Macri v The State of Western Australia
[2006] WASCA 63
•12 APRIL 2006
MACRI -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 63
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 63 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:29/2005 | 7 MARCH 2006 | |
| Coram: | WHEELER JA ROBERTS-SMITH JA PULLIN JA | 12/04/06 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | PASQUALE MACRI THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentence Possession methylamphetamine with intent to sell or supply "Drug trafficker" declaration Confiscation of property Whether mitigating |
Legislation: | Criminal Property Confiscation Act 2000 (WA) Misuse of Drugs Act 1981 (WA), s 6, s 32A |
Case References: | Aconi v The Queen [2001] WASCA 211 Bowman v The Queen (1995) 14 WAR 466 Grakalic v The Queen (2002) 27 WAR 19 Hiron v The Queen [2003] WASCA 310 Kirby v The Queen [2003] WASCA 164 Mada v The Queen [2003] WASCA 1; (2003) 137 A Crim R 460 R v Bellissimo (1996) 84 A Crim R 465 Sinagra-Brisca v The Queen [2004] WASCA 68 Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 169 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Barnes v The State of Western Australia [2004] WASCA 258 Cameron v The Queen [2000] WASCA 286 Delovski v The Queen [2002] WASCA 88 Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55 R v Hafner [2002] WASCA 211 Stapleton v The Queen [2004] WASCA 130 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MACRI -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 63 CORAM : WHEELER JA
- ROBERTS-SMITH JA
PULLIN JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GROVES DCJ
Citation : THE QUEEN v MACRI
File No : IND 1604 of 2003
(Page 2)
Catchwords:
Criminal law - Sentence - Possession methylamphetamine with intent to sell or supply - "Drug trafficker" declaration - Confiscation of property - Whether mitigating
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA), s 6, s 32A
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr D Grace QC
Respondent : Ms C Barbagallo
Solicitors:
Appellant : Porter Scudds
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Aconi v The Queen [2001] WASCA 211
Bowman v The Queen (1995) 14 WAR 466
Grakalic v The Queen (2002) 27 WAR 19
Hiron v The Queen [2003] WASCA 310
Kirby v The Queen [2003] WASCA 164
Mada v The Queen [2003] WASCA 1; (2003) 137 A Crim R 460
R v Bellissimo (1996) 84 A Crim R 465
Sinagra-Brisca v The Queen [2004] WASCA 68
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 169
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
(Page 3)
Case(s) also cited:
Barnes v The State of Western Australia [2004] WASCA 258
Cameron v The Queen [2000] WASCA 286
Delovski v The Queen [2002] WASCA 88
Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55
R v Hafner [2002] WASCA 211
Stapleton v The Queen [2004] WASCA 130
(Page 4)
1 WHEELER JA: This is an appeal against sentence, imposed following conviction after trial, in relation to one count of possession of methylamphetamine with intent to sell or supply contrary to s 6 of the Misuse of Drugs Act 1981 (WA). The sole ground of appeal is that the sentence imposed was manifestly excessive, it being said that it was outside the range of sentences open to the learned sentencing Judge "having regard to the principles and sentences outlined in Tulloh v R … " (Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 169). The issues arising from that ground seem to resolve essentially into three. The first is the relevance, if any, of the declaration of the appellant as a drug trafficker and the consequent forfeiture of his property pursuant to the combined effect of s 32A of the Misuse of Drugs Act and the Criminal Property Confiscation Act 2000 (WA). The second issue is the relevance of the weight and purity of the drug found in the possession of the appellant. The third issue is, having regard to, inter alia, that weight and purity, whether the sentence imposed was indeed outside a sound discretionary range. Before turning to those issues, it is convenient to outline the circumstances of the offence.
Facts of the offence
2 On 24 April 2003, the police approached the appellant while he was seated in a vehicle parked near a church in the Bayswater area. They requested him to empty his pockets and he produced a number of items from them, including two plastic bags containing white powder. He was arrested. The police searched the vehicle and found two further plastic bags containing a large quantity of white powder wrapped inside a black beanie in the centre console.
3 The powder in one of the bags produced from the appellant's pocket contained 18.2 grams of methylamphetamine of 1 per cent purity, while the second contained 2.61 grams of methylamphetamine of approximately 14 per cent purity. The two bags found in the centre console had a total weight of 54.04 grams of methylamphetamine of approximately 80 per cent purity - a very high level of purity indeed.
