers were apparently prepared by fellow non‑lawyer inmates at Acacia Prison.
The applicant appeared before Jenkins DCJ (as she then was) in the District Court at Perth on 18 July 2003 on an indictment dated 20 June 2003.
He was charged with five counts of offences contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA). Counts 1 and 2 were that he sold methylamphetamine and heroin respectively on 31 March 2003. Counts 3 and 4 were that he sold a quantity of heroin and methylamphetamine respectively, on 3 April 2003. Count 5 was that on 16 April 2003 he offered to sell a prohibited drug, namely heroin, to another.
The applicant entered a "fast‑track" plea of guilty to each of the charges. He was sentenced to 2 years 1 month imprisonment on count 1, 12 months imprisonment on count 2, 4 years and 11 months imprisonment on count 3, 4 years and 2 months imprisonment on count 4 and 4 years and 4 months imprisonment on count 5. Her Honour ordered that the sentences on counts 1 to 4 inclusive be served concurrently but that on count 5 be served cumulatively. The applicant also pleaded guilty to five offences on a notice under s 32 of the Sentencing Act, they being five counts of driving without a motor driver's licence. Her Honour imposed a sentence of 6 months imprisonment in respect of each of those but ordered they be served concurrently with each other but cumulatively on the sentence in respect of count 5. The sentences were back‑dated to 15 June 2003. Her Honour ordered the applicant be eligible for parole.
The applicant seeks leave to appeal only in respect of the sentences imposed on the drug offences, namely the aggregate of 9 years 3 months imprisonment.
The applicant's proposed grounds of appeal are:
"1.The Learned Judge's sentencing discretion miscarried when she sentenced the prisoner to a combined sentence of 9 years 3 months imprisonment, which was manifestly excessive in all of the circumstances.
2.The Learned Judge's sentencing discretion miscarried when she ordered that Count 5 be served cumulative on Count 3, which in all the circumstances makes the sentence excessive.
3.The Learned Judge's sentencing discretion miscarried when she failed to give enough weight to the fact that the sales of the prohibited drugs were to an under cover police officer.
4.The Learned Judge's sentencing discretion miscarried when she sentenced the prisoner to 4 years and 4 months in relation to count 5, which was manifestly excessive in all of the circumstances as there was no actual transaction rather than an offer to sell. The sentencing Judge's discretion miscarried when she sentenced the applicant on the same basis as an actual sale of a prohibited drug."
The applicant was represented by counsel in the District Court but the application book does not contain any transcript of what was put to her Honour, either by the Crown Prosector or by counsel for the applicant. However, her Honour's sentencing remarks were extensive and comprehensive and the circumstances are clearly set out in them.
Her Honour commenced by noting it was a fast‑track plea of guilty and the question for her in determining what credit to give for it was to what extent was the plea indicative of remorse, acceptance of responsibility and a willingness to facilitate the course of justice. A further significant consideration was whether the plea was entered at the first reasonable opportunity. The approach taken by her Honour to the appropriate discount for a plea of guilty was in accordance with authority (Cameron v R (2002) 209 CLR 339; R v Wale (2001) 126 A Crim R 370, [40]).
The learned sentencing Judge accepted the plea was made at the first reasonable opportunity and taking into account the fact the Crown case against the appellant was "very strong", she allowed a discount of 30 per cent. That allowance was appropriate. A discount for a plea of guilty would ordinarily be in the range between 25 to 35 per cent (Miles v R (1997) 17 WAR 518; Little v R [2001] WASCA 87, [13]) although where the prosecution case is strong and conviction almost inevitable, a plea of guilty will not generally be regarded as indicating remorse so much as a fatalistic recognition of the prospect of conviction (see R v Heferen (1999) 106 A Crim R 89 and McLachlan v R [1999] WASCA 255).
As her Honour noted, the offences were of a very serious kind, as was indicated by the fact that each of them carried a statutory maximum sentence of 25 years imprisonment or a fine of $100,000 or both.
The learned sentencing Judge then proceeded to recount the facts as follows:
"… on 31 March 2003 you met an undercover police officer at a private residence in Yokine and you sold 6.94 or 5 grams of methylamphetamine, commonly known as ice, to the undercover officer for the sum of $2300 and the methylamphetamine was 81 per cent pure. Later that day, in the carpark of the Inglewood aquatic centre in Dianella you sold the same undercover officer 4.7 grams of heroin for $250 and the heroin was 22 per cent pure ... those are the facts in relation to counts 1 and 2 on the indictment.
In relation to count 3 on the indictment, on 3 April 2003 you met the same undercover police officer in the carpark of the Inglewood aquatic centre and you sold the undercover officer 27.9 - sorry, these are the facts in relation to count 4 on the indictment; you sold the undercover officer 27.9 grams of methylamphetamine for $7000 and that was 83 per cent purity.
In relation to count 3 on the indictment, on the same day at the same place you sold the undercover officer 55.95 grams of heroin at 19 per cent purity. Then in relation to count 5 on the indictment, on 15 April 2003, you negotiated with the undercover officer in relation to the sale of 12 ounces, that is 340 grams of heroin, to the undercover officer.
Prices and the availability of the heroin was discussed and on 16 April you offered to sell 12 ounces of heroin to the undercover officer for $10,000 per ounce, a total of $120,000. It was also negotiated between the two of you that you wanted to be paid $2000 on top of the purchase price for the delivery and this was agreed to and the exchange of drugs and money was to occur later and the sale did not go through as planned.
The prosecution facts were that that was because you were tipped off as to the identity of the undercover officer. However, in your video record of interview, which I am going to refer to now, you said in fact that you could not obtain such a large amount of heroin at that time and that that was why the sale did not go through. As I said, because of the brevity of the prosecution facts, I will refer to your video record of interview to elaborate on the facts.
What you said in the video record of interview was that at this time when the undercover officer was introduced to you, you were a heroin user and a friend of yours introduced you to the undercover officer and the undercover officer then asked if you could obtain for him the drugs referred to in counts 1 and 2 on the indictment. You went to the either residence or place of business of people who you knew supplied such drugs.
You obtained the drugs from those people and you then sold them to the undercover officer and for some reason those sales, although they appear to have been negotiated at the same time, those sales in relation to counts 1 and 2 occurred on the same date but on two separate occasions. You provided the drugs to the undercover officer and then took the money you received from the sales back to the people who supplied you the drugs.
