Mikulic v The State of Western Australia - [2011] WASCA 127

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MIKULIC -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 127

CORAM: McLURE P
NEWNES JA
HALL J

HEARD: 11 MAY 2011

DELIVERED : 8 JUNE 2011

FILE NO/S: CACR 158 of 2009

BETWEEN: TONY MIKULIC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WISBEY DCJ
File No  :IND 250 of 2008

Catchwords:

Criminal law - Appeal against sentence - Totality principle - Plea agreement - Value of cooperation with police - Turns on own facts

Legislation:

Criminal Procedure Act 2004 (WA), s 97

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr J McGrath

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Mikulic v The State of Western Australia [2011] WASCA 14

McLURE P: This is an appeal against sentence. The appellant's appeal against his convictions for the relevant offences has been dismissed: Mikulic v The State of Western Australia [2011] WASCA 14. Much of what follows relating to the background is taken from that judgment.
The appellant was convicted on his own plea of guilty of the following offences:
(a)on 27 June 2007 at Eucla, attempting to possess MDMA (8.832 kg) with intent to sell or supply it to another (count 2);
(b)on 27 June 2007 at Eucla, attempting to possess methylamphetamine (3.108 kg at a purity of between 23% ‑ 26%) with intent to sell or supply it to another (count 4);
(c)on or about 27 June 2007 at Connolly, possessing MDMA (1.23 kg) with intent to sell or supply it to another (count 5);
(d)on or about 27 June 2007 at Connolly, possessing MDMA (1.921 kg) with intent to sell or supply it to another (count 6);
(e)on or about 27 June 2007 at Connolly, possessing cocaine (19.15 g at a purity of between 76% ‑ 80%) with intent to sell or supply it to another (count 7);
(f)on or about 27 June 2007 at Connolly, possessing methylamphetamine (2.07 g at 26% ‑ 27% purity) with intent to sell or supply it another (count 8);
(g)on or about 29 June 2007 at Lancelin, possessing MDMA (8.59 g) with intent to sell or supply it to another (count 9);
(h)on or about 29 June 2007 at Lancelin, possessing methylamphetamine (2.98 g at 25% purity) with intent to sell or supply it to another (count 10).
The sentencing judge imposed a total effective sentence of 12 years' imprisonment. In form, there are two grounds of appeal. They are that the total sentence is manifestly excessive (ground 1) and infringed the first limb of the totality principle (ground 2). There is no challenge to the individual sentences. In substance, there is only one ground of appeal. The manifest excess ground only applies to individual sentences.
Counts 2 and 4 related to drugs in the possession of the appellant's brother, Charlie Mikulic, who was in a vehicle being driven by a Glenn Olston. The drugs were located after the vehicle was stopped and searched by police at Eucla on 27 June 2007. The drugs were hidden in a steel tube which had to be cut open. Olston had driven the vehicle to Sydney with a very large quantity of cash hidden in the steel tube which cash was used to purchase the drugs located by police on the return journey to Perth.
After the police located the drugs at Eucla, police searched the appellant's residence in Connolly where the drugs the subject of count 5 were found. Police also found note books detailing drug names, measurements and notations consistent with drug prices and more than $30,000 in cash.
On 25 July 2007, a member of the public found a brown handbag in bushland near the edge of the Joondalup Golf Course. This location was 7 or 8 m from the rear fence of the appellant's residence in Connolly. The handbag contained the drugs the subject of counts 6, 7 and 8.
On 29 June 2007, police searched a property in Lancelin owned by the appellant. Police located the drugs the subject of counts 9 and 10 at that address. Police also located a heat sealing machine, digital scales, note books and various papers detailing drug weights and transactions. Police also located firearms and steel tubes similar to that found in the vehicle searched in Eucla.
In June 2007, members of the Organised Crime Squad commenced Operation Cadiz. That operation was directed at events surrounding the collection, purchase and transport of the drugs the subject of counts 2 and 4. Counts 2 and 4 were added at the commencement of the trial and were in the alternative to counts 1 and 3 which charged that on 27 June 2007 at Eucla, the appellant (and his wife) possessed the relevant drugs with intent to sell or supply. The appellant and his wife initially pleaded not guilty to all charges.
In March 2009, the appellant's wife made an application under s 97 of the Criminal Procedure Act 2004 (WA) for disclosure of specified documents. On 7 April 2009, Chief Judge Martino upheld a claim of public interest immunity made on behalf of the Commissioner of Police in relation to specified documents sought by the appellant and his wife. It had been foreshadowed that their defence would substantially hinge on the jury's assessment of the character and credibility of a State witness, Mr Stephen Andrijasevich.
