Mada v The Queen
[2003] WASCA 1
•17 JANUARY 2003
MADA -v- THE QUEEN [2003] WASCA 1
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 1 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:100/2002 | 15 NOVEMBER 2002 | |
| Coram: | MURRAY J TEMPLEMAN J ROLFE AJ | 17/01/03 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Sentences quashed Applicant resentenced | ||
| B | |||
| PDF Version |
| Parties: | ADRIAN MADA THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Five offences of possession of heroin with intent to sell or supply and one offence of supplying heroin Need to allow separately for fasttrack plea of guilty and other early pleas not on the fasttrack Allowance for past cooperation with authorities and promised future cooperation Whether sentence for supplying heroin properly made cumulative on other sentences Allowance for confiscation of property of offender Whether aggregate term of 10 years imprisonment manifestly excessive Totality principle |
Legislation: | Nil |
Case References: | Abela v The Queen [2002] WASCA 279 Bowman v The Queen (1995) 14 WAR 466 Cameron v The Queen (2002) 76 ALJR 382 Langridge v The Queen (1996) 17 WAR 346 Miles v The Queen (1997) 17 WAR 518 Pearce v The Queen (1998) 194 CLR 610 R v Gallagher (1991) 23 NSWLR 220 R v Rintel (1991) 3 WAR 527 "S" v The Queen [2000] WASCA 34 "X" v The Queen [2000] WASCA 355 AB (1999) 198 CLR 111 Cooper v The Queen [2001] WASCA 379 House v R (1936) 55 CLR 499 Johnson v The Queen [2002] WASCA 102 Koushappis v The Queen, unreported; CCA SCt of WA; Library No 950729; 6 December 1995 Lowndes v The Queen (1999) 195 CLR 665 Perez-Vargas & Stevens v R (1986) 8 NSWLR 559 Pop v The Queen [2000] WASCA 283 Quach v The Queen [1999] WASCA 210 R v AB (No 2) (2000) 117 A Crim R 473 R v Astill (No 2) (1992) 64 A Crim R 289 R v Atholwood (1999) 109 A Crim R 465 R v Bellissimo (1996) 84 A Crim R 465 R v Cartwright (1989) 17 NSWLR 243 R v Chick (2000) 114 A Crim R 417 R v Duffy (1996) 85 A Crim R 456 R v Duffy (1996) 85 A Crim R 456 R v Everett (1994) 73 A Crim R 550 R v Gooley (1996) 66 SASR 380 R v Hafner [2002] WASCA 211 R v Hammond (2000) 118 A Crim R 66 R v Hayes (1981) 3 A Crim R 286 R v Roadley (1990) 51 A Crim R 336 R v Ruich [2000] WASCA 84 R v White [2002] WASCA 112 Rostom v R [1996] 2 VR 97 Wong v The Queen (2001) 185 ALR 233 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MADA -v- THE QUEEN [2003] WASCA 1 CORAM : MURRAY J
- TEMPLEMAN J
ROLFE AJ
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Five offences of possession of heroin with intent to sell or supply and one offence of supplying heroin - Need to allow separately for fasttrack plea of guilty and other early pleas not on the fasttrack - Allowance for past cooperation with authorities and promised future cooperation - Whether sentence for supplying heroin properly made cumulative on other sentences - Allowance for confiscation of property of offender - Whether aggregate term of 10 years imprisonment manifestly excessive - Totality principle
Legislation:
Nil
(Page 2)
Result:
Leave to appeal granted
Appeal allowed
Sentences quashed
Applicant resentenced
Category: B
Representation:
Counsel:
Applicant : Mr T F Percy QC & Mr N J Mullany
Respondent : Mr S E Stone
Solicitors:
Applicant : E N Stamatiou & Co
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Abela v The Queen [2002] WASCA 279
Bowman v The Queen (1995) 14 WAR 466
Cameron v The Queen (2002) 76 ALJR 382
Langridge v The Queen (1996) 17 WAR 346
Miles v The Queen (1997) 17 WAR 518
Pearce v The Queen (1998) 194 CLR 610
R v Gallagher (1991) 23 NSWLR 220
R v Rintel (1991) 3 WAR 527
Case(s) also cited:
"S" v The Queen [2000] WASCA 34
"X" v The Queen [2000] WASCA 355
AB (1999) 198 CLR 111
Cooper v The Queen [2001] WASCA 379
House v R (1936) 55 CLR 499
(Page 3)
Johnson v The Queen [2002] WASCA 102
Koushappis v The Queen, unreported; CCA SCt of WA; Library No 950729; 6 December 1995
Lowndes v The Queen (1999) 195 CLR 665
Perez-Vargas & Stevens v R (1986) 8 NSWLR 559
Pop v The Queen [2000] WASCA 283
Quach v The Queen [1999] WASCA 210
R v AB (No 2) (2000) 117 A Crim R 473
R v Astill (No 2) (1992) 64 A Crim R 289
R v Atholwood (1999) 109 A Crim R 465
R v Bellissimo (1996) 84 A Crim R 465
