Meg v The Queen
[2017] WASCA 161
•31 AUGUST 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MEG -v- THE QUEEN [2017] WASCA 161
CORAM: MAZZA JA
MITCHELL JA
BEECH JA
HEARD: 17 AUGUST 2017
DELIVERED : 31 AUGUST 2017
FILE NO/S: CACR 176 of 2016
BETWEEN: MEG
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STEVENSON DCJ
File No :IND XXX of 2016
Catchwords:
Criminal law - Appeal against sentence - Importing a marketable quantity of a border controlled drug - Whether aggregate sentence infringed first limb of the totality principle
Legislation:
Criminal Code (Cth), s 307.2(1)
Result:
Appeal allowed
Appellant resentenced to a total effective sentence of 7 years' imprisonment with a nonparole period of 4 years 6 months
Category: B
Representation:
Counsel:
Appellant: Ms S King
Respondent: Ms P A Aloi
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
A Child v The State of Western Australia [2007] WASCA 285
Iyoha v The Queen [2011] WASCA 46
Kuti v The Queen [2012] NSWCCA 43
Lindsay v The Queen [2012] NSWCCA 124
MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149
Nannup v The State of Western Australia [2011] WASCA 257
R v Hughes [2016] QCA 14
Rajabizadeh v The Queen [2017] WASCA 133
Ungureanu v The Queen [2012] WASCA 11
REASONS OF THE COURT:
Introduction
The appellant pleaded guilty to two counts of importing a marketable quantity of a border controlled drug, contrary to s 307.2(1) of the Criminal Code (Cth). Count 1 related to the importation of an equivalent of 335.3 g of pure methamphetamine. Count 2 related to the importation of an equivalent of 27.4 g of pure heroin. The appellant imported the drugs by ingesting a number of pellets containing the drugs.
The value of the methamphetamine was estimated to be:
gross quantity - range between $90,300 and $179,625; and
pure quantity - range $71,850 to $225,750.
The value of the heroin was estimated to be:
gross quantity -$5,000 to $16,000; and
pure quantity -$14,964 to $47,885.
The appellant was sentenced to 7 years 6 months' imprisonment for count 1 and 2 years' imprisonment for count 2. The sentencing judge ordered that the sentence for count 1 commence on the date of the appellant's arrest and, in effect, ordered the sentence for count 2 to commence at the end of the sentence for count 1. The total effective sentence was therefore 9 years 6 months' imprisonment. The sentencing judge fixed a single non-parole period of 7 years in respect of these sentences.
The appellant now appeals against this sentence.
Confidential schedule
The appellant provided some information about the persons who supplied him with the drugs to the Australian Federal Police. In order to avoid exposing the appellant to the risk of retribution, it is in the interests of justice to anonymise these reasons and to deal with the particular circumstances of the offence and the appellant, as well as the manner in which the sentencing judge dealt with the past assistance provided by the appellant, in a confidential schedule to these reasons. The schedule will be the subject of a confidentiality order. It will not be published except to the appellant and the Crown and their respective legal representatives.
At this point in the reasons it is sufficient to note that the appellant is a middle aged man of otherwise good character who had no previous connection with Australia. The appellant acted as a courier of the drugs, and was motivated to do so by the payment which he was to have received.
Sentencing judge's approach
After referring to the circumstances of the offence and general sentencing principles, the sentencing judge dealt with the basis on which the appellant was to be sentenced. Although his Honour expressed some scepticism as to some aspects of the appellant's account, the sentencing judge accepted that he was to be sentenced on the basis that:
1.The appellant was in a financially difficult position when he was approached and agreed to commit the offences for a specified sum;
2.This was the first occasion that the appellant had committed this type of offending;
3.The appellant was fully aware that he was attempting to import prohibited drugs into this country;
4.The appellant was a courier; and
5.The offence was committed for pure financial gain.
The sentencing judge accepted that the appellant pleaded guilty at the first available opportunity, but did not accept that this was indicative of any remorse or insight in relation to the seriousness of the offending. The sentencing judge concluded that the plea was entered in the face of a very strong Crown case, the appellant having been caught red‑handed.
The sentencing judge referred to the appellant's cooperation with law enforcement authorities, personal circumstances and a number of general matters. The sentencing judge indicated his view that the appropriate sentence in relation to count 1 was 7 years 6 months' imprisonment and the appropriate sentence in relation to count 2 was 3 years 2 months' imprisonment. The sentencing judge then referred to the totality principle of sentencing and said that he considered it appropriate to reduce the term of imprisonment for count 2 to 2 years. This resulted in a total effective sentence of 9 years 6 months' imprisonment. The sentencing judge fixed a single non-parole period of 7 years, which was to commence from the date of the appellant's arrest (when he was taken into custody).
Express errors: grounds 1 and 2
The appellant alleges that the sentencing judge made two express errors.