After five days of trial and after hearing from 12 prosecution witnesses but before the State called Mr Andrijasevich, counsel for the appellant informed the trial judge that the State and the appellant had reached an understanding which was intended to be reflected in a memorandum of understanding pursuant to which the appellant would plead guilty to counts 2, 4 and 5 ‑ 10 (ts 225, 226). A memorandum of understanding dated 19 May 2009 was signed by each of the appellant, his counsel Mr Vickridge, counsel for the State and a police officer in respect of certain summary matters. The memorandum of understanding relevantly provides:
This Memorandum of Understanding is between The Director of Public Prosecutions (DPP), Tony Mikulic (TM) and Western Australia Police (WAP).
In respect of Perth District Court Indictment 250 of 2008, TM undertakes to:
(1)plead guilty to counts 2, 4, 5 ‑ 10;
(2)give the WAP a full and frank statement regarding the counts and any other ancillary matters of which he has knowledge;
(3)participate in a visually-recorded interview in respect of the matters referred to in paragraph (2) including an agreement to give evidence in any trial arising from such matters; and
(4)plead guilty to the summary charges of possessing unlicensed firearms relating to the two rifles found in the tool box in the garage at Lancelin.
In respect of Perth District Court Indictment 250 of 2008, the DPP and WAP undertake:
(5)to accept the pleas of guilty of TM to counts 2, 4, 5 ‑ 10 in full and final satisfaction of the indictment;
(6)to accept the plea of guilty of TM to the charge of possession of firearms to which paragraph (4) refers in full and final satisfaction of all summary charges;
(7)to acknowledge that TM has entered pleas of guilty which has saved the State of Western Australia a three week trial which entitles TM to a discount of sentence;
(8)to agree that any terms of immediate imprisonment imposed should be back-dated to the date of his arrest on 27 June 2007;
(9)that on receipt of any request for immunity from TM, the DPP will undertake to give consideration to same in accordance with the standard draft document as attached and marked 'A';
(10)that, subject to the content of the statement and visually recorded interview referred to in paragraphs (2) and (3), the DPP will advise the judge at the sentencing of TM, the police view on the cooperation which has been provided by TM; and
(11)acknowledge that the statements made by Stephen John Andrijasevich are in dispute.
On 19 May 2009, the appellant pleaded guilty to the counts foreshadowed in the memorandum of understanding.
Sentencing submissions were made to the trial (now sentencing) judge on 8 September 2009. The appellant was represented by new counsel, Mr S Rafferty. The State tendered the papers comprising the State brief and the evidence adduced at the trial.
The appellant disputed the State claim (which was based on inferences from the evidence adduced at trial) that he was the 'main man' in the criminal enterprise. The appellant's counsel stated that the appellant accepted criminal responsibility for the charges to which he had pleaded guilty on a particular factual basis which he claimed was open on the evidence, being in substance that it was Mr Andrijasevich's criminal enterprise not that of the appellant. Mr Rafferty went into considerable detail concerning the appellant's alleged role in the offences to which he pleaded guilty (the substance of which is described in the sentencing judge's reasons set out below).
The sentencing judge reserved his decision. On 11 September 2009 he informed the appellant's counsel of his tentative view that he would not accept the defence case theory and that if the appellant wished to pursue it, a trial of issues would be necessary (ts 2). In the absence of a trial of the issues the sentencing judge said he was able to determine the facts on the material before him (ts 4). There being no application for a trial of issues, the sentencing judge made findings of fact in respect of the individual offences. He continued:
On your behalf, Mr Mikulic, it's urged upon me the criminal enterprise was that of Mr Stephen Andrijasevich from start to finish. Your counsel pointed out that Operation Cadiz targeted two people, being yourself and Andrijasevich. He pointed out that the vehicle being used by Olston to transport the money to Sydney and to return with the drugs was registered to Andrijasevich. It was submitted that not only was the drug run Mr Andrijasevich's enterprise, but that all the drugs found at Connolly were his.