R v Cartwright (1989) 17 NSWLR 243
R v Chick (2000) 114 A Crim R 417
R v Duffy (1996) 85 A Crim R 456
R v Duffy (1996) 85 A Crim R 456
R v Everett (1994) 73 A Crim R 550
R v Gooley (1996) 66 SASR 380
R v Hafner [2002] WASCA 211
R v Hammond (2000) 118 A Crim R 66
R v Hayes (1981) 3 A Crim R 286
R v Roadley (1990) 51 A Crim R 336
R v Ruich [2000] WASCA 84
R v White [2002] WASCA 112
Rostom v R [1996] 2 VR 97
Wong v The Queen (2001) 185 ALR 233
(Page 4)
1 MURRAY J: In this matter, I have had the advantage of access to the reasons of Rolfe AJ. I agree with his Honour that the applicant should be granted leave to appeal and that the appeal should be allowed. I am content that the sentences the subject of the appeal should be quashed and in lieu thereof, the following sentences should be imposed:
1. Indictment 1645 of 2001 - Possession of heroin with intent to sell or supply - Sentence of 4 years and 3 months backdated to 17 May 2001.
2. Indictment 539 of 2002 -
Count (1) - Possession of heroin with intent to sell or supply - Sentence of 1 year and 7 months concurrent.
Count (2) - Possession of heroin with intent to sell or supply - Sentence of 3 years and 8 months concurrent.
Count (4) - Possession of heroin with intent to sell or supply - Sentence of 5 years and 1 month concurrent.
Count (5) - Possession of heroin with intent to sell or supply - Sentence of 3 years imprisonment concurrent.
Count (3) - Supply of heroin - Sentence of 2 years and 3 months cumulative.
3 I should state as shortly as I am able my reasons for joining in the final determination of the appeal proposed by Rolfe AJ. His Honour has set out the grounds of appeal. I need not repeat them, but I do need to set out the material parts of the remarks made by the sentencing Judge when passing sentence. His Honour reviewed the facts of the case which were that on 26 April 2001, the applicant was a passenger in a vehicle which was stopped by police. The applicant was searched and the police seized from his person the heroin which was the subject of the first indictment, No 1645 of 2001. The drug was found in various packages on different parts of his person. The applicant was obviously dealing in the drug and, although he made no admissions, he was arrested and charged and released on bail.
4 The police continued their investigations on the following day. They found buried in bushland in Landsdale a further quantity of heroin
(Page 5)
- packaged in eight separate deal bags. Police had been led to that area because they had the applicant under surveillance. About 400 metres away, a further quantity of the drug was found. Although when the applicant was subsequently interviewed he again made no statement, he was further charged with those two offences which became counts 1 and 2 on the second indictment, No 539 of 2002.
5 On 2 May 2001, the applicant made an arrangement by telephone, overheard by police, to supply another with heroin. The two men met and the supply took place. That was count 3 on the second indictment, an offence committed whilst the applicant was on bail. Count 4 of that indictment relates to a discovery by the police on 16 May 2001 when the applicant was observed seated in a parked car. When the police searched the area, at the base of a nearby sign post they found buried a package containing a further quantity of heroin of a high degree of purity. Finally, they found the heroin which was the subject of count 5 on the indictment buried near a park in Yokine. It was not known precisely when that was done.
6 What was clear was, as the sentencing Judge found, that the various acts of possession with intent to sell or supply were individual manifestations of what should properly be taken to be the applicant's possession of a total quantity of heroin at the same time, split into various portions, secreted away in different places and dealt with differently to some degree by the applicant. The heroin was of a high degree of purity, the applicant displayed determination to pursue what the sentencing Judge found to be his participation in a wholesale trade in the heroin, the applicant proposing to distribute it to others who would cut the drug further to make it suitable to trade in the streets.