In exchange for that, you got some drugs to support your own habit and as you told the police in the record of interview you had a habit and you had to support it in some fashion and this was the way you were supporting it. In relation to counts 3 and 4 on the indictment, basically the same thing occurred. The undercover officer asked you if you could obtain those drugs for him and you agreed to do that. You went to the persons who you knew could supply it. You obtained the drugs.
On this occasion, you were in fact accompanied back to the undercover officer with one of the suppliers and the reason you gave the police for that was that your suppliers knew you were an addict and they didn't trust you with such large amounts of drugs. So you went and met the undercover officer. You gave him the drugs. You obtained the purchase moneys. Those purchase moneys were forwarded or were given to the supplier and you again received either drugs or money, in essence, to support your habit for your part in the deal.
In relation to the last count on the indictment, what you said in the record of interview is, as I have explained, that although the police or undercover police officer asked you to obtain such a large amount of heroin and you did ask around and find out, try and attempt to obtain such an amount, you say you could not do so. Nobody who you knew could supply such a large amount and that is why the deal did not go through.
In relation to the offences of no motor driver's licence, those five offences occurred in the course of the commission of the five counts on the indictment as you were driving to and from your supplier and the undercover agent."
The learned sentencing Judge then turned to the applicant's personal circumstances. He was 32 years of age, married and with three children, although only one lived with him and his wife. At the time of the commission of these offences he and his wife were separated, perhaps still living under the one roof, but not divorced.
Her Honour accepted that the marriage difficulties were to a substantial extent due to the applicant's drug addiction. His wife had provided a note to her Honour stating that his drug problem had been worse since he had been imprisoned in 2000 for driving offences and that he sought treatment on the naltrexone program but that had inconsistent results.
She accepted to his credit he had attempted to overcome his heroin addiction by participation in the naltrexone program.
The applicant had completed high school and had two years at university before starting his own business as a baker. The long working hours and his contact with associates who were in the drug business resulted in him using and then becoming ultimately addicted to heroin. As a consequence of that he lost his business and prior to his arrest was substantially unemployed with only occasional work as a baker.
The applicant had no assets. Prior to his arrest he was existing on sickness benefits. His wife was financially independent and it was quite clear to her Honour that the applicant's wife was at pains to keep her assets separate from him, no doubt due to her knowledge of his drug addiction and his need to finance that.
The applicant had been involved in the drug scene for about five years, initially in relation to amphetamine and then becoming addicted to heroin. Her Honour accepted that after imprisonment in 2000 he tried to stay away from drugs but had relapsed on a number of occasions. It was during a period of relapse that he committed these offences.
Referring to the pre‑sentence report, her Honour noted that the applicant did not believe that he could remain drug free unless he moved away from Perth and his old associates and that he would ultimately like to move to Victoria.
Her Honour referred to a copy of a letter from Dr O'Neil of the naltrexone program to the Commissioner of Police dated 10 May 2003 which had been provided to her. She noted Dr O'Neil made some serious allegations.
A copy of that letter was included in the application book. Dr O'Neil wrote:
"Thanh Le is a 32-year-old Vietnamese immigrant who has lived in Australia for 21 years. Like many people in the Vietnamese community he has been affected by heroin dependence from the age of 27 to 32 years.
The purpose of this letter is to complain about Police practices recruiting patients on the Naltrexone Program. Nearly all of my Vietnamese patients who are committed to recovery are extremely vulnerable about the third month after treatment because of a significant trough in Naltrexone levels at this time. They are also vulnerable because their family relationships and friends allow them to give advice to any person seeking heroin as to where it can be found. The fact that they have this information does not make them dealers.
Police masquerading as sick heroin addicts needing to score, are catching out a group of my recovering patients and asking them to participate in dealing. If the Police left these patients alone during their recovery, rather than ask them favours they would avoid a trend to lead my patients back to acquiring heroin from their friends.
Thanh Le is one of the patients affected by police behaviour, which I regard as unethical. Mr Le was making a good recovery after his Naltrexone Implants 11 February 2003. He was approached by a member of the Police in early April at a time when his Naltrexone levels were dropping and he was induced by Police to visit people he would not normally frequent. He was offered a large cash incentive to do so. Following Police requests, he relapsed back to heroin use and I have inserted a Naltrexone Implant 10 May 2003 to bring his Naltrexone levels back up to protective levels. This is one relapse among my patients that the Police will have to take full responsibility for.
Could you please issue instructions to your Police Officers to avoid offering financial incentives to patients under active treatment when they are most vulnerable? There is a significant stream of cases I could discuss with you and it would be more appropriate for Police to consider these people as trying to recover rather than dealers. I am convinced that Thanh Truc Le is attempting to recover from his lifestyle and he has returned to heroin use because of Police inducements. I believe you owe the Magistrate or Judge an appropriate apology on behalf of the Police. Certainly you should not have Police approach him in three month's time when his Naltrexone level's will have dropped again."
The learned sentencing Judge noted that some of the facts which Dr O'Neil related in the letter were simply not within his own knowledge but were obviously things which he had been told, and in some instances were not consistent with the facts upon which her Honour was obliged to sentence the applicant. Accordingly she felt she could not place any significant weight upon Dr O'Neil's account nor his opinion based on those facts. However, she accepted that the applicant was on the naltrexone program at the time he committed these offences, although she also accepted that at the time he was already using drugs and there was a need for him to support his habit at that time and that dealing in drugs was the way in which he managed to do that.
Finally, in terms of the applicant's health, her Honour noted that it was reasonable, but he had been suffering from depression and anxiety about the sentencing process, which was of course, entirely understandable.
She noted that he had some criminal record including two convictions for possessing heroin in 2000 but they were otherwise mainly driving offences, although there were burglary offences in 1997. The applicant had been convicted on five prior occasions of driving without a driver's licence, the last occasion being on 12 April 2002 when he received 5 months imprisonment suspended. Overall in general terms, she said the applicant would not receive credit for being of good character given his prior criminal record, although she did give him some credit for never having been convicted of offences of this seriousness in the past.
Against that background of matters personal to the applicant, her Honour turned to the relevant sentencing principles.
She referred to Quach v R [1999] WASCA 210 and quoted the following passage from the judgment of Ipp J (with whom Wallwork and White JJ agreed) at [13]:
"The prevalence and seriousness of criminal heroin use make deterrence the principal consideration in sentencing for heroin related offences. The terrible consequences to the community of trafficking in this drug are notorious. Where an offender consciously and deliberately, knowing full well what harm will be done thereby, participates (no matter in what capacity) in the heroin trade for commercial gain, it is ordinarily futile to argue that personal circumstances and antecedents have significant mitigatory force. See, for example Darwell v The Queen (1997) 94 A Crim R 35, Heryadi v The Queen (1998) 98 A Crim R 578, and Musarri v R, unreported; CCA SCt of WA; Library No 980662; 17 November 1998."