It is asserted that Mr Andrijasevich was responsible for placing the money into the steel beam for the trip to Sydney, although it is acknowledged that you were responsible for close welding it. It's said that you were in fear of Andrijasevich and intended to take possession of the drugs so that you could effectively blackmail him by saying, as your counsel put it, 'Well, you want your gear back, get out of our lives'. It was your intention to take possession of the drugs for that purpose alone and that there was no commercial intent.
Your counsel described that alleged plan as poorly conceived, but I would describe it as a fanciful concept, perhaps ludicrous. The explanation given on your behalf for the large sum of cash in your possession and for the extraordinarily large amount used for the previous purchase of a boat was that it came from legitimate commercial activity. That I entirely reject.
You are to be sentenced on the basis that you were actively involved in drug dealing at a high level, that you planned, financed and facilitated the acquisition and transportation of the drugs seized at Eucla, and it was your intention to take possession of those drugs if they had not been intercepted by the police, and that it was your intention to distribute them in the community to your considerable financial advantage.
In my view, that is the only conclusion that can be rationally be drawn from the material before the court. You possessed the drugs found at Connolly with the same intent and purpose. The telephone intercept product is eloquent of your involvement in drug dealing and inconsistent with the alleged state of your relationship with Andrijasevich. It is on that basis that you are to be sentenced (ts 12 ‑ 13).
The appellant by his counsel conceded in the appeal that the total effective sentence would be within the range of a sound exercise of the sentencing discretion but for 'the assistance offered to the prosecuting agencies … reflected in the Memorandum of Understanding'.
By item 10 of the memorandum of understanding, the Director of Public Prosecutions undertook to advise the sentencing judge of the police view on the cooperation provided by the appellant. That was done in a memorandum dated 14 August 2009 from a detective from the Organised Crime Squad. It is apparent from the memorandum that the appellant's cooperation involved him advancing the version of the facts advanced on his behalf in sentencing and rejected by the sentencing judge. The police memorandum concluded as follows:
[T]he WA Police have formed the conclusion that Mr Mikulic has been of no assistance in furthering the investigation into the charges at hand, nor provided any information whatsoever that may assist police in any other areas. Quite the opposite, Police have the opinion that Mr Mikulic has been evasive and untruthful on matters put to him, and has failed to fulfil his undertaking.
The prosecutor submitted to the sentencing judge that '[t]he cooperation which has been afforded ‑ and I use that word advisedly ‑ has been of no value' (ts 45). Counsel for the appellant addressed that submission as follows:
Just finally, sir, my learned friend says that Mr Mikulic has given no assistance to the authorities. Well, he can't tell lies to the authorities. He can't make things up. If he doesn't know anything, he can't tell them; and that's really what's happened here. He's told them what he knows. It doesn't help them, but he can't be penalised for that. Its not‑--
WISBEY DCJ: No.
RAFFERTY, MR: No, I accept that.
WISBEY DCJ: He can't be penalised. But it's the question of in mitigation if he does provide---
RAFFERTY, MR: But I didn't put forward in mitigation that there was---
WISBEY DCJ: No, no.
RAFFERTY, MR: No, that's my point. If I had have made mention of that by way of a mitigatory factor, it would have been an appropriate submission. The fact that I didn't and then to say, 'Well, he hasn't helped anybody out', at the end of the day that takes you nowhere (ts 52).
The point made by counsel for the appellant was that the appellant's failure to provide any assistance of value could not be an aggravating factor but was not relied on as mitigatory. Nor could it be. The approach taken by the appellant's counsel was entirely in accordance with the material before the sentencing judge. However, the appellant received the benefit of the advantages secured to him by his entry into the memorandum of understanding.
The appellant was aged 48 years at the time of sentencing and had no relevant prior convictions. However, the totality of his offending is at a very high level of seriousness. The sentencing judge found that the appellant planned, financed and facilitated the acquisition and transportation of the drugs seized at Eucla. He found him to be involved in the dissemination of illicit substances at a significantly high level close to the source of manufacture. The offences related to a very large

quantity of high purity prohibited drugs. The total sentence of 12 years' imprisonment is consistent with comparable cases and is within the range of a sound exercise of the sentencing discretion. The appeal should be dismissed.

NEWNES JA: I agree with McLure P.
HALL J: I agree with McLure P.