Milenkovski v The State of Western Australia
[2014] WASCA 48
•28 FEBRUARY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MILENKOVSKI -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 48
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 20 & 28 NOVEMBER 2013
DELIVERED : 28 FEBRUARY 2014
FILE NO/S: CACR 224 of 2012
BETWEEN: STEVE MILENKOVSKI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :DERRICK DCJ
File No :IND 456 of 2012
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted after trial of one count of drug trafficking and one count of attempted drug trafficking - One count involved 2.675 kg of methlyamphetamine with a purity between 17% and 19% - The other count involved 4.983 kg of methlyamphetamine with a purity between 53% and 69% - Individual sentences of 12 years' imprisonment and 14 years 6 months' imprisonment - Total effective sentence of 17 years' imprisonment - Offences committed solely for very significant commercial gain - Appellant at the top of the Western Australian chain of distribution of illicit drugs - Manifest excess - Totality principle
Criminal law - Appeal against sentence - Appellant held in custody before sentencing under conditions materially more arduous than those applicable to the general prison population - Appellant a member of a motorcycle gang - Appellant's special confinement for his own protection from other prisoners - Appellant in need of protection because of grudges arising in the context of the illegal activities of rival criminal gangs - Whether the trial judge erred in declining to allow the appellant some leniency or a discount for the conditions of his incarceration before sentencing
Legislation:
Criminal Appeals Act 2004 (WA), s 31(3), s 31(4), s 39, s 40(1)(e)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(1), s 34(1)(a)
Sentencing Act 1995 (WA), s 8(1)
Result:
Application for leave to adduce additional evidence in the appeal granted
Leave to appeal on ground 1 refused
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr H K Dhanji SC
Respondent: Mr B Fiannaca SC
Solicitors:
Appellant: AHA Taylor Lawyers
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AB v The Queen [1999] HCA 46; (1999) 198 CLR 111
Aconi v The Queen [2001] WASCA 211
Bahn v The State of Western Australia [2008] WASCA 40
Barry v The State of Western Australia [2012] WASCA 175
Bekink v The Queen [1999] WASCA 160; (1999) 107 A Crim R 415
Civello v The State of Western Australia [No 2] [2008] WASCA 163
Clinton v The Queen [2009] NSWCCA 276
Cohen v The State of Western Australia [No 2] [2007] WASCA 279; (2007) 180 A Crim R 348
de la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Delovski v The Queen [2002] WASCA 88
Director of Public Prosecutions v Faure [2005] VSCA 91; (2005) 12 VR 115
Director of Public Prosecutions v OJA [2007] VSCA 129; (2007) 172 A Crim R 181
Galbraith v The State of Western Australia [2011] WASCA 70
Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19
Halmi v The State of Western Australia [2013] WASCA 229
Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260
Isaac v The Queen [2012] NSWCCA 195
Kitis v The State of Western Australia [2013] WASCA 34
Koncurat v The State of Western Australia [2010] WASCA 184
Lai v The State of Western Australia [2012] WASCA 181
Mikulic v The State of Western Australia [2011] WASCA 14
Mooney v The State of Western Australia [2007] WASCA 54
Neumann v The State of Western Australia [2013] WASCA 70
Ozan v The State of Western Australia [2013] WASCA 27
Penney v The State of Western Australia [2011] WASCA 71
Pham v The State of Western Australia [2011] WASCA 244
Quach v The Queen [1999] WASCA 210
R v Bangard [2005] VSCA 313; (2005) 13 VR 146
R v Brady [2005] SASC 277
R v Everett (1994) 73 A Crim R 550
R v Gooley (1996) 66 SASR 380
R v Kasulaitis [1998] 4 VR 224
R v Laws (No 2) [2000] NSWSC 885; (2000) 116 A Crim R 70
R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231
R v Males [2007] VSCA 302
R v Perez‑Vargas (1986) 8 NSWLR 559
R v Rostom [1996] 2 VR 97
R v Stockdale [2004] NSWCCA 1; (2004) 142 A Crim R 448
R v Tuivaga [2013] NSWSC 1626
R v ZMN [2002] VSCA 140; (2002) 4 VR 537
Ruvinovski v The State of Western Australia [2013] WASCA 204