The learned sentencing Judge said those principles applied generally to the applicant. It was plainly open to her to take that view.
She then observed that this Court had said in relation to methylamphetamine that it is to be regarded as falling within the same category of seriousness as heroin and that in dealing with drugs at the high end of the scale of seriousness, the major consideration for a sentencing court is both personal and general deterrence. Again, these observations were apt.
Her Honour said the applicant was a good example of the destructive power of these drugs. He had a business, a home and a family but now had nothing and was facing a substantial time in custody and no doubt his children would undoubtedly suffer as a consequence as well. So far as the offences themselves were concerned, she accepted that the applicant was dealing to support his own habit and was in essence a middle‑man for dealers who were much higher up the hierarchy. However, his involvement was more serious than that of a mere courier, because he took the order and negotiated a price as well as transporting the drugs. Nonetheless, his commercial gain as such, was limited to what he would receive to support his own drug habit and she noted that he did not purchase the drugs himself for on‑sale to others.
Her Honour noted that the Crown alleged the applicant was a dealer in drugs for significant reward, but she did not accept there was evidence before her that that he was going to receive significant rewards for his part in these offences. The rewards were significant in the sense they were to enable him to maintain a habit which was extremely important to him, but in objective terms it did not appear that there was any evidence he was going to receive significant rewards otherwise and she declined to sentence him on that basis.
She then adverted to the submission by counsel for the applicant that his offences were mitigated because he had been provoked into committing them by the undercover police officer. In that regard she referred to various passages from the judgment of Malcolm CJ in R v Reppucci (1994) 74 A Crim R 353 at 366‑367. It is convenient to set out those passages in full at this point:
"As Cox J said in Vuckov and Romeo (1986) 40 SASR 498 at 523; 22 A Crim R 10 at 31-32:
'There is a big difference between talking a man into a crime that left to himself he was unlikely to commit and merely giving him the opportunity to do what he was already disposed to do.'
In Sloane (1990) 49 A Crim R 270 at 272-273, Gleeson CJ said:
'. . . whatever its precise legal effect may be, the concept of entrapment involves as a necessary element the idea that an accused person has been induced to commit a crime which he or she would otherwise have not committed or would have been unlikely to commit: see, for example, Police v Lavalle [1979] 1 NZLR 45. In the context of an ongoing course of criminal activity, such as dealing in drugs, the reference to committing a crime which otherwise would not have been committed is a reference to a form of conduct rather than to a particular transaction. Obviously the respondent and Rice would not have been involved in the supply of cocaine to Harris if Harris had never come on to the scene. A common method of establishing that a person is carrying on an activity of selling goods of a particular kind is to buy some of the goods in question from that person. The specific sale would never have taken place but for the activity of the relevant police officer or informer, but that is not sufficient to constitute a case of entrapment. To use the language of an American case on the subject, "a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal": Sherman v United States 356 US 369 at 372-373 (1958).'
In Jackson (unreported, Court of Criminal Appeal, WA, Library No 8752, 8 March 1991), I said (at pp 16-17):
'As to the issue of entrapment it may be accepted that "entrapment" is a matter to be taken into account as a factor in mitigation of sentence: Sang [1980] AC 402; (1979) 69 Cr App R 282. There is, of course, no separate defence of entrapment at common law: Papoulias [1988] VR 858 at 862-863; (1987) 31 A Crim R 322 at 326-327. A police trap will give rise to a case for mitigation where there is a real likelihood that the offender was encouraged or incited by police, or by a police informer acting on their behalf, to commit an offence he or she would not have otherwise committed.'
I also said in that case (at p 18):
'There is no room for mitigation of the sentence where the effect of the police trap was merely to detect and obtain evidence against an offender who was prepared to commit the offence: Mandica (1980) 24 SASR 394; 4 A Crim R 34.'
This particular passage was cited with approval by Seaman J in Doyle (at pp 10-11). In another passage in Jackson (at p 19) I said:
'In the context of the heroin trade, entrapment may not result in any significant reduction of sentence, because the need for general deterrence may outweigh mitigating factors, including those personal to the offender: McMartin (unreported, Court of Criminal Appeal, WA, No 205 of 1989, Library No 8062, 13 February 1990). There is a reluctance to give any very significant weight to entrapment due to the necessity to resort to such methods to detect and obtain evidence against those involved in the trade in illegal drugs: cf Romeo (1987) 45 SASR 212; 32 A Crim R 74; Lainas (1989) 50 SASR 461; 41 A Crim R 119; Kingswell [1984] 3 NSWLR 273; (1984) 14 A Crim R 211 and Tait and Bartley.'
On re-reading that passage I can see that my reference to 'entrapment' could be misunderstood, given the distinction made in Romeo between acceptable and unacceptable 'entrapment': see, for example, the judgment of White J (at 223-224; 85-86) and Johnston J (at 238-239; 100-101). What I had in mind in referring to 'entrapment' in that particular passage in Jackson was that the mere use of an informer and a police trap arranged as a result of information received by police, and in circumstances not amounting to incitement or encouragement to commit an offence which would not otherwise have been committed, would not give rise to any mitigation: cf Mandica (at 403-404; 42-43) per King CJ. It is clear from that case and from Romeo, that where there is some degree of incitement or encouragement falling short of entrapment in its technical sense, there may be room for a discount of the sentence, even though the circumstances were not such as to warrant a stay of proceedings or exclusion of the relevant evidence."
Her Honour said that taking these legal principles into account as applying to the facts of the case, the evidence did not enable her to come to the view that the applicant was entrapped into the commission of these offences. She said she had paid careful attention to what the applicant had said in his video record of interview with the police. She accepted that he was introduced to the undercover police officer by a friend who was another user and that the undercover officer did ask him if he could supply drugs. She accepted that he provided the quantities requested by the officer. However, she noted that in his video record of interview the applicant acknowledged that at the time he was a user and that he committed the offences to fund his own habit. It was also clear that he had the drug contacts necessary to enable him to fill the officer's orders for quite large quantities of drugs.
She said it was commonsense that the applicant needed to support his habit back into which he had fallen and that he was substantially employed and without funds to do so and his wife was not supporting either him or his habit. She concluded that he was disposed to commit the offences and the undercover officer merely gave him the opportunity to do so. He was not provoked into committing offences which he would not otherwise have committed.
