Mikulic v The State of Western Australia
[2009] WASCA 150
•25 AUGUST 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MIKULIC -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 150
CORAM: McLURE JA
BUSS JA
MILLER JA
HEARD: 5 AUGUST 2009
DELIVERED : 25 AUGUST 2009
FILE NO/S: CACR 22 of 2009
BETWEEN: CHARLIE RADISLAV MIKULIC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :MARTINO DCJ
File No :IND 250 of 2008
Catchwords:
Criminal law - Sentencing - Accessory after the fact to the crime of possessing prohibited drugs with intent to sell or supply - Maximum penalty for an accessory after the fact one half of the maximum penalty for a principal offender - Factors to be taken into account in sentencing an accessory after the fact to an offence against s 6(1) of the Misuse of Drugs Act 1981 (WA)
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1), s 33(3), s 34(1)
Result:
Application for an extension of time to appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr J Mactaggart
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AD v The State of Western of Western Australia [No 2] [2007] WASCA 207
Atherton v The State of Western Australia [2009] WASCA 148
Atkinson v The State of Western Australia [2008] WASCA 88
Bellissimo v The Queen (1996) 84 A Crim R 465
Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152
Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Guy v The Queen [2004] WASCA 9; (2004) 143 A Crim R 428
Lancaster v The Queen [1989] WAR 83
Medina v The Queen (1995) 84 A Crim R 316
R v Bartholomew (Unreported, WASCA, Library No 950431, 18 August 1995)
The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129
The State of Western Australia v Higgins [2008] WASCA 157
The State of Western Australia v Tran [2008] WASCA 183
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
Vagh v The State of Western Australia [2007] WASCA 17
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
McLURE JA: I agree with Buss JA.
BUSS JA: The appellant was convicted in the District Court of Western Australia, on his plea of guilty, of two counts of being an accessory after the fact to the possession by Tony Mikulic and Vanessa Anne Mikulic of the prohibited drugs, MDMA and methylamphetamine, with intent to sell or supply them to another.
By s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act), relevantly, a person who, with intent to sell or supply it to another, has in his possession a prohibited drug, commits a crime. The maximum penalty for an offence against s 6(1)(a) is 25 years' imprisonment or a fine of $100,000, or both. See s 34(1).
The appellant was charged with being a principal offender but, ultimately, the State accepted his pleas of guilty to being an accessory after the fact. Section 33(3) of the Act provides:
A person who incites another person to commit, or becomes an accessory after the fact to, an offence (the principal offence) commits ‑
(a)if the principal offence is a crime, the crime; or
(b)if the principal offence is a simple offence, the simple offence,
but is liable on conviction ‑
(c)to a fine not exceeding half of the fine; and
(d)to imprisonment for a term not exceeding half of the term,
to which a person who commits the principal offence is liable.
Accordingly, the maximum sentence for each of the offences committed by the appellant is 12 years and 6 months' imprisonment or a fine of $50,000, or both.
On 8 December 2008, Martino DCJ sentenced the appellant to 4 years and 4 months' immediate imprisonment on each count with the sentences to be served concurrently. A parole eligibility order was made. The sentences were back‑dated to commence on 9 July 2007, being the date on which the appellant was taken into custody in respect of the offences in question.
The last date for the appellant to apply for leave to appeal against sentence was 21 January 2009. He did not file his appeal notice until 18 March 2009.
The application for an extension of time to appeal
On 18 March 2009, the appellant's solicitor, Peter Ben Cassidy, swore an affidavit in support of his application for an extension of time to appeal. It appears that during January 2009 the appellant contacted the chambers of Simon Barry Watters and requested advice and representation in connection with an appeal against sentence. Mr Watters was absent from chambers until 27 January 2009. On 28 January 2009, Mr Watters requested Mr Cassidy to contact the appellant at Hakea Prison. On 2 February 2009, Mr Cassidy obtained instructions from the appellant. By letter dated 11 February 2009, the Legal Aid Commission of Western Australia informed Mr Cassidy that a grant of legal aid had been made available to enable advice to be given in connection with a possible appeal. On 17 February 2009, Mr Cassidy requested the appellant's previous legal representative to provide a copy of the sentencing transcript. By letter dated 13 March 2009, Mr Watters advised that there was merit in seeking leave to appeal against sentence.
On 21 April 2009, Miller JA ordered that the application for an extension of time, and the application for leave to appeal, be heard together with the appeal.