7 The offence of supply was a particular instance where that occurred, an offence distinct from the act of possession with intent which preceded it. I readily agree that that was an offence which merited cumulative punishment and, in my opinion also, ground 3 in the application for leave to appeal cannot be made good. In the final analysis, there was a substantial quantity of heroin involved. It had a considerable value and, subject to any mitigation available to the applicant, merited substantial punishment.
8 The applicant was a man of prior good character. When he came to be sentenced, he was nearly 35 years of age. He had no previous criminal convictions. The sentencing Judge accepted that the applicant was not a user of the drug himself. He was not selling to feed an addiction. He was
(Page 6)
- in that more serious category of offenders who trade in the drug for profit and he was not deterred by his original apprehension and admission to bail. His Honour did not, however, overlook what was put for the applicant, that he entered the trade at a time when he was experiencing great financial difficulty. His electronics business was losing money, his child support payments had increased, he could not meet them and he could not keep up the repayments on a block of land which he was in the process of purchasing. His new relationship, formed just prior to the commission of these offences after the breakdown of his marriage which had lasted from 1990 to 2000, had been placed under stress by the financial difficulties in which he found himself. He was able to place before the Court a number of character references. Given the seriousness of the offences, in my respectful opinion, the sentencing Judge was right to conclude that the mitigatory power of the circumstances which I have thus far described was considerably lessened.
9 What other mitigation was there? In the first place, there were the pleas of guilty made in the circumstances described by Rolfe AJ. That made to the first indictment was undoubtedly fast-track. Those made to the counts of the second indictment were not so prompt, but were nonetheless timely, early pleas and such delay as there was was appropriately explained. I agree that they required separate and different allowances once the quality of the pleas was properly evaluated. With respect to the sentencing Judge, it seems to me also that his Honour gave insufficient attention to this matter when he observed that the applicant had, "pleaded guilty in a manner which is perhaps midway between a fast-track plea and a late plea of guilty, but this nevertheless must rebound in some concession for him". The decision of the High Court in Cameron v The Queen (2002) 76 ALJR 382 makes it clear that the mitigatory power of a plea of guilty will depend upon a proper evaluation of its worth.
10 Another major mitigating factor was the co-operation provided to investigating authorities. I would not wish to say too much about the circumstances as they were described to the sentencing Judge, in these published reasons. The information before his Honour was primarily in the form of a confidential letter of recognition under the hand of an Assistant Commissioner of Police, the Commander of the Metropolitan Region. This much might be said. The police were investigating the commission of a number of criminal offences organised from within the prison where the applicant was being held. The applicant became embroiled in the activities within the prison and was threatened. His partner was kidnapped as part of that threat. The applicant went to the
(Page 7)
- authorities and identified the principle offender. It is clear that the information provided by the applicant enabled the principle offender to be charged. At the sentencing proceedings, the Crown prosecutor said that, "the person referred to has been charged, the offender is to be a witness in that prosecution and that is a matter that is still to come".
11 So, it seems to be clear that the assistance provided prior to the sentencing proceedings was significant and that the applicant was then in a situation in which he had promised to continue his co-operation in future by giving evidence against the person charged. The quality of that contribution both past and promised in the future seems to me not to be diminished by the motive to assist and provide some protection for the applicant's partner. The sentencing Judge was told, as one might expect, that, as a consequence of the information provided, the applicant's capacity to engage in prison programs available to the prison population generally was adversely affected and his isolation was increased by the need to provide protection for him in the prison.
12 The sentencing Judge made no reference to the promised future co-operation. His Honour said only, "He has given some assistance to the police. It is not assistance of high degree, but it is assistance that will, however, cause him some grief in the time ahead". With respect to his Honour, that seems to me to undervalue the worth of the assistance provided as established by the evidence. The omission to refer to the promised future co-operation, I think, does inevitably lead to the conclusion that no allowance was made for it: R v Gallagher (1991) 23 NSWLR 220, 234 and in failing to allow for this factor, it seems to me that his Honour erred.