Be that as it may, her Honour went on to say that in assessing the seriousness of the offences she had taken into account in the applicant's favour that it was the conduct of the officer that caused him to be involved in these particular offences, involving large quantities of drugs. She was satisfied and gave the applicant the benefit of the doubt in respect of the fact that were it not for the conduct of the officer requesting such large amounts of drugs, they were larger amounts than he was otherwise familiar with dealing in. From her observations of the material before her, the learned sentencing Judge was of the view that the applicant did not appear to have a luxurious or sophisticated lifestyle, and certainly not one that might be expected of someone living off the proceeds of large‑scale drug deals such as these. Nonetheless, she concluded that the credit he could get for that and the other matters personal to him was limited because of the need to impose sentences which would operate as a personal deterrent to him and generally. Her Honour added:
"It is also limited because there is no evidence before me that you had in any way to be persuaded to become involved in these large deals. You were asked and you freely agreed to become involved. You sought out the suppliers to provide the drugs and even in the case of the last offence where you say you were unable to find a supplier who had possession of such a large amount you nonetheless asked around, it appears, from a number of people to see if you could find a supplier."
The first two grounds of appeal may be dealt with together. They both complain the sentence of 9 years 3 months imprisonment was manifestly excessive. They do not assert any identifiable error of principle or fact, but in effect assert there must have been error because the sentence was manifestly excessive.
As long ago as 1996 this Court said that sentences of imprisonment for offences involving the distribution of methylamphetamine should be "firmed up" because of the need for general deterrence which the level of sentences up to that time had apparently not met.
In R v Bellissimo (1996) 84 A Crim R 465 the applicant was convicted after trial of one count of possessing 20.8 grams of methylamphetamine of 6 per cent purity with intent to sell or supply. He was sentenced to imprisonment for 5 years 10 months without eligibility for parole. His application for leave to appeal against sentence was refused.
The 36 year old applicant was himself a drug addict with a bad record of drug and other offences. Senior counsel for the applicant accepted that this Court had acknowledged that whilst in the past amphetamines had been regarded as a middle of the range drug, it was now accepted that it should be placed in the category of a high range equating to that of heroin or cocaine.
Rowland J (with whom Ipp J agreed) noted that the issue of categorising amphetamines in the hierarchy of drug offences had then recently been canvassed in the District Court by Hammond DCJ, whose findings (having heard expert evidence) were that:
"… amphetamine based drugs were not as addictive as heroin, but the euphoric state engendered by the former is an enticement for its continued use. Perhaps more importantly, he found that the use of amphetamines creates a state in the user which, because of its effect, is more likely to result in harm or injury to others rather than to the user. It is now notorious that the use of amphetamines by young people is growing, with the usual consequence of resultant criminal conduct, often of a serious nature: see for example, Pryor (unreported, Court of Criminal Appeal, WA, 12 December 1995)."
Later, Rowland J observed (at 469):
"The statistics produced to, and accepted by, Hammond CJDC in Calder show that the amount of amphetamines seized, and the number of persons charged with offences in some way related to the use and supply of amphetamines, has increased dramatically. Amphetamines seized annually went from 43 g in 1984‑1985 to 14.7 kg in 1993‑1994, and the number of persons charged in each year during that period went from 11 to 816. The effect on the young is noted by his Honour, and it can be seen dramatically almost every day in the courts and in the media. Those mature adults involved in the supply cannot be unaware of the effects that this drug has, and all, and especially those who are involved solely for the money, must be aware of the public concern that this type of activity continues. The courts must give effect to a genuine public concern. Matters personal to an offender will often, in these cases, play a secondary role in the sentencing process. Questions of general deterrence will play a greater role."
On the same point, Anderson J said (at 471):
"Amphetamine trafficking is now recognised by the court to be in the higher range of seriousness in the scale of drug trafficking offences. As a result of this, reference to earlier sentencing decisions is no longer a safe guide to the level of sentencing for current cases.
The major sentencing considerations for offences of trafficking in dangerous drugs of addiction such as amphetamines, cocaine and heroin are general and personal deterrence, the major objective being to stop people doing it. It is quite obvious to anyone concerned with criminal justice administration that trafficking in amphetamines is rife in this State and part of its tragedy is that very young people in the community are being exposed to it. This has caused wide‑spread community concern. The sentences that have been imposed in the past do not seem to have worked as a deterrent. The sentences that have been imposed on this applicant in the past for drug trafficking offences have certainly not worked to deter him. For all these reasons the sentencing Judge was quite justified in imposing a stiff sentence in this case and I think it is impossible to say that six years was beyond the range of a sound discretionary judgment. Bad features of the case include the quantity of drug involved (20.8 g of 6 per cent purity) and the fact that the applicant had involved a female co‑offender only 20 years of age in the offence. This co‑offender was under the applicant's influence and was an addict."
The first question is whether the individual sentences were appropriate to the individual offences. In examining this question, I put to one side for the moment the consideration that the offences involved the activity of an undercover police officer, as I shall deal with that circumstance in relation to grounds 3 and 4.
A brief survey of some of the decisions of this Court since Bellissimo relating to sentences for selling or possessing methylamphetamine or heroin with intent to sell or supply, shows sentences ranging from 12 months to 10 years imprisonment.
In Korculanic v R, unreported; CCA SCt of WA; Library No 980437; 16 July 1998, a sentence of 18 months imprisonment for one count of possessing heroin with intent to sell or supply was reduced on appeal to 12 months imprisonment. The applicant was 25 years of age. He was found by police to be in possession of five folds of heroin. They had been purchased for $50 each. Three folds were to be sold to a friend for $50 each. The other two folds were for the applicant's own use. The total weight of the heroin was 0.3 gram. The applicant told police he had been selling heroin off and on for about 6 months to support his own habit. At the time of the offence the applicant had been using drugs for some 12 years. He had been trying to "come off heroin" for some time and had been undergoing counselling. His parents were very supportive of him. His father was a roof tiler and was prepared to employ him. He had a history of offending and breaches of community orders, although he had successfully completed one. Although he seemed more motivated than before in dealing with his drug problem, his progress was slow.
It was held that the learned sentencing Judge, having considered the possibility of a community based order, could not be said to have erred by declining to make one. However, the sentence of 18 months imprisonment was manifestly excessive, having regard to the circumstances under which the supply was to be undertaken. The applicant was acting as agent for a friend to acquire the heroin on the basis that he would be reimbursed for the cost. He was not a dealer in the relevant sense, nor was he in relation to the transactions the subject of the offence for which he was to be sentenced, involved in a transaction for the purpose of feeding his own habit.