It is settled that where there has been a lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time, unless it is established that there will be a miscarriage of justice if an extension is not granted. See Lancaster v The Queen [1989] WAR 83, 85 (Malcolm CJ); AD v The State of Western of Western Australia [No 2] [2007] WASCA 207 [15] (Buss JA, Pullin JA & Miller AJA agreeing).
The relevant background facts
The appellant and Tony Mikulic are brothers. Vanessa Mikulic is Tony Mikulic's wife.
In June 2007, the police commenced a drug investigation. As from 14 June 2007, they monitored Tony Mikulic's mobile telephone.
During mid‑June 2007, Glenn Olston, an employee of Tony Mikulic, travelled by road from Perth to Sydney. Mr Olston's vehicle, a utility, carried a hollow square steel tube that was 3 m in length and weighed about 120 kg. Both ends of the tube were enclosed. An amount of $1,850,000 in cash was concealed within the tube.
When Mr Olston arrived in Sydney, a person who supplies drugs took possession of the vehicle. He opened the ends of the tube, removed the $1,850,000, inserted illicit drugs in the tube and re‑enclosed its ends.
The illicit drugs comprised:
(a)about 50,053 MDMA tablets with a total weight of about 8.832 kg and a purity of between 30% ‑ 34%; and
(b)about 3.108 kg of methylamphetamine, with a purity of between 23% ‑ 26%.
Also, in mid‑June 2007, the appellant, Tony Mikulic and Vanessa Mikulic travelled to Canberra by aircraft for the wedding of Tony and Vanessa Mikulic's daughter.
After the wedding, Tony Mikulic and Mr Olston collected the utility, with the tube containing the drugs, from the drugs supplier. Tony Mikulic and Mr Olston had agreed that Mr Olston would drive the utility to Perth. It had also been agreed that Mr Olston would collect the appellant from Marulan in New South Wales and drive him to Perth.
The appellant became a passenger in the utility. On 27 June 2007, at 4.35 pm, the police stopped the utility on the Eyre Highway, near Eucla. The utility, the appellant and Mr Olston were taken to the Eucla police station, where the police opened the tube and removed four large plastic packages. Three of the packages contained the MDMA pills and the fourth contained the methylamphetamine. The appellant and Mr Olston were questioned. After the drugs were seized, Mr Olston was arrested but the appellant was released.
Shortly after his release, the appellant telephoned Tony Mikulic at 9.47 pm. They spoke in the Serbian language. The conversation was brief, but the appellant told his brother, in substance, that:
(a)he would telephone him again in half an hour from a public telephone box; and
(b)the police 'took everything'.
At 10.05 pm, the appellant telephoned Tony Mikulic from a public telephone box at Mundrabilla. Once again, they had a conversation in the Serbian language. On this occasion, the appellant gave his brother further details about the discovery by the police of the drugs and about what Mr Olston had told them. The appellant went on to advise his brother as to the steps he should take to evade detection. For example, the appellant told his brother to 'disconnect' his telephone and also to 'get another telephone number'. He also advised that 'if you have something, make sure you don't have anything … '.
On 9 July 2007, the appellant was arrested and charged.
The learned sentencing judge's remarks
The learned sentencing judge recited the material facts.
His Honour found, for the purposes of the sentencing hearing, that the appellant made the telephone calls to his brother 'out of a misguided sense of family loyalty' (ts 19). He also found the appellant was not involved in the drug transaction. However, significantly, his Honour found that:
(a)after the police opened the tube and removed the four large plastic packages containing the drugs and before the appellant telephoned his brother, the appellant knew 'there was a very, very large amount of drugs involved' (ts 19); and
(b)the appellant alerted his brother of the events which had occurred at the Eucla police station 'hoping to enable your brother to avoid punishment for what you had correctly worked out [was] his involvement in this very serious drug offence of possession, with intent to sell or supply, of the amounts of MDMA and methylamphetamine that the police officers found' (ts 19).
The learned sentencing judge noted that the appellant was aged 48 years when he committed the offences. He had some prior criminal convictions but, with one exception, they were irrelevant to the sentencing process. The exception was a conviction in August 2000 for possession of a dangerous drug, namely cannabis. On that occasion, the appellant was sentenced to 12 months' imprisonment, suspended for 3 years. His Honour accepted that the appellant was not 'a career drug criminal', but he had had some involvement with drugs in the past and therefore knew the seriousness of the offence involving his brother (ts 19).