4 The appellant entered a plea of not guilty. In relation to the powder contained in his pocket, his defence at trial, as I understand it, was that his son had long had a problem with amphetamines, that he thought that his son had given up the drug, but that he had located the bags somewhere in his son's belongings and had been so upset that he had simply placed them in his pocket and driven off. He denied knowledge of the other, substantial, quantity in the car. I deal with the appellant's personal
(Page 5)
- circumstances when I come to consider the third of the issues raised on this appeal.
Relevance of confiscation
5 Although it did not feature in the appellant's written submissions, during the course of oral argument the appellant's counsel drew our attention to the fact that pursuant to s 32A of the Misuse of Drugs Act, the appellant had been declared a drug trafficker. Having regard to the finding of the jury and the quantity of drug, his Honour had no discretion in making such a declaration.
6 He drew attention also to certain facts contained in the submissions in mitigation. The appellant had five children, four of whom were living at home and were supported by the appellant and his wife. The appellant had been employed as a partner in the family spray and panel beating business, which was where he derived his legitimate income. The family home was sold as a result of a mortgagee sale arising from the freezing notice which was issued as a consequence of the charge against the appellant. In effect, the result of the appellant's offending was that his family home had been confiscated. His Honour the learned sentencing Judge noted that fact in the course of his sentencing remarks.
7 The submission was made that his Honour had not expressly given weight, or alternatively had not given enough weight, to the allegedly mitigating circumstance of the loss of the family home. We were advised on the hearing of the appeal, from the bar table, without objection, of the value of the family home which had been lost. The question of the relevance of that forfeiture then arises.
8 In the case of Sinagra-Brisca v The Queen [2004] WASCA 68, I discussed, at [19] - [26], in terms with which Templeman and McLure JJ agreed, the effect of a declaration pursuant to s 32A of the Misuse of Drugs Act and consequential forfeiture of property by an offender. I noted that, although the statutory scheme was different from that discussed by Parker J in Bowman v The Queen (1995) 14 WAR 466, the principles which his Honour enunciated in that case have been accepted and applied in Mada v The Queen [2003] WASCA 1; (2003) 137 A Crim R 460 and Kirby v The Queen [2003] WASCA 164. I therefore accepted those as the appropriate principles to be applied where a declaration pursuant to s 32A was made, and went on to say, at [21]:
"In particular, I draw attention again to the need to give 'full weight' to the legislative intention, which is that schemes of
(Page 6)
- forfeiture such as s 32A of the Misuse of Drugs Act are apparently designed to impose an additional deterrent over and above what would normally be considered a 'proportionate' sentence. What is desirable for a sentencing court to avoid is such a degree of disproportion between the offending and the totality of the consequences of that offending as may be seen, even in the context of such a legislative scheme, as unjust."
9 I went on in subsequent paragraphs to express the view that mere forfeiture of property would not be mitigating, but that where, for example, a person as a result of conviction would lose the fruits of many years of labour which was unconnected with criminal activity it may be appropriate to give some weight in mitigation to that circumstance. In every case, much will depend upon the circumstances of the individual case, and in every case it is for an offender to put before a sentencing Judge any relevant factors in mitigation, so that it is for an offender, if he wishes a matter to be taken into account by way of mitigation, to put before a sentencing Judge some credible material which suggests a source of the property other than that of a drug-dealing business.
10 I have subsequently become aware of the decision of Hiron v The Queen [2003] WASCA 310. In that case, McKechnie J made the following observations:
"27 Under the former regime, forfeiture was regarded as an additional punishment to be imposed at discretion. There needed to be some proportionality between the final outcome and the gravity of the offence: Rintel v The Queen (1991) 3 WAR 527 per Malcolm CJ at 532. This explains why in Bowman v The Queen (1995) 14 WAR 466 Parker J set out a series of factors (at 473) which might inform the exercise of the sentencing discretion.