13 By the Sentencing Act, s 8(5), where a sentence is reduced for an undertaking to assist law enforcement authorities, that fact must be stated, but, in contra-distinction to the position with respect to assistance provided in the past, the extent of the reduction must be separately identified. That is necessary for the purposes of s 37A of the Act so that if the offender reneges upon the undertaking, the Court may recall the sentence imposed and impose a sentence related to that which would have been imposed had the original sentence not been reduced on this account. The sentences proposed by Rolfe AJ contain a separate identification of the allowance for this factor which, over the whole group of offences, having regard to the terms proposed to be served cumulatively, amounts to a period of 9 months, to result in the aggregate term of 7 years and 4 months imprisonment.
(Page 8)
14 Another matter which the respondent agrees should not only have resulted in a reduction in the sentences imposed, but which overall should have resulted in a reduction of about a year, was the fact that, as a result of his commission of these offences, all the applicant's assets were confiscated, despite the fact that they were unconnected to the proceeds of the commission of any offence.
15 As I understand it, that came about in the following way. On the conviction of the applicant for these offences, the Court declared him to be a drug trafficker under the Misuse of Drugs Act 1981 (WA), s 32A. That was a declaration which the Court was required to make on the application of the prosecutor and it has the effect that under the Criminal Property Confiscation Act 2000 (WA), s 8(1), all the property owned or effectively controlled by the applicant at the time the declaration is made and all property previously given away, is confiscated and, effectively at that point, forfeit to the Crown.
16 In my view, the respondent's concession that regard should have been had to this matter (and patently the sentencing Judge did not do so) was rightly made in the circumstances of this case. The Sentencing Act, Pt 16, deals with reparation orders which are compensation orders and restitution orders: section 109. Section 110(1) and s 110(2) together provide that a reparation order is made in addition to and not part of the sentence imposed and the sentence must not be reduced because a reparation order is made. However, even in that case, by s 110(3), that does not prevent the mitigation of the sentence in a case where an offender agrees to make good loss or damage resulting from the offence or is otherwise contrite. Similarly, by s 123, a restraining order made under the Restraining Orders Act 1997 (WA), s 63, is made in addition to and not part of a sentence imposed on an offender and that sentence must not be reduced because of the making of a restraining order. The Criminal Property Confiscation Act contains no such provisions.
17 The Sentencing Act, s 8(3), provides:
"The fact that property derived or realised, directly or indirectly, by the offender, or that is subject to the effective control of the offender, as a result of the commission of the offence is forfeited to the Crown under a written law is not a mitigating factor."
18 By s 8(1), a mitigating factor is one which, in the Court's opinion, decreases the culpability of the offender or decreases the extent to which
(Page 9)
- the offender should be punished. In my opinion, the effect of s 8(3) is to prevent the Court taking that view in respect of the loss of property described in the subsection, but it is limited to property acquired directly or indirectly, or which comes under the effective control of the offender, as a result of the commission of an offence, and that is not this case.
19 In my opinion, the reality of what occurred in this case is that in the loss of his assets, the applicant suffered a significant punishment additional to that to be imposed by the sentencing Court. The relevant facts were put before his Honour. His assets were listed. It was known that they would be lost and the Court was told that their net value amounted to nearly $55,000, comprised of his share of the equity in his former matrimonial home jointly owned with his wife, a motor vehicle in the applicant's name, a motor vehicle in his wife's name, cash, furniture, a computer and money in the bank. The view to which I have come, that this was a matter of significant mitigation of punishment is, I think, consistent with the previous decisions of this Court in R v Rintel (1991) 3 WAR 527, 532; Bowman v The Queen (1995) 14 WAR 466 and Langridge v The Queen (1996) 17 WAR 346, 378; although each of those cases concerned a different legislative scheme. In the result, I would not dissent from the overall allowance of a year and I agree that this may be effectively achieved by reducing the punishment for each offence by 6 months, having regard to the fact that only two of the sentences are to be served cumulatively. In my opinion, ground 2 which, as Rolfe AJ observes, was clarified at the hearing of the appeal to include consideration of promised future co-operation, and ground 4 are made out.