The appellant pleaded guilty on the morning on which the offences were listed for trial. Initially, he had pleaded not guilty. About two weeks before the due date for commencement of the trial, lawyers from the Office of the Director of Public Prosecutions suggested to the appellant's legal representatives that he might plead guilty as an accessory after the fact. In the circumstances, the learned sentencing judge accepted that the appellant was entitled to credit for his plea of guilty. It showed a willingness to facilitate the course of justice and an acceptance of responsibility for his offending behaviour.
The learned sentencing judge noted that the appellant had worked throughout his adult life and had supported his family honestly and not through inappropriate or illegal activities. He had seven children aged between 29 years and 18 months. His Honour found that the appellant had good prospects of rehabilitation.
The learned sentencing judge observed that it was a serious crime to alert a person who has been involved in serious drug offences for the purpose of endeavouring to enable him or her to avoid apprehension, conviction and punishment. His Honour emphasised that he was sentencing the appellant for being an accessory after the fact and not a principal offender, but said that, in the circumstances, the seriousness of his offending required sentences of immediate imprisonment.
The ground of appeal
The sole ground of appeal asserts, in essence, that the sentences imposed by the learned sentencing judge were manifestly excessive 'given the appellant's criminality and the circumstances involved'.
The nature of manifest excess
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implicit error. It does not assert a specific error. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, where Gleeson CJ and Hayne J observed:
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive [6].
And see Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 [7] ‑ [8] (Gummow, Hayne, Crennan, Kiefel & Bell JJ).
It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender. See Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Vagh v The State of Western Australia [2007] WASCA 17 [47] (Roberts-Smith JA)
The merits of the appeal
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. See Bellissimov The Queen (1996) 84 A Crim R 465, 471. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed solely for commercial gain. See Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [67] ‑ [70]; Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [50]; Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [52]. The degree of purity is often regarded as significant. See The State of Western Australia v Tran [2008] WASCA 183 [9]. Matters personal to an offender will almost always be a very limited consideration, but they are not completely irrelevant. See Bellissimo (469); Tulloh [12], [43], [46].
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. See The State of Western Australia v Higgins [2008] WASCA 157, where Steytler P (McLure & Miller JJA agreeing) said:
As to customary sentencing standards, caution is needed when trying to determine the level of severity of a particular sentence by comparison with those imposed in other cases. That is because there will inevitably be differences in the circumstances of offenders and offences: Tulloh [46] (McLure J, Murray J concurring); Ziino v The State of Western Australia [2007] WASCA 222 [25] (Owen JA, Wheeler & Miller JJA concurring). However, it is helpful to determine whether a general range of sentences can be discerned for like offences by reviewing similar cases, in an attempt to achieve consistency in sentencing: Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 [12] (McLure JA); Ziino [25] (Owen JA, Wheeler & Miller JJA concurring) [19].
As Gleeson CJ noted in Wong, the administration of criminal justice works as a system; it should be systematically fair and that involves, amongst other things, reasonable consistency [6]. His Honour explained:
All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.
Most sentencing of offenders is dealt with as a matter of discretionary judgment. Within whatever tolerance is required by the necessary scope for individual discretion, reasonable consistency in sentencing is a requirement of justice [6] ‑ [7].
Recently, in Atherton v The State of Western Australia [2009] WASCA 148, I collected relevant decisions of this court in relation to the sentencing of principal offenders for possessing prohibited drugs (including methylamphetamine and MDMA) with intent to sell or supply them to another. It is unnecessary to repeat that review in these reasons.
Although the maximum penalty that may be imposed on a person who is an accessory after the fact to an offence against s 6(1) of the Act is only one‑half of the maximum penalty which may be imposed on a principal offender, the major sentencing considerations in sentencing the accessory are also general and personal deterrence and appropriate punishment.
Although s 33(3) of the Act provides, relevantly, that a person who becomes an accessory after the fact to an offence (the principal offence) commits, if the principal offence is a crime, the crime, the offence committed by the accessory must, having regard to the reduced penalty, be characterised as significantly less serious than the principal offence. See Atkinson v The State of Western Australia [2008] WASCA 88 [16] (McLure JA, Steytler P & Miller JA agreeing).