28 The present regime under the Criminal Property Confiscation Act is different. If a convicted person fulfils the criteria then, upon application, the Court shall declare the person to be a drug trafficker under the Misuse of Drugs Act s 32A. There is no discretion to refuse to make an order. The consequence is that all property owned or effectively controlled by the drug trafficker is confiscated, together with all property that the person gave away before the declaration was made. The consequence is triggered, not by the exercise of judicial
- discretion, but by operation of law. The Misuse of Drugs Act and the Criminal Property Confiscation Act may be seen as a parliamentary response to drug trafficking. There are facets to the response. One facet is clearly the need for punishment. Another facet is the deterrent aspect facing a drug trafficker who stands to lose everything if he or she engages in serious offending. A further facet is acknowledgement of the difficulty in ascertaining which assets of a drug trafficker may have been acquired legitimately and which are the proceeds of drug dealings.
- 29 The Sentencing Act s 8(3) has been interpreted as inapplicable to the case of drug traffickers although the event which triggered the application to forfeit property under the effective control of the offender was the commission of the offence for which sentence is passed.
30 In Mada, Murray J regarded as rightly made the respondent's concession that regard should have been had to the confiscation of property following on the declaration of the drug trafficker. Mada was followed in Kirby per Roberts-Smith J.
31 Because of the change of legislative regime and the lack of the exercise of judicial discretion to make a confiscation order, I have doubts whether confiscation of a drug dealer's property may be regarded as a mitigating factor in most cases.
32 Notwithstanding my doubts, however, I am bound by the decisions in Mada and Kirby. On that basis, I agree with the reasoning of Miller J in the present case."
11 Appreciating the force of those observations, I turned to the relevant Parliamentary debates in order to see if there was any clear guide to the legislative intention which might require some modification of the principles as I had understood them to be in Sinagra-Brisca.
12 As is now customary in most cases, the Second Reading Speech on the introduction of the Criminal Property Confiscation Bill 2000, which led to the confiscation regime in question here, was the same in both the Legislative Assembly and the Legislative Council. On the introduction of the Bill into the Legislative Assembly on 29 June 2000, the Parliamentary
(Page 8)
- Secretary, moving the Second Reading said, at the commencement of the Second Reading Speech, the following (Parliamentary Debates, 29 June 2000, page 8611):
"Combatting organised crime in Western Australia is currently shackled by inadequate and outdated legislation. The approaches reflected in the current statutory provisions have not been as successful as was contemplated when introduced. In particular, the various difficulties associated with the Crimes (Confiscation of Profits) Act 1988 have enabled certain individuals to retain dishonestly acquired personal wealth and have left authorities with restricted capacity to locate or confiscate ill-gotten gains.
The drug trade has flourished under the deficiencies within the current system. The heads of drug rings continue to operate while the authorities lack evidence to tie their retained wealth to criminal activities. Furthermore, as the burden of proof lies with the authorities, it has been difficult to prove a relationship between unexplained wealth and criminal conduct. Without an effective confiscation system the profit has remained in the drug trade.
…
One of the strongest features of the Bill is that provision is made for the confiscation of all property of a declared drug trafficker, as provided in part 2. In this regard all the property owned, effectively controlled, or given away by a declared drug trafficker is confiscated. Under the Bill, if such a person flees the jurisdiction, or dies prior to the relevant charge being dealt with, he or she is taken to be declared a drug trafficker. For such declared persons, all property is confiscated, whether or not that property was lawfully acquired."
14 The second is that it appears to be assumed that there will in many cases be persons involved in the drug trade, and particularly higher in the
(Page 9)
- "hierarchy" of that trade, who build up substantial wealth, in circumstances where it is difficult to prove that that wealth has been dishonestly acquired. Some modification of the burden of proof is therefore thought to be required. I would respectfully observe that there will be many cases in which that assumption is no doubt correct. It would be naive to assume that merely because a person has not previously been convicted of dealing in drugs, that the person has never previously done so. On the other hand, it will of course on occasion be the case that an offender does engage in only one criminal transaction, sometimes after a lifetime of otherwise honest labour. The offender's drug dependence, gambling, or other emotional pressures often provide an explanation for such a course, where that occurs.