In ground 1, the appellant alleges that the sentencing judge erred in fact by characterising the appellant's level of offending 'as more than a mere courier', contrary to submissions made by prosecuting and defence counsel. We are not persuaded that the sentencing judge did make the express error alleged. The sentencing judge certainly expressed some scepticism about the appellant's account during the course of the sentencing submissions. However, in his sentencing remarks the judge dealt with the appellant on the basis that he acted as a courier.[1] The sentencing judge did not ultimately approach the sentencing exercise on the basis that the appellant was involved in the planning of the offence.
[1] ts 17 - 18.
Ground 2 contends that the sentencing judge erred 'by understating the level of cooperation given by the appellant', and taking into account, as the significant issue with respect to cooperation, a lack of prosecution of a third party relating to the information provided by the appellant. There is no merit in that ground. The sentencing judge described the cooperation offered by the appellant prior to sentence.[2] The sentencing judge also accurately recorded the use made of the information by police. Although the limited use made of the information provided did not remove the mitigating effect of the cooperation, the weight to be given to that mitigating factor was less than would have been the case if the information had been of greater practical utility.[3] The degree to which the information provided by the appellant was actually useful was one of the circumstances to be considered in determining the extent of any discount in the sentence to recognise past cooperation. The sentencing judge's reasons do not indicate that he regarded the utility of the cooperation as more than one of the factors to be considered. The weight to be given to that factor in all the circumstances was a matter for the sentencing judge.
[2] This was a relevant sentencing consideration under s 16A(2)(h) of the Crimes Act 1914 (Cth). In relation to undertakings of future cooperation with law enforcement authorities (which is not relevant in the present case) see s 16AC of the Crimes Act.
[3] See Ungureanu v The Queen [2012] WASCA 11 [2], [31], Nannup v The State of Western Australia [2011] WASCA 257 [34] ‑ [38]; MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149 [9], [52] ‑ [53]; A Child v The State of Western Australia [2007] WASCA 285 [11].
Inferred error: first limb of the totality principle
Ground 3 contends, in effect, that the total effective sentence of 9 years 6 months' imprisonment infringes the first limb of the totality principle.
The first limb of the totality principle in its application to an offence of importing a marketable quantity of a border controlled drug, and the approach in an appeal alleging an infringement of that principle, were summarised by this court in Rajabizadeh v The Queen.[4] We adopt that summary without repeating it. In that case the offender, who was a detainee at an immigration detention centre, received a package containing 52.3 g of heroin with a purity of 53.4% (being the equivalent of 27.9 g of pure heroin) and 193.8 g of methamphetamine with a purity of 78.3% (being the equivalent of 151.7 g of pure methamphetamine). 2.2 g of methamphetamine was also located in his room at the detention centre. At the time of sentence, the offender was 38 years old and of previous good character. Although the offender received slightly less methamphetamine than the appellant, his offence was aggravated by the fact that the offender obtained the drugs in a custodial setting. Unlike the appellant, the offender in that case did not have the mitigating effect of a plea of guilty or cooperation with law enforcement authorities.
[4] Rajabizadeh v The Queen [2017] WASCA 133 [28] - [36], [40] - [41].
In Rajabizadeh, the court found a total effective sentence of 9 years 6 months' imprisonment infringed the first limb of the totality principle. The court imposed a total effective sentence of 7 years 6 months' imprisonment with a non-parole period of 5 years. We refer to, without repeating, Hall J's survey of comparable cases of sentencing for importing a marketable quantity of a prohibited drug or attempting to possess a marketable quantity of a prohibited drug.[5] After noting that the total effective sentence was very high in comparison with other cases,[6] Hall J, with whom Buss P and Beech JA agreed, expressed his conclusion in the following terms:
Before adjusting on account of totality, the trial judge stated that he would have imposed 4 years on count 1 and 6 years 9 months on count 2. Thus, those two sentences were reduced by a total of 1 year 9 months on account of totality. That is a little less than one sixth of the total of the proposed sentences for counts 1 and 2. In my respectful view, that relatively limited reduction is some indication that the total sentence did not reflect the substantial common elements of counts 1 and 2: that the appellant had engaged in a single act of attempting to possess the single parcel containing both the heroin the subject of count 1 and the methamphetamine the subject of count 2.
In my respectful opinion, the process engaged in by the trial judge to reflect totality by reducing the individual sentences did not achieve the desired objective. It is inappropriate to make any determination as to the correctness of the starting points referred to by the sentencing judge. The only appropriate question is whether the aggregate sentence is a just reflection of the appellant's total criminal conduct in all the circumstances of the case. In my view, it is not and the total effective sentence manifests error. This ground should succeed and the appeal be allowed [62] ‑ [63].
[5] Rajabizadeh [45] - [59].