It may be noted that those circumstances distinguish that case from the present.
In Tsagaris v R, unreported; CCA SCt of WA; Library No 980721; 14 December 1998, the applicant had pleaded guilty to one count on an indictment but was convicted of a further five counts after trial. One count was of possessing heroin with intent to sell or supply; the remainder were of selling heroin to another or offering to do so.
The applicant was sentenced to 4 years imprisonment on count 1, 10 years imprisonment on each of counts 2, 3 and 6, and 8 years imprisonment on each of counts 4 and 5. The sentences were structured to produce an aggregate term of 14 years imprisonment. He appealed against both conviction and sentence.
The primary evidence of the prosecution was from an undercover police officer to whom the applicant had sold, or offered to sell the drugs. It was submitted that the applicant was effectively a first offender who had possession of half a kilogram of heroin which he was attempting to sell to the undercover officer. The heroin concerned in the transactions involving the applicant was between 28 and 55 per cent pure.
The appeals against both conviction and sentence were dismissed.
Leonard v R, unreported; CCA SCt of WA; Library No 990152; 29 March 1999 concerned an application for leave to appeal against a sentence of 5 years imprisonment imposed in respect of one count of selling or supplying 22.4 grams of 8.5 per cent pure methylamphetamine. The sale was to undercover police officers who had gone to some pains to ingratiate themselves with the applicant. One submission advanced by counsel on the appeal was that because the undercover officer had invited or encouraged the commission of the offence it was inappropriate for the sentencing Judge to have imposed a sentence by way of general deterrence.
Heenan J (with whom Pidgeon and Anderson JJ agreed) held there was no substance to that submission. It was not a case of talking men into a crime which, if left to themselves, they were unlikely to commit; it was rather a case of merely giving them the opportunity to do what they were already disposed to do. His Honour referred to Cox J in R v Vuckov (1986) 40 SASR 498 at 523.
Although there was no evidence before the sentencing Judge tending to show that either of the offenders had received money from the transaction, their only profit was a small portion of the drug for their own use, Heenan J said it had to be kept in mind that the vice at which the drug laws primarily are directed is the supply of dangerous drugs to others; trafficking in any substantial degree is a grave offence. The gaining of profit simply makes it worse.
Application for leave to appeal was refused.
In R v Chick (2000) 114 A Crim R 417, the applicant was convicted after trial of 10 offences of possessing drugs with intent. Individual counts related to possession of cannabis, LSD, methylamphetamine, ephedrine and amphetamines. Sentences of 7 years imprisonment had been imposed in respect of each of two counts of possessing methylamphetamine, namely 106.75 grams and 181 grams respectively. All the sentences imposed added up to 23 years 9 months imprisonment, but the sentencing Judge structured them to produce an aggregate of 11 years having regard to the totality principle. In upholding the total effective sentence and dismissing the appeal, Anderson J (with whom Pidgeon and Wallwork JJ agreed) expressly said that each of the individual sentences was of an appropriate length.
An aggregate sentence of 6 years imprisonment for two counts of selling heroin and one count of possessing heroin with intent was upheld in Koushappis v R [2001] WASCA 18. (I note the headnote indicates the sentence was reduced to 4‑1/2 years imprisonment, but that is incorrect).
The first count involved 0.04 grams of heroin at 56 per cent purity and the second count involved 0.05 grams of heroin at 53 per cent purity. From those sales the applicant received $300. They were made to an undercover police officer at the applicant's home. The third count arose out of a search of his home in the course of which he was found endeavouring to flush down the toilet 23 folds of heroin. An amount of $3,635 was found on the premises, together with many small plastic "deal" bags. Both the quantity and purity of the heroin involved in count 3 were unascertainable because the contents of the folds had been contaminated by water.
The applicant was 48 years of age at the time of his sentencing and had a young son living with him when the offences were committed. He was not in employment but was receiving a supporting parent's allowance. He had an extremely bad record, which included a conviction for rape in 1981, convictions for possessing heroin with intent to sell or supply and for selling or supplying heroin. He also had a conviction for possessing amphetamine with intent to sell or supply it and a substantial number of other convictions.
Kennedy J (with whom Pidgeon J agreed) said (at [14]):
"The applicant deliberately participated in the heroin trade purely for personal commercial gain. He must have appreciated the harmful consequences which would inevitably proceed from his actions. It remains necessary for the courts to make it absolutely clear that those who trade in illegal drugs which have such a terrible impact upon the lives of so many members of this community can expect to receive very substantial sentences. Although, in my opinion, the sentences imposed by the learned sentencing Judge were severe, and at the very top of the appropriate range of sentences, they are not such as to justify this Court's interference on the ground of appealable error. The observations of the High Court in Lowndes v The Queen (1999) 195 CLR 665, at 671 - 672, are applicable. Accordingly, while I would grant the applicant leave to appeal against his sentences, I would dismiss his appeal."
R v Gurka (2001) 120 A Crim R 407, was another case in which drug offences were committed by an offender following an approach by an undercover police officer. There the applicant pleaded guilty to two charges of selling heroin and one of possessing heroin with intent to sell or supply. The first sale was of 6.93 grams at 48 per cent purity for which $2,400 was paid, the second was of 3.3 grams at 40 per cent purity for which $1,300 was paid and for the attempted third sale, $10,000 was to have been paid for 27.6 grams at 74 per cent purity. The applicant was sentenced to 3 years imprisonment on the first and second charges and 5 years imprisonment on the third. The last term was made cumulative on one of the 3 year terms, making an aggregate of 8 years imprisonment. The applicant was a drug addict and although he had received some money from the sales, that had been used to support his own addiction.
Leave to appeal was refused. Wallwork J (with whom Steytler J and Grove AJ agreed), having referred to what Malcolm CJ had said in Reppucci, (supra), about the role of police undercover operatives, noted that one of the explanations given by the applicant for his involvement in the offences was that he thought he could "… make money easier than working …". His Honour concluded (at [40]) that he was not persuaded that in all the circumstances the eight year aggregate sentence was too severe. This is because the applicant willingly took part in the heroin trade. He committed three very serious offences for money, knowing full well what he was doing. As stated above, he said it was "easier than working".