15 The understanding I would gain from the Second Reading Speech, then, is largely consistent with the view that I expressed in Sinagra-Brisca. It seems to me that there is a legislative assumption that, prima facie, a person who is declared a drug trafficker and who forfeits property as a result will be losing property which is in whole or in part derived from criminal activity. The offender was never entitled to the property in the first place, since his or her means of obtaining it were criminal, and therefore there is no "loss" which is required to be taken into account by way of mitigation. However, because the legislative intent is to attack "ill-gotten gains", it remains open to the Court to recognise in mitigation those situations where real hardship - not merely the loss of presumptively unlawfully acquired property - may be caused to an offender as a result of a declaration pursuant to s 32A. An example given to us in argument was of a hypothetical elderly offender, who had engaged in legitimate work all his life, and who, as a result of what was conceded to be a single, rash transaction, stood to lose the fruits of a lifetime of labour in circumstances where he would be considered too old to start again. As I said in Sinagra-Brisca, much will depend upon the circumstances of the individual case.
16 The only modification which I would now make to the observations which I made in Sinagra-Brisca would be that, taking into account the observations of McKechnie J, and considering the legislative intent as revealed in the Second Reading Speech, I would alter somewhat the view which I expressed in [26] of those reasons. Rather than suggesting merely that some "credible material" suggesting a source of property other than drug dealing should be placed before a sentencing Judge, it seems to me that, before a loss as a result of a s 32A declaration can be taken into account by way of mitigation, there must be material which leads a sentencing Judge positively to form the conclusion that all of the property
(Page 10)
- to be lost, or some very substantial portion of it, has been lawfully acquired. In some clear cases, of course, there may be a concession by the State to that effect. That is not to suggest that, even in such cases, significant weight will be placed upon such a loss by way of mitigation. Much will depend upon the nature and scale of the loss and its impact on the offender, having regard to all of the offender's other personal circumstances.
17 Applying those observations to the present case, there was simply nothing placed before his Honour to suggest that the house which was sold had been acquired solely or largely as a result of the lawful endeavours of the appellant. It was true that he had been apparently lawfully engaged as a panel beater, but that was not sufficient to lead to a conclusion that the acquisition of the house was solely or largely as a result of that occupation. This circumstance should therefore have been given no weight by way of mitigation.
Relevance of weight and purity
18 In relation to the importation of drugs, Gaudron, Gummow and Hayne JJ in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 noted that not all offenders will know or even suspect how much pure narcotic is to be imported, and that therefore "there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender's criminality by looking at the state of the offender's knowledge about the importation in which he or she was involved" (at [69]). In that context, their Honours considered that the selection of the weight of narcotic by the Court of Criminal Appeal of New South Wales as the chief factor to be taken into account in fixing a sentence "represents a departure from fundamental principle" (at [70]). That case is often cited in this Court as authority for the proposition that it is an error to regard the weight of a drug - or, alternatively, the "pure weight" of a drug - as the chief, or even a substantial, factor in ascertaining an appropriate sentence.
19 However, it should be observed that in Wong's case, it was possible for the trial Judge, having regard to the evidence given at that trial, to form a view as to the role which the appellant in that case played in the "distribution chain". A portion of that finding is set out at [35] of the reasons of the High Court. In some cases, it will be possible for a trial Judge to form such a view. Where an offender has pleaded guilty to a drug-related offence, the offender will obviously be able to put before the sentencing Judge material about the offender's role and motivation, and to
(Page 11)
- make submissions about the way in which, consistently with the depositions, the offender's role should be regarded. However, where, as here, there is a denial by the offender of any connection with the drug, and where the material at trial does not allow for any sensible appraisal of the offender's knowledge of the quantity and purity of the drug which he had, or of his role in any distribution chain, a sentencing Judge is left, in order to evaluate criminality, with the bare facts of quantity and purity.
20 Turning to those bare facts of quantity and purity, as a matter of common sense, and from the usual experience of trial courts, certain general propositions can be stated. First, it is not necessarily the case that an offender who has a significant quantity of a drug is at a high level in a distribution chain. Where the quantity is very substantial, that will often be the case. However, many of those who are at a high level in the business of dealing in such drugs are careful not to keep about them, or be found in contact with, any very substantial quantity of the drug. The purity of the drug may be a much better indicator of an offender's role in distribution, since a drug is further "cut" as it is distributed more widely, until it reaches the very low level of purity at which it is usually sold by addicts to their fellow addicts on the streets. A high level of purity can therefore indicate that a person is the source within Australia, or close to the source, of a drug.
21 So far as sheer quantity is concerned, perhaps all that can be said is that the mischief at which the Misuse of Drugs Act is aimed is the ultimate distribution and consumption of prohibited drugs within the community. It can be presumed that the greater the quantity, the more widespread the consequences of such distribution, and therefore the greater the culpability of the distributor.