20 Finally, I think in this case it is necessary to say something about the matter raised in ground 1. The sentencing Judge imposed the sentences by saying that for the offences of possession with intent, he would adopt "as a starting point" a term of 9 years imprisonment which, for the reasons given concerning the pleas of guilty, his Honour reduced to a period of 7 years, which he then applied as the sentence for each of the offences of possession, despite the different circumstances of their commission, ordering that they be served concurrently. The insistence of the High Court in Pearce v The Queen (1998) 194 CLR 610 at 623 - 624 [45] - [49] on traditional sentencing processes is not a mere matter of form. As explained by their Honours, a sentence proportionate to the criminality involved in each offence and the culpability of the offender, is required to be imposed. Their Honours said that failure to do so, "is likely to mask error". In my respectful opinion, that is demonstrated in this case.
(Page 10)
21 I repeat my conclusion that leave to appeal should be granted and the appeal should be allowed. I again express my concurrence in the sentences proposed by Rolfe AJ and in the way in which they should be structured.
22 TEMPLEMAN J: I have had the advantage of reading in draft the reasons for decision of Murray J and Rolfe AJ. I agree with those reasons, and with the orders proposed by their Honours. There is nothing I wish to add.
ROLFE AJ:
Introduction
23 The applicant was indicted in the District Court on two indictments. The first, indictment 1645 of 2001, alleged a single offence, namely that:
"On 26 April 2001 at Morley Adrian Mada had in his possession a quantity of a prohibited drug, namely heroin, with intent to sell or supply it to another."
24 The second, indictment 539 of 2002, alleged that:
"(1) On or about 27 April 2001 at Landsdale Adrian Mada had in his possession a prohibited drug, namely heroin, with intent to sell or supply it to another.
(2) And further that on or about 27 April 2001 at Landsdale Adrian Mada had in his possession a prohibited drug, namely heroin, with intent to sell or supply it to another.
(3) And further that on 2 May 2001 at Belmont Adrian Mada supplied a prohibited drug, namely heroin, to another.
(4) And further that on 16 May 2001 at Balcatta Adrian Mada had in his possession a prohibited drug, namely heroin, with intent to sell or supply it to another.
(5) And further that on a date unknown between 25 April 2001 and 17 May 2001 at Yokine Adrian Mada had in his possession a prohibited drug, namely heroin, with intent to sell or supply it to another."
(Page 11)
25 Mr Mada pleaded guilty to all the offences and the Crown Prosecutor advised the learned sentencing Judge that the reason for the two indictments was that Mr Mada initially pleaded guilty on the fast-track system to the matters alleged in the first indictment and:
"The remaining five counts were listed for a preliminary hearing. After discussions with my friend and his instructing solicitor, the accused then decided to enter a plea of guilty prior to the preliminary hearing on the remaining five matters, so there are two indictments, but they are effectively all one series of events."
26 It was not suggested by the Crown Prosecutor, who did not appear before this Court, that Mr Mada's failure to plead guilty at the first opportunity was, in the circumstances, unreasonable. It was agreed that, once certain factual matters relating to the charges in this indictment were clarified, Mr Mada did plead guilty. The same approach was taken in this Court by counsel who appeared for the respondent.
27 It is convenient to set out the amounts of heroin involved and its purity:
First indictment 81.6 grams: purity 46 to 38 per cent
(Possession)
Second indictment
(Possession)
Count 1: 7.86 grams: purity 45 per cent
Count 2: 21.76 grams: purity 42 per cent
Count 4: 28.00 grams: purity 50 per cent
Count 5: 8.24 grams: purity not stated
Total possession 147.46 grams
(Supply)
Count 3: 14.1 grams
28 It was not in issue that Mr Mada, who was a non-addicted supplier, was a wholesaler to retail suppliers to the public, and that he obtained this heroin in one consignment.
(Page 12)
29 The learned sentencing Judge was of the view that the pleas of guilty in respect of the second indictment were "midway between a fast-track plea and a late plea of guilty, but this nevertheless must resound in some concession for him". However, it is to be noted that when Mr Mada entered his pleas, there had been no committal proceedings and it was not suggested that there had been any waste of judicial or the State's resources. He also noted that the offences in counts 3 and 4 were committed while the applicant was on bail. The significance of a fast-track plea and of an early plea is utilitarian, as explained in a number of the authorities: eg, Cameron v The Queen (2002) 76 ALJR 382 at par 66, per Kirby J and Abela v The Queen [2002] WASCA 279. A person who chooses to plead guilty at an early stage or by way of a fast-track plea is, accordingly, entitled to a substantial discount by virtue of so doing.