On the role of the undercover officer, Steytler J said (at [47] – [48]):
"47There is no doubt that where a person is encouraged by an agent provocateur to offend this might be taken into account in mitigation of sentence. That is because the person might not, were it not for the encouragement, have offended. That, no doubt, is why Kirby P (as his Honour then was), drew a distinction, Rahme (1991) 53 A Crim R 8 at 13, between the legitimate use of undercover agents to penetrate the illegal market in prohibited drugs, on the one hand, and the use of such agents to provoke an offender into committing offences that would not otherwise have been committed, on the other.
48However this was a case in which there was no encouragement or incitement to commit the offences. All that happened was that the undercover agent provided the applicant with an opportunity to commit offences which he was anyway disposed to commit. As Wallwork J has pointed out, the applicant said, very frankly, that he thought that he could by means of drug dealing 'make money easier than working'."
In Vogel v R [2002] WASCA 261 a sentence of 3 years imprisonment with eligibility for parole was upheld in respect of one count of possession of methylamphetamine with intent to sell or supply. The applicant had two packets of white powder, one containing 3.8 grams of methylamphetamine of 11 per cent purity and the other containing 2.86 grams of 37 per cent purity. As Wheeler J observed, the evidence at trial was to the effect that "street level" amphetamine was generally of the order of 5 per cent purity or less, although it could be more, but ordinarily not over 10 per cent. The 11 per cent purity was therefore somewhat over the level that would be expected in amphetamines which had been bought by a casual user at the lowest level of distribution. The 37 per cent purity amphetamine was described as "very, very rare at street level". It appeared from the remarks of the sentencing Judge that he found the applicant was a dealer in the drug who was either himself proposing to dilute it for distribution to a number of persons, or was proposing to pass those packages to some other person for further dilution and distribution. Wheeler J (with whom Murray J and Burchett AUJ agreed) said that finding was one which was clearly open. Although there were significant personal factors in the applicant's favour (he was of previous good character, was employed, had favourable references, had no significant criminal history and was a relatively young man) all of those factors were taken into account in the imposition of the sentence of 3 years imprisonment. The application for leave to appeal against sentence was dismissed.
Where sentences are imposed for a number of offences, it is important that the sentence in respect of each offence is appropriate to that offence (Pearce v R (1998) 194 CLR 610, per McHugh, Hayne and Callinan JJ at [45] - [48]). The issue of totality is best accommodated by ordering, pursuant to s 88 of the Sentencing Act, the individual sentences be served concurrently, cumulatively or partly concurrently. Prior to August 2003 it was not possible to order a term of imprisonment to be served partly concurrently with another (R v Mickelberg (1984) 13 A Crim R 365; Mill v R (1988) 166 CLR 59). However s 88 was amended with effect from 31 August 2003 specifically to permit that. But her Honour did not find it necessary to take that approach. She achieved the aggregate term of imprisonment she thought appropriate simply by structuring the sentences concurrently and cumulatively. That approach was in accord with authority (see Johnson v R (2002) 26 WAR 336 per Malcolm CJ at 344 [25]).
In considering the issue of totality there will be two questions - first, whether the aggregate sentence reflects and is proportionate to the total criminality involved and secondly, whether the total effect of the sentences is crushing.
As McHugh J said in Postiglione v R (1997) 189 CLR 295 at 307:
"The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved."
His Honour referred to the remarks of King CJ in R v Rossi (1988) 142 LSJS 451:
"There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentence is merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect."
His Honour further observed that in order to comply with the totality principle, a sentencing Judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which he or she is currently serving a sentence.
In Pieri v R [2001] WASCA 357 I examined the principles relating to the imposition of concurrent or cumulative sentences. I set out below what I said there (at [14] - [16]):
"14Where a number of offences arise out of the same transaction the sentences imposed should usually be made concurrent (Ruane v The Queen (1979) 1 A Crim R 284). However, the fact that a number of offences are committed soon after one another in time does not make them part of the one transaction in the sense in which that expression is used in this context (Coyne v The Queen, unreported; SCt of WA; No 2325 of 1978), although there is a practice of often treating a succession of crimes, each being the commission of the same or closely related offences, committed within a short space of time, as appropriate for concurrent sentences (Esteban v Wolpers, unreported; SCt of WA; 7376 of 1988; 16 November 1988).
15A number of authorities were usefully collected by White J in Ugle v Wells (1999) 106 A Crim R 452. That included Esteban, in which Nicholson J referred to Brown (1982) 5 A Crim R 404, 407 and Attorney-General (SA) v Tichy (1982) 30 SASR 84 in which Wells J pointed out (at 92 - 93) that sometimes a number of acts by an offender can be technically identifiable as specific separate offences but yet comprise a single multi-faceted course of criminal conduct; conversely those separate acts may comprise two or more courses of criminal conduct that may properly be characterised as separate invasions of the community's right to peace and order. In the former situation concurrent sentences will usually be just and convenient; in the latter situation cumulative sentences will generally be appropriate.
16In Ugle v Wells, White J also set out the following passage from R v Legg, unreported; CCA SCt of WA; Library No 980305; 9 April 1998 at 21 - 23:
'As to when it is proper to make an order for cumulative service of a sentence, courts in this jurisdiction have always been guided by the general rule which is sometimes referred to as the "one transaction" principle. The nature of the rule was clearly stated by Wallace J in Ruane v R (1979) 1 A Crim R 284 at 286 where his Honour said:
"Whilst it is true that where several offences are tried together and arise out of what one may call the same transaction, it is a good working rule that the sentences imposed for those offences should be made concurrent, the reason therefore is that if a man is charged with several serious offences arising out of the same situation and consecutive sentences are imposed, the total very often proves to be much too great for the incident in question. That is only an ordinary working rule; ..."
His Honour relied upon the decision of the English Court of Appeal in Kastercum v R (1972) 56 Cr App R 298. The judgments of Jones and Brinsden JJ in Ruane were to the same effect.
In Shaw (1989) 39 A Crim R 343, the judgments of Brinsden and Rowland JJ, with whom Malcolm CJ agreed, refer to the general principle and Ruane was followed. At 347, referring to the text by Thomas, Principles of Sentencing (1st ed, 1970), Brinsden J said that:
"... the fact that two offences occur close together in time does not necessarily mean they will be treated as part of the one incident, 'if they are essentially different in character and involved different subject matter'. At p53 by the same author, it is stated 'where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive'. That is because the offences, when taken together, constitute a single invasion of the same legally protected interest. But the fact that offences are committed simultaneously, or close together in time, does not necessarily mean they amount to a single transaction".'"