Sabau v The State of Western Australia [2010] WASCA 3
The State of Western Australia v Hyder [2011] WASCA 256
The State of Western Australia v O'Kane [2011] WASCA 24
Wheeler v The Queen [No 2] [2010] WASCA 105
York v The Queen [2005] HCA 60; (2005) 225 CLR 466
Table of Contents
McLure P's reasons.................................................................................................................. 6
The sentencing proceedings
Ground 3
Buss JA's reasons...................................................................................................................... 9
The facts and circumstances of the offending: count 1
The facts and circumstances of the offending: count 3
The trial judge's findings as to the seriousness of the appellant's offending
Other findings made by the trial judge
The conditions of the appellant's detention in custody
The grounds of appeal
Ground 3: the appellant's application to adduce additional evidence in the appeal
Ground 3: the recasting of the ground of appeal
Ground 3: the State's affidavits in response
Ground 3: the State's submissions
Ground 3: the organisation of the balance of these reasons
Ground 3: High Court cases
Ground 3: New South Wales cases
Ground 3: Victorian cases
Ground 3: South Australian cases
Ground 3: Western Australian cases
Ground 3: distillation of relevant principles from the cases
Ground 3: should the additional evidence filed by the appellant and the State be admitted in the appeal?
Ground 3: its merits
Ground 1
Ground 2
Ground 3: should a different sentence be imposed?
Conclusion
Mazza JA's reasons................................................................................................................ 52
Schedule................................................................................................................................... 54
McLURE P: I agree with Buss JA that leave to appeal on ground 1 should be refused and the appeal dismissed. I agree with Buss JA's reasons on grounds 1 and 2. I state my own reasons on ground 3.
The background facts and other relevant information are detailed by Buss JA and not repeated here unless necessary for an understanding of these reasons. I propose to elaborate on the background to this appeal.
On 20 December 2012, the Appellant's Case in the sentence appeal was filed in this court. The solicitors on the record for the appellant were Michael Tudori & Associates. Mr David Grace QC signed the Appellant's Case. It contained three grounds of appeal, being that the individual sentences were manifestly excessive (ground 1), the total effective sentence infringed the first limb of the totality principle (ground 2) and that the sentencing judge failed to give mitigatory weight to the fact that the appellant had already served a significant period of his sentence in solitary confinement and was likely to serve the balance of his sentence in more arduous circumstances than the average prisoner (ground 3).
By notice sent on 11 September 2013, the parties were advised that the sentence appeal was listed for hearing on 20 November 2013. At some time in August 2013, solicitors in New South Wales, AHA Taylor Lawyers, commenced acting for the appellant. They filed a Lawyers Notice of Acting in the sentence appeal on 18 November 2013.
Two days before the hearing of the sentence appeal, the appellant applied to adjourn the hearing. The application was supported by an affidavit sworn by the appellant's new solicitor, Ali Abbas, on 15 November 2013. The affidavit in support of the adjournment application was deficient in material respects and did not provide proper grounds for adjourning the hearing. The application was referred to the hearing of the appeal on 20 November 2013. On that date counsel for the appellant, Mr Simon Watters, applied to adjourn the hearing to early 2014. He had been briefed at the 11th hour, had not been provided with the Appeal Books and was not in a position to make submissions on the merits of the appellant's sentence appeal. The appellant's conduct of the appeal was suggestive of an abuse of process. However, as the appellant's counsel had not been briefed to argue the appeal, the court adjourned the hearing to 28 November 2013.