The required sentencing process
30 In the result, his Honour was called upon to sentence the applicant in respect of six offences and, accordingly, was obliged to "fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality" per McHugh, Hayne and Callinan JJ: Pearce v The Queen (1998) 194 CLR 610 at par 46; see also Abela. However, he did not follow this course.
31 Rather, he dealt first with all the offences of possession, using as a starting point, a term of 9 years imprisonment. He continued:
"Because, however, of the plea of guilty lodged in this manner (sic) and the manner in which the pleas were taken, that can be reduced to a period of 7 years imprisonment. Now, as I am looking at the quantity overall as a whole that term will apply to all of those offences of possession and of course those terms shall be served concurrently."
32 His Honour turned to the offence of supplying and determined that, in normal circumstances, it would attract a term of 4 years imprisonment, which he reduced to 3 years for the plea of guilty. He continued:
"It clearly and obviously must be served cumulatively upon the other terms so that the end result is a term of 10 years imprisonment which will date from 17 May 2001 and the offender will be eligible for parole on all counts."
(Page 13)
33 His Honour was also bound to take into account co-operation Mr Mada had given the police and had promised and to reduce any ultimate sentence by a period because of the confiscation of his property. He did not state that he took the first matter into account or the extent to which he had reduced the sentences for the applicant's promised assistance, as he was required by s 8(5) of the Sentencing Act 1995 (WA) to do; nor did he reduce the sentence on account of the confiscation of the applicant's property.
34 In my opinion, these errors are sufficient to attract the provisions of s 689(3) of the Criminal Code and require the intervention of this Court.
The grounds of appeal
35 The original grounds of appeal were that his Honour did not allow a sufficient discount for the applicant's pleas of guilty and co-operation with the authorities, and that the sentence imposed was excessive in all the circumstances of the case. It was common ground before his Honour that whilst in prison Mr Mada had informed on another prisoner, thus placing Mr Mada in such jeopardy that he was kept isolated in maximum security. On the matter coming on for hearing, further grounds of appeal were permitted to be raised, they stating:
"1. The learned sentencing Judge erred in imposing a period of 7 years imprisonment on the single count contained in Indictment No 11645 of 2001 and each of counts 1, 2, 4 and 5 in Indictment No 539 of 2002.
Particulars
- (1) The sentences imposed did not reflect the individual circumstances of each offence, specifically:
(a) The amount and purity of the heroin to which each individual count related;
(b) The exact time at which the plea of guilty was entered; and
(c) Whether the offender was on bail at the time of the particular offence.
(Page 14)
- (2) The sentences imposed offended the principle enunciated by the High Court of Australia in Pearce v R (1998) 194 CLR 610.
(3) The sentences of 7 years imprisonment were excessive in all the circumstances of the case relating to each of those individual counts.
- 2. The learned sentencing Judge erred in failing to allow any adequate or quantifiable discount for the applicant's co-operation with the police and in particular the resultant hardship that it had brought and would continue to bring to him.
3. The learned sentencing Judge erred in making the sentence on count 3 in Indictment No 539 of 2002 fully cumulative on the sentences imposed on the remaining counts.
Particulars
- (1) His Honour erred in viewing the offence of sale as being of a character which warranted separate and additional punishment to the remaining counts in the Indictment.
(2) His Honour erred in failing to deal with this offence as being part of essentially the same transaction as the possession of the other amounts of the drug that formed the basis of the remaining counts in the Indictment.
(3) His Honour erred in failing to exercise his discretion to make the sentence fully or partially concurrent with the other sentences imposed in accordance with the 'totality principle'.
4. The learned sentencing Judge erred in imposing a total effective sentence that was excessive in all the circumstances of the case.
Particulars
- (1) The sentence failed to reflect adequately the matters personal to the applicant, in particular:
(Page 15)
- (a) His previous good record and the unlikelihood of re-offending;
(b) The personal, financial and matrimonial difficulties by which he was moved to commit the offences and the circumstances in which he offended whilst on bail;
(c) His co-operation with the police and, in particular, the resultant hardship that it had brought and would continue to bring to him; and
(d) The factors contained in the psychiatric report, specifically his depressive state and the cultural ignorance as to the gravamen of the offending.