In this case her Honour had regard to the question whether the previous offences arose out of the same set of facts or one transaction, so as to properly call for concurrent sentences, or whether they disclosed entirely distinct conduct which should attract separate and therefore cumulative punishment. That was the basis upon which she ordered the sentences on counts 1 and 2 and counts 3 and 4 respectively, should be served concurrently. The applicant does not complain about that. His complaint is that she ordered the sentence on count 5 to be served cumulatively with that on count 3.
It is at this point that what appears from the transcript is not entirely clear. Her Honour said that "… the other offences on the indictment" were discrete criminal offences and normally should be ordered to be served cumulatively. That, she said, would result in a total sentence for the indictable offences of "somewhere close to 12 years", which she thought was inappropriately long having regard to the course of the applicant's criminal conduct viewed as a whole.
Her Honour's statement of the principle was correct, as can be seen from the authorities to which I have referred above. However, there were not "other offences" on the indictment; there was only count 5. On a closer consideration of what her Honour said, it becomes apparent she was referring to the offences committed on 31 March 2003 and 3 April 2003 as being discrete transgressions of the criminal law which would ordinarily call for cumulative sentences. Had that been done, the aggregate sentence would have been 11 years 4 months. It was then by the application of the principle of totality that she reduced the aggregate term to 9 years 3 months, which she thought did reflect the criminality involved in the commission of the offences overall.
This ground of appeal does not assert that her Honour erred in holding the offence of 16 April 2003 was a discrete transgression of the criminal law which would ordinary attract a cumulative sentence. Clearly it was. The assertion that by ordering it to be served cumulatively, her Honour imposed an "excessive" (sic: manifestly excessive) sentence is a complaint that the aggregate sentence breached the principle of totality. That comes down to the two questions to which I adverted above, namely, whether it was disproportionate to the applicant's overall criminality or was a "crushing" sentence calling for a merciful reduction. In my view it cannot be said that in all the circumstances the aggregate sentence was either disproportionate or crushing. This ground has not been made out.
Ground 3 complains that her Honour's sentencing discretion miscarried when she failed to give enough weight to the fact that the sales of the prohibited drugs were to an undercover police officer.
It is necessary to start from an appreciation that her Honour gave specific and detailed consideration to the fact that the sales were made to an undercover police officer.
As the authorities make clear, the mere fact that an offence is committed by the sale of prohibited drugs to an undercover police officer, is no mitigation in itself. It is only where there is a real likelihood the offender was encouraged or incited by police to commit an offence of a kind he or she would not otherwise have committed, that "entrapment" can have any mitigatory effect. As Malcolm CJ observed in Jackson v R, unreported; CCA SCt of WA; Library No 8752; 8 March 1991 at 18:
"There is no room for mitigation of the sentence where the effect of the police trap was merely to detect and obtain evidence against an offender who was prepared to commit the offence …"
The principles are extensively set out in Reppucci (supra) to which I have already referred. The learned sentencing Judge expressly took those principles as articulated in Reppucci into account.
Her Honour expressly found the applicant was a drug user at the time, that he had no funds to support his habit, that having the criminal contacts necessary to enable him to fill the undercover officer's orders for quite large quantities of drugs, he committed the offences to fund his own habit. She found the applicant was disposed to commit the offences and that the undercover officer did not provoke him into committing the offences he would not otherwise have committed, but merely gave him the opportunity to do so. Her Honour found that when asked, the applicant freely agreed to become involved and sought out suppliers to provide the drugs. Even though the amount involved in count 5 was a particularly large amount and the applicant was unable to find a supplier who could provide it, he nonetheless tried to find one.
None of these findings are challenged and they were open to her Honour on the material before her. For example, I note that the author of the pre‑sentence report wrote (p 3):
"Mr Le stated that following his short prison sentence in 2000 he made great efforts to stay away from his former drug‑taking circle of associates. However, he experienced a relapse about twelve months ago and has admitted that his drug‑taking reverted to its former level. With regard to his involvement in selling and supplying drugs, he fully understands that this activity is regarded with the utmost gravity by the Court. His only explanation is that he needed money and he resorted to 'old networks' as an easy measure of obtaining funds." (My emphasis.)
Even so, it is apparent her Honour did allow some mitigation of the applicant from the circumstances in which he came to commit the offences. She regarded the offences as less serious than they otherwise would have been because it was the conduct of the officer which caused the applicant to commit offences involving the particular quantities of drugs which were involved and that had it not been for the officer requesting such large amounts of drugs, they were amounts the applicant perhaps was not otherwise familiar with dealing in.
The manner in, and extent to, which her Honour made allowance for these factors was consistent with authority and does not reveal error.
The circumstance that the offences were committed in response to an approach by an undercover officer was relied upon in the applicant's written submissions as calling for sentences which ought to have been made entirely concurrent. The argument was that all the offences arose out of an initial approach by the officer and so should be viewed in their entirety. I take that to mean they should be viewed as essentially one transaction.
Her Honour really dealt with that, and it was reasoning of that kind which led her to regard it as appropriate to make the sentences on counts 1 and 2, and counts 3 and 4, respectively, concurrent. The fact that the orders for the drugs referred to in counts 1 and 2 were placed at the same time by the same officer, made it appropriate to view them as different offences constituting one transaction. The same applied to counts 3 and 4. The offence on 16 April 2003 was a separate offence and was a separate transaction on a different date some two weeks later. True it was that the offence in count 5 was committed in the course of the applicant's dealing with the same undercover officer, but it was a separate and otherwise unrelated infringement of the law and the community interest, involving a separate supply of a prohibited drug.
The applicant's outline of submissions included the following paragraphs:
"The Learned Sentencing Judge erred in not giving sufficient weight to a letter from Dr. George O'Neill who is well respected and extremely knowledgeable in the field of drug rehabilitation. In Dr. O'Neill's letter to the Police Commissioner, Mr. Mathews, he makes it quite clear that the police behaviour in luring the appellant, (who was at the time prior to arrest, and upon arrest at a very vulnerable stage of his recovery from narcotic addiction) – was to say at the least, 'HIGHLY UNETHICAL.'
3.The General Public regard the main task of the Police to PREVENT the commission of criminal offences; this being the case, why was the appellant NOT arrested after he committed the first offence, which was the lesser of the indictable offences – as he had then been identified.
4.Instead, the undercover police officer proceeded to ask for more and ever larger quantities of illicit drugs, further enticing the appellant to commit much more serious offences with little or no regard for the struggle the appellant was waging in his battle against long term narcotics addiction."