22 In the present case, the quantity of the larger parcel of drug was substantial, although much greater quantities have been seen in these courts. The purity of the parcel is very high. The appellant's counsel cited to us some 11 other cases involving substantial quantities of either heroin or methylamphetamine. The purity of the drug in this case is higher than in any of those other cases. So far as I can discern, the next highest purity would be either that of the 381.7-gram parcel, which was one of two packages, in Tulloh (at 68 per cent purity) or the 800-gram parcel in Sinagra-Brisca (the purity of which ranged between 28 and 70 per cent).
23 There was therefore a weight, and, more importantly, a purity, of drug in this case which would suggest that, in the absence of any
(Page 12)
- significant mitigating circumstances, a very severe term of imprisonment would be expected.
Was the sentence nevertheless too severe?
24 There were, as his Honour noted, a number of mitigating factors in the appellant's case. He had been in gainful employment for a considerable time. He was supporting a number of children. There were references which spoke of him as a hardworking person and a dedicated family man. On the other hand, although this was his first methylamphetamine offence, it was not his first drug offence. He had been convicted in 1982 of possession of a quantity of cannabis and again in February 2003 - only some two months before the commission of the current offences - he had been convicted of cultivation of a prohibited plant and possession of a prohibited drug (being cannabis). At the same time as he was convicted of those offences, he was also convicted of possession of a firearm without a licence and possession of unlicensed ammunition. That was not his first conviction in relation to a firearm. He also had some prior convictions for the giving of a false name and address, which appear from the record to be probably related to a name or address given when he was apprehended in relation to driving offences. There were a significant number of traffic offences on his record.
25 While there were some factors in his favour, the appellant could not be said to be a person of particularly good character or to have anything exceptional in his personal circumstances. Further, as has often been pointed out, having regard to the predominance of considerations of general and personal deterrence in relation to serious drug trafficking offences, personal circumstances would, in any event, generally be given very little weight: see, for example, R v Bellissimo (1996) 84 A Crim R 465 at 471 per Anderson J.
26 The sentence actually imposed was one of 8 years, being equivalent to 12 years prior to the transitional provisions (Sentence Administration Act2003 (WA)). The maximum penalty prescribed for an offence of this kind is one of a fine of $100,000 or a term of 25 years' imprisonment, or both. Although 25 years remains the statutory maximum, it would appear that the effect of the transitional provisions would be that the practical maximum term available would be one of 16 years and 8 months. The sentence imposed upon the appellant was, then, slightly under half of the practical maximum available.
27 It may be accepted that the sentence imposed upon the appellant was severe, but I do not consider that it was too severe. It is not necessary to
(Page 13)
- consider again the sentences generally imposed in cases of this kind. That has been undertaken recently in Tulloh by McLure JA. It is enough for present purposes to make the following observations. The majority of the cases referred to by the appellant involved a plea of guilty, some fast-track and some late, in circumstances where quite often it is not possible to quantify the "discount" attracted by the offender's remorse and willingness to facilitate the course of justice. They are therefore difficult to compare with this case, for that reason alone. However, the term imposed here does not appear to be disproportionate to that found in either Aconi v The Queen [2001] WASCA 211 or Grakalic v The Queen (2002) 27 WAR 19. Both of those cases involved heroin. In the former, there was a reduction of the term to 13 years following a fast-track plea of guilty for possession of a significant quantity of relatively pure heroin with intent to sell or supply, while in the latter, there was an effective term of 12 years for the sale or possession of a somewhat lesser quantity of heroin with intent to sell or supply. Each of those was prior to the transitional provisions. Finally, in Tulloh itself, leave to appeal was refused in relation to a sentence of 15 years' imprisonment (prior to the transitional provisions) following conviction after trial in relation to a greater quantity of methylamphetamine of a somewhat lesser purity than the methylamphetamine in question in this case.
28 It is my view therefore that the sentence imposed on the appellant, while at the higher end of sentences generally imposed in such circumstances, is not outside the range of an appropriate sentencing discretion.
29 ROBERTS-SMITH JA: I agree with the reasons for judgment of Wheeler JA.
30 PULLIN JA: I have read the draft reasons prepared by Wheeler JA. I agree with those reasons and have nothing to add.
16
15
2