- (2) The sentence failed to reflect adequately the loss and hardship occasioned by the confiscation of all his assets (despite these assets being unconnected to the proceeds of any offence) that resulted from his apprehension on these charges."
36 Ground 2 was expanded to include a breach of s 8(5) of the Sentencing Act, which states:
"If because an offender undertakes to assist law enforcement authorities a court reduces the sentence it would otherwise have imposed on the offender, the court must state that fact and the extent of the reduction in open court." (my emphasis)
The reasons for the sentence appealed from
37 The applicant was sentenced on 22 May 2002. The learned sentencing Judge set out the facts in some detail and, AB page 45, said:
"Now the following facts in my view stand out:
(1) The offender is a non-addicted dealer in heroin;
(2) The quantities involved and the manner of their disbursement into various places indicates that he is exhibiting a high degree of what one could call skill or
(Page 16)
- determination in hiding the substance and in dealing the same. The evidence as to the intercepts strongly supports this conclusion. The purity of the drug, which is common in nearly all cases at 50 per cent, indicates to me that the intended recipients are not the end users and that there is a potential to cut further."
38 His Honour regarded the applicant as a wholesaler passing on to retail suppliers, and continued:
"I also make the following points: This man is a first offender but it now appears to be settled precedent in this State that such prior good record does not assist him greatly in the assessment of criminality of crimes of this nature. He has given some assistance to the police, it is not assistance of high degree but it is assistance that will, however, cause him some grief at the time ahead."
39 Mr Percy QC, who appeared from Mr Mada, did not submit that the fact that Mr Mada was a first offender was not taken into account properly.
40 His Honour noted that the applicant was aged 34, that he was a migrant from Romania, and that it was said that he engaged in the distribution of heroin for financial gain "at a time when his business and personal life was in some difficulty".
41 He referred to certain other matters of a personal nature, noted when the second plea had been made, and said:
"I do say that the offence of sale being count number 3 on Indictment 539, whilst committed on bail clearly indicates the depth and determination of this offender's involvement in the sale of heroin. I have determined the matter should be approached this way."
42 I have referred to the sentences, which his Honour imposed. The reduction of 9 years imprisonment to 7 years imprisonment represented a discount of approximately 22 per cent and the reduction from 4 years to 3 years represented a discount of 25 per cent.
(Page 17)
Submissions on the applicant's behalf
43 Mr Percy submitted, firstly, that his Honour had fallen into error in dealing with the five possession counts as one. In my opinion, in the light of Pearce, that submission is correct. He pointed out that the single count in indictment 1645 of 2001 alleged an offence to which there had been a fast-track plea, which demanded a far higher discount than the possession counts in indictment 539 of 2002, where the pleas, although made reasonably early, could not be described as fast-track.
44 In Miles v The Queen (1997) 17 WAR 518, Malcolm CJ said, at page 521:
"It is the fact that the discount for a plea of guilty under the fast-track system has ranged between 20 - 25 per cent up to 30 - 35 per cent depending upon the circumstances: see Stretton v The Queen (unreported, Court of Criminal Appeal, WA Library No 950282, 1 June 1995)."
45 Mr Percy submitted that the fast-track plea in respect of this offence merited a discount of approximately 33 per cent and that, even if the starting point of 9 years was correct, which he disputed, that deduction would reduce the sentence to 6 years, without having regard to other mitigating circumstances. He further submitted that 7 years represented the top of the range for the possession offence involving 81.6 grams. Mr Stone, counsel for the respondent, agreed that, generally speaking, the range for this possession was 7 to 8 years. It must be said, in my opinion, that even allowing for the various mitigating matters Mr Mada was entitled to have taken into account, this was a case of serious criminality.
46 It seems to me that as his Honour did not deal with each offence individually; did not state either that he had made a discount because of assistance given and promised by the applicant, nor the extent thereof; and did not deduct a period, agreed by both counsel to be about a year, for the confiscation, there were errors of law making it appropriate for this Court to grant leave to appeal, so that it may reconsider the sentences imposed in accordance with law. Hence this Court's task is to revisit the sentencing process
A review of the sentences
47 It is clear that Mr Mada was in a position of some seniority in the drug supplier hierarchy and, in these circumstances, in my opinion, that his possession of the 81.6 grams would justify, before deduction, a
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- sentence of 8 years. From that, I would deduct 30 per cent for the fast-track plea and 10 per cent for the co-operation given and promised, ie, 40 per cent, which would reduce the sentence to 4 years 9 months. Mr Stone did not contend that there should not be the further discount of at least 10 per cent for the co-operation given and promised by Mr Mada to the police. The allowance made for promised future co-operation should be identified as 6 months.