Although it was open to her Honour to receive that letter for sentencing purposes (s 15 of the Sentencing Act) the contents of it were not sworn to and had not been tested in cross‑examination. Also, her Honour was quite correct to say that some matters of fact were simply not within Dr O'Neill's personal knowledge and must have been told to him by someone else and that other "facts" he asserted were inconsistent with other material before her upon which she had to sentence the applicant. In those circumstances the learned sentencing Judge quite rightly said she could not place any significant weight upon the account given by Dr O'Neill, nor his opinion based upon it.
It follows from her Honour's findings, that the undercover officer did not "lure" the applicant back into the drug scene, as Dr O'Neill alleged, nor into committing offences of a kind he was not already disposed to commit to maintain his own supply of drugs. As I have said, and as her Honour found, the officer merely presented him with an opportunity to do so – an opportunity which he freely and deliberately seized upon and (in respect of the first four counts) he was able to and did fulfil.
The point about the police allowing an escalating series of offences involving the use of an undercover officer to be committed was raised in Gyurka (supra), as to which Steytler J said (at 414 [49 – 50]):
"49Here, of course, the undercover agent was used on three separate occasions in circumstances in which the applicant could have been arrested after the first of them, which involved the sale of only 6.93 g of heroin. Instead, two further sales to the undercover agent were facilitated on 2 March 2000, the first of them involving 3.35 g and the second involving the considerably larger amount of 27.79 g. However in neither case was there any incitement or encouragement of the applicant to 'extend the criminality in which otherwise he … may not have engaged' (per Kirby P in Rahme, at 13). He was merely doing what he had anyway decided to do. While I would not wish to be taken to be encouraging undercover police operatives to facilitate the commission of an endless number of offences in order to push up the total sentence which might consequently be imposed upon the offender (a practice which would, self‑evidently, be inappropriate), it does not seem to me to have been unreasonable, in this case, for the police operative to have given to the applicant the opportunity (which he was only too anxious to take) to make more than one sale. By this means it could be demonstrated that the first offence was not merely an isolated incident and also, as regards the third transaction, that the applicant was prepared to sell a relatively large quantity of heroin. As soon as these things were established, the applicant was arrested and charged.
50In all of these circumstances, it seems to me, there was no basis for leniency merely as a consequence of the fact that each of the sales was to an undercover police operative."
Those observations seem to me, with respect, to be just as apposite in this case.
I turn to ground 5. The ground complains the sentence of 4 years 4 months imprisonment was manifestly excessive because there was no actual transaction, rather than an offer to sell and because the learned sentencing Judge sentenced the applicant on the same basis as an actual sale.
This ground cannot succeed. What is asserted is simply not correct. Her Honour clearly appreciated the applicant's offer to sell the drug was not completed by the actual sale and supply of it. She said so (TS28) and she pointed out that given the extremely large quantity (340 grams), had there actually been a supply the offence would have attracted "a very high" sentence. It was because there had not been any actual supply that she said it should be equated to the same level of seriousness of the offences in counts 3 and 4. Given that under s 6(1)(c) of the Misuse of Drugs Act the statutory maximum penalty of 25 years imprisonment or a fine of $100,000 or both applies to both offences of selling and offering for sale, her Honour's approach was not inappropriate.
I would refuse the application for leave to appeal.
Before leaving this appeal there is one aspect of the proceedings to which I should refer. That is the fact that the applicant was unrepresented and the difficulties confronting him and, as a consequence, this Court.
As I mentioned at the outset, at the hearing of the application the applicant handed up a new application book. He had not been able to prepare it before then and as a result neither the respondent nor the Court had seen it. There was some additional material in it which had not previously been provided. However the application book was deficient at least insofar as it did not contain the transcript of what it had been put to the learned sentencing Judge by counsel.
As the Court had not at that stage received an application book from the applicant, arrangements were made in mid‑June 2004 for Court staff to collate the documentation thought necessary and to incorporate it into an application book. A copy of that was also sent to the applicant about 20 June 2004.
In a letter dated 24 June, received at the Court on 30 June 2004, the applicant wrote:
"Due to happenings and circustances (sic) beyond my control, because of my incarceration it has been extremely difficult logistically with photo‑copying, book binding, etc.
I apologise for the delay submitting my documents, but they should arrive in the next few days. Thank you for sending me an appeal book sample, which I received 4 days ago."
The one page outline of submissions handed up to the Court on 1 July 2004 read:
"1.The first point I would like to raise with the Court is to take into consideration that English is my second language.
2.The second point before the Court is that I have very little knowledge of Legal matters.
3.The third point for the Courts consideration is that my Appeal has been prepared by fellow inmates who have extremely limited Legal resources available to them at Acacia Prison.
4.The fourth point I would like to draw before the Courts attention is that because of funding restraints Legal Aid Appeals are rarely funded.
5.The fifth point I would like to draw before the Courts attention is the Crown has only served me their outline of submissions yesterday at lunchtime, consequently we have had no time to research their submissions.
6.One question before the Court is how do we overcome the disparity in resources between self represented Appellants and the D.P.P.?
7.Another question for the Court is, is it procedurally fair that Appeals are heard without the Appellants being represented by Legal Counsel?"
The difficulties confronting an unrepresented applicant or appellant in seeking to pursue an appeal in this Court are significant. They are compounded when the applicant speaks little or no English. In all but the rare cases, applicants do not have the resources, financial or otherwise, to adequately prepare and present their cases. Quite apart from the fundamental unfairness of a system which compels people to pursue their appeal in these circumstances, there is a wider adverse effect on the proper administration of justice as a whole.
That has the potential to lead to injustice because matters are not adequately ventilated before the courts. Relevant material and even critical evidence may not be included in appeal books or otherwise brought to the court's notice; important legal issues may not be raised at all because the applicant is not aware of them or is unable to articulate them. The assistance the court can give to an unrepresented applicant is limited, first because the court is not and cannot be aware of the applicant's case as it would be known to a legal representative, and secondly because the court cannot take on an adversarial role in support of any parties.
A further consequence is that the lack of legal representation increases the workload on the court, because in an attempt to determine whether there is any substance to often poorly formulated and inadequate or ambiguously brief grounds of appeal, the court must examine the whole case (even though much of it may turn out to be irrelevant), without the benefit of arguments based on legal principle or authority. This is unnecessarily time consuming and wasteful of judicial and court resources.
The problem is substantial and is increasing.
I am driven to make these observations because I am concerned about the risk of grave injustices being occasioned as a result of the lack of availability of legal representation to an increasing number of applicants who come before this Court, which is, for all but a small minority of them, in the Court of final appeal.
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