[6] In addition to the cases referred to in Rajabizadeh, the parties in the present appeal also referred to R v Hughes [2016] QCA 14; Lindsay v The Queen [2012] NSWCCA 124; Iyoha v The Queen [2011] WASCA 46; and Kuti v The Queen [2012] NSWCCA 43.
In our view, the same error may be inferred in this case. The total effective sentence of 9 years 6 months' imprisonment with a non-parole period of 7 years was high compared to sentences imposed in comparable cases, particularly when the fact that the drugs were imported in a single transaction, the plea of guilty, the appellant's role in the enterprise and his cooperation with law enforcement authorities are taken into account.
In the circumstances of this particular case, the fact that the pellets which the appellant digested contained more than one kind of border controlled drug does not significantly increase the level of his criminality. The appellant was not aware that he was importing more than one kind of border controlled drug, and the amount of each kind of border controlled drug imported was substantially less than the weight prescribed for a commercial quantity.[7] Compared to the quantity of methamphetamine imported, the amount of heroin was relatively small. As counsel for the respondent accepted,[8] if all the pellets ingested by the appellant had been methamphetamine, the sentence is unlikely to have been more than the 7‑year sentence imposed in relation to count 1.
[7] A marketable quantity of heroin is between 2 g and 1.5 kg, and a marketable quantity of methamphetamine is between 2 g and 750 g: see sch 4 to the Criminal Code Regulations 2002 (Cth) and s 301.10 and s 301.11 of the Criminal Code.
[8] Appeal ts 6.
In this case, the sentencing judge reduced the sentence he would otherwise have imposed on count 2 by 14 months to take account of the totality principle. That was a reduction of only 11% of the 10 years 8 months total effective sentence his Honour would have imposed if the sentences were to be served wholly cumulatively.
Having regard to the maximum penalty, the customary sentencing standards, the circumstances of the offence and the relevant mitigating factors, the total effective sentence of 9 years 6 months' imprisonment with a non‑parole period of 7 years fails to bear a proper relationship to the overall criminality involved in the two offences. In our view, error of principle is to be inferred from the result which is, in all the circumstances, unreasonable or plainly unjust. Counsel appearing for the respondent properly conceded this to be the case at the hearing of the appeal.[9]
[9] Appeal ts 10, 12.
Inferred error having been established, it is necessary for this court to exercise the sentencing discretion afresh. In our view, in all the circumstances, the appropriate sentence for count 1 is a sentence of 7 years' imprisonment and the appropriate sentence for count 2 is a sentence of 3 years' imprisonment. To give proper effect to the totality principle, both sentences should commence on the date of the appellant's arrest, resulting in a total effective sentence of 7 years' imprisonment. A single non-parole period of 4 years 6 months' imprisonment should be fixed.
We do not accept the Crown's submission to the effect that some degree of accumulation is required whenever the importation of more than one kind of border controlled drug is the subject of separate counts on an indictment. Whether or not the importation of more than one kind of border controlled drug significantly increases the overall criminality of the offending conduct will depend on the circumstances of the particular case. Moreover, whether and to what extent the sentence on a second count should be made cumulative on the sentence on the first count is also influenced by the length of the sentence on the first count. The guiding principle is the need to ensure that the total effective sentence is a proper reflection of the overall criminality involved in all the offences, in all their circumstances and taking account of the offender's personal circumstances. In all of the circumstances of this particular case we do not regard the inclusion of 27 g of heroin to be a significant aggravating feature of the offence, so as to justify the imposition of cumulative or partially cumulative sentences.
Given these findings, it is unnecessary to deal with ground 4, which contends that the sentence on count 1 was manifestly excessive, or with ground 5, which contends that the non-parole period was manifestly excessive. It can be seen from the sentence we have imposed for count 1 that we would not regard the sentence of 7 years 6 months' imprisonment for that offence to be manifestly excessive. The non-parole period of 7 years is obviously inappropriate once the total effective sentence is reduced to 7 years' imprisonment.
Orders
Leave to appeal has already been granted on grounds 3 and 5. The following orders should be made in the appeal:
1.Appeal allowed.
2.The sentence imposed by the District Court on IND 828 of 2016 is set aside and the following sentences are substituted:
(a)7 years' imprisonment on count 1; and
(b)3 years' imprisonment on count 2.
3.The sentences imposed by order 2 both commence on the date of the appellant's arrest (to be specified in the formal order).
4.A single non‑parole period is fixed at 4 years 6 months.
5.Subject to order 6, no person or entity is to communicate or publish to any other person or entity the whole or any part of the confidential schedule to the reasons published in CACR 176 of 2017 without prior leave of this court.
6.Order 5 does not prevent the communication or publication of the confidential schedule to:
(a)the Director of Public Prosecutions (Cth) or any of her counsel or employees; or
(b)the appellant or any of his legal advisers,
subject to any such counsel, employee or legal adviser having previously been given a copy of these orders.
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