48 I do not accept Mr Stone's submissions that there should have been a deduction of only 25 per cent for the fast-track plea. Mr Stone submitted that the percentage deduction for the other pleas should have been between 15 per cent and 20 per cent. In my opinion, 20 per cent, in the particular circumstances, is appropriate.
49 Mr Percy submitted that for the possession of 7.68 grams, the term of imprisonment should be 3 years; that for the possession of 21.76 grams, the term of imprisonment should be 5 to 6 years; that for the possession of 28 grams (bearing in mind that the offence was committed whilst Mr Mada was on bail), the term of imprisonment should be 5 to 6 years with a top of 7 years; and that for the possession of the 8.24 grams, the term of imprisonment should be 5 years.
50 Whilst, in my opinion, the possession of 28 grams whilst on bail should attract a penalty of 8 years, I do not see any reason, and Mr Stone put none, why the other figures are not appropriate. There should be a deduction of 30 per cent from each, being 20 per cent for the early plea and 10 per cent for co-operation.
51 In the result, the appropriate sentence for the possession of 7.68 grams is 3 years, which should be reduced by 30 per cent to 2 years 1 month, 3 months being attributed to the promised future co-operation.
52 The sentence for the possession of the 21.76 grams should be 6 years reduced by 30 per cent, making a sentence of 4 years 2 months, 5 months being attributed to the promised future co-operation.
53 The sentence for the possession of the 28 grams should be 8 years reduced by 30 per cent to 5years 7 months, of which, again, 6 months should be identified as the allowance for future co-operation.
54 The sentence for possession of 8.24 grams should be 5 years, reduced by 30 per cent, making a sentence of 3 years 6 months, 4 months being attributed to the promised future co-operation.
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55 It is clear from the evidence that all the possession offences arose out of possession of one consignment of heroin, which Mr Mada had secreted in various places, and, accordingly, the sentences should be served concurrently, resulting in an aggregate term of 5 years 7 months.
56 One then turns to the question of the sentence for supplying. Mr Percy submitted that the starting point should be reduced from 4 years to 3 years. I am not prepared to accede to this submission. In my opinion, the starting point of 4 years is more than justified when one takes into account that the offence was committed whilst on bail. However, the applicant is entitled to a 30 per cent reduction of that period, ie, 1 year 3 months, reducing the 4 years to a sentence of 2 years 9 months. I would identify an allowance of 3 months for promised future co-operation. I do not accept that as a matter of judgment, this term should be served wholly or partly concurrently with the sentences for possession. The total, accordingly, is a term of 8 years 4 months, being 5 years 7 months plus 2 years 9 months.
57 There is a further adjustment, which Mr Stone conceded should be made to the overall term, namely the reduction of 1 year for the confiscation of property. This reduces the aggregate term to 7 years 4 months, and for convenience I would deduct 6 months from each of the sentences which I would impose.
The totality principle
58 I have given careful consideration to whether there should be any further reduction based on the totality principle. In my opinion, there should not. Mr Mada committed serious criminal offences. He has had the benefit of quite substantial discounts for pleading early and for his co-operation to the police. There is little else that can be said in mitigation of the offences he committed.
Conclusions
59 Whilst I have identified what, in my respectful opinion, are deficiencies in the learned sentencing Judge's approach, such as to justify the grant of leave to appeal, any interference with his Honour's sentence would not occur unless I were satisfied that a formulation of the sentence, conformably with the principles which I consider are applicable, led to a substantially different result from that reached by his Honour, albeit by a different route. In my view, a difference of 2 years 8 months in a term of 10 years is sufficient to require appellate intervention.
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60 Accordingly, the orders I propose are:
(a) Application for leave to appeal be granted.
(b) Appeal be allowed.
(c) The sentences of Hammond CJDC aggregating 10 years imprisonment be set aside.
(d) In lieu thereof, sentences aggregating 7 years 4 months be imposed to run from 17 May 2001 with eligibility for parole.
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