There is a paucity of case law in this State on the sentencing of persons who incite others to commit, or become accessories after the fact to, offences against s 6(1) of the Act. The parties did not cite any cases. I have located Atkinson; R v Bartholomew (Unreported, WASCA, Library No 950431, 18 August 1995); Medina v The Queen (1995) 84 A Crim R 316; and Guy v The Queen [2004] WASCA 9; (2004) 143 A Crim R 428, but none of them is comparable to the appellant's offending in the present case.
In my opinion, the principal factors to be taken into account in sentencing an accessory after the fact to an offence against s 6(1) of the Act include the nature and extent of the assistance provided by the accessory to the principal offenders; whether the assistance adversely affected or was likely to adversely affect the ability of the law enforcement authorities to identify, apprehend and prosecute the principal offenders; the knowledge of the accessory in relation to the offences committed by the principal offenders (including the kind, quantity, purity and value of the drugs in question) and when and in what circumstances the knowledge was acquired; the relationship between the accessory and the principal offenders; the accessory's motive for providing assistance; and whether the assistance was provided wholly or in part for commercial gain. This catalogue of factors is not intended to be exhaustive. Matters personal to an accessory will invariably be given limited weight, but the weight in a particular case will depend upon the nature and extent of the assistance given by the accessory and the egregiousness of his or her conduct generally.
In the present case, the appellant's offences were not within the 'worst category' for the purposes of the majority's decision in The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129 [186] ‑ [189].
In my opinion, the appellant's criminality was at about the mid‑point of the scale of seriousness. It involved telephoning his brother twice to warn him that the police had discovered the drugs in question and were seeking to apprehend him. The appellant's intention, as found by the learned sentencing judge, was to endeavour to assist his brother in avoiding punishment for what the appellant believed was his brother's involvement in the very serious offence of possession, with intent to sell or supply, of the quantities of MDMA and methylamphetamine discovered by the police. When he made the telephone calls, the appellant knew that the quantities of the drugs in question were massive. The only reasonable inference, from his Honour's finding that the appellant intended to endeavour to assist his brother to avoid punishment and from the content of the telephone conversations, is that the appellant hoped the warning would give his brother the opportunity of deciding whether to destroy any incriminating material (and, if so, the opportunity to destroy it) and what, if anything, he would tell the police when, as appeared inevitable, they called him to account.
The appellant's culpability, as manifested by the facts and circumstances I have just recounted, was counterbalanced, to a limited degree, by the learned sentencing judge's findings that there was a close relationship between the appellant and his brother, and the appellant acted out of a misguided sense of family loyalty and not for commercial gain. Also, counsel for the State acknowledged, properly, before this court that the appellant's conduct had not, in the events which happened, in fact compromised or adversely affected the police investigation or the apprehension of and case against his brother.
It is true that the appellant's personal antecedents are of limited weight, but they are, in general, favourable. His prior conviction for the possession of cannabis did not indicate any involvement in drug dealing, he has a good employment history and his prospects of rehabilitation appear to be sound. Also, it is true that the plea of guilty was not made at the earliest opportunity, but he was entitled to a discount for the plea because he was initially charged as a principal and the State did not indicate a willingness to accept a plea of guilty as an accessory after the fact until about two weeks before the due date for commencement of the trial. The plea was made after negotiations between the parties.
The learned sentencing judge's observation that the appellant was not involved in the drug transaction itself is not, in substance, mitigatory, because if he had been involved he would have been charged as a principal offender. As I have mentioned, an accessory after the fact is liable on conviction to a fine not exceeding half of the fine, and to imprisonment for a term not exceeding half of the term, to which a person who commits the principal offence against s 6(1) of the Act is liable.
The appellant intentionally set out to endeavour to assist his brother in avoiding punishment for what the appellant believed was his brother's involvement in a very serious offence involving possession, with intent to sell or supply, of massive quantities of MDMA and methylamphetamine.
These drugs cause severe damage to countless individuals and society generally, and precipitate, or are associated with, a significant part of the criminal behaviour which is dealt with by the courts. The sentencing considerations of general and personal deterrence and appropriate punishment required the imposition of a substantial term of imprisonment. Although the learned sentencing judge imposed sentences at the upper end of the appropriate range, I am not persuaded that the sentences are manifestly excessive or that they were beyond the range of a proper exercise of his Honour's discretion.
Conclusion
In my opinion, the ground of appeal is without merit. I would therefore refuse to grant an extension of time to appeal.
MILLER JA: I agree with Buss JA.
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