At the commencement of the hearing on 28 November 2013, counsel for the appellant applied for leave to rely on an affidavit sworn by Mr Abbas on 27 November 2013 to which the respondent had not had an opportunity to respond. The affidavit contained hearsay evidence from the appellant relating to the nature and conditions of his custody before and after sentence. Counsel for the appellant advised the court that there was a significant inaccuracy in the affidavit which caused him to abandon the second aspect of ground 3 relating to the post‑sentencing position. The respondent objected to the admission of the evidence on the basis that it wished to have the opportunity to challenge its accuracy.
Having regard to the history of the sentence appeal, a further adjournment was out of the question. The court did not rule on the appellant's application for leave to adduce additional evidence at the hearing of the appeal. The respondent was given leave to file answering affidavits which the court would take into account in considering the appellant's application for leave. The respondent filed two affidavits sworn on 6 December 2013 by Peter Anderson and Luke Thatcher.
I would grant leave to rely on the affidavits only because they add to and clarify the information that was before the sentencing judge. Additional evidence of events prior to sentencing is admissible under s 40(1)(e) of the Criminal Appeals Act 2004 (WA).
There are significant conflicts in the information conveyed by the appellant to his solicitor and the information in the affidavits filed by the respondent. For example, the appellant's use of the expression 'solitary confinement' is an inaccurate description of the multi‑purpose units and special handling units described in detail in the affidavits of Messrs Anderson and Thatcher. The evidence filed by the respondent is more detailed, more likely to be accurate and is to be preferred. In particular, I prefer the evidence of Mr Anderson in relation to the multi‑purpose unit in Casuarina. He states:
4.In relation to [the appellant's] time in the MPU, he was under the DCS 'Operational Instruction 4' regime. This regime entitled him to exercise in the exercise area attached to his cell for a minimum of one hour per day. The MPU managers had the authority to extend this time if the resources allowed them to do so. [The appellant] was also entitled to daily visits, due to his status on remand and had access to the telephone at various times during the day. The MPU managers would facilitate as much access to the telephone as they could, dependent on the workload of the unit. In addition, [the appellant] was issued all of his property entitlements during that time.
The sentencing proceedings
The appellant was convicted on 20 July 2012. On that date he was remanded in custody to appear on 14 September 2012 for sentencing with his co‑offenders, Paul Da San Martino and David Tanevski. On the afternoon before sentencing, the appellant terminated the retainer of his trial solicitors and trial counsel. The week before sentencing the appellant's trial solicitors filed written sentencing submissions signed by trial counsel. Paragraphs 6 ‑ 9 of the written submissions (which are set out in Buss JA's reasons) referred to the conditions of his custody up to the time of sentencing in imprecise and general terms.
The sentencing of the appellant and his co‑offenders proceeded as scheduled. The appellant was not legally represented at the hearing. Counsel for the State sought an indication from the sentencing judge whether the matters in pars 6 ‑ 9 were likely to make any difference in sentencing. The State had investigated those matters but had not made disclosure because 'things had moved on a bit rapidly' (ts 3724). The sentencing judge asked and the prosecutor confirmed that the reason why the appellant had been held in 'solitary confinement' was to protect him from members of rival motorcycle gangs who might also be in prison. The sentencing judge said:
I don't think that factor is going to impact to any significant extent on the sentence imposed (ts 3725).
The sentencing judge's reasons on this subject (which are set out in full in Buss JA's reasons) suggest that his focus was on anticipated prison conditions following sentence and that he did not turn his attention to the prison conditions of his detention up to the time of sentence. I will assume that to be the case.
Ground 3
As the appellant relied on his conditions in custody prior to sentencing as a mitigating factor, it was incumbent on the sentencing judge to consider that issue.
However, the failure to consider that issue will only constitute a material error enlivening this court's power to intervene if it is a mitigating factor to which some weight must be given. A mitigating factor is defined in s 8(1) of the Sentencing Act 1995 (WA) to mean a factor which, in the court's opinion, decreases the culpability of the offender or decreases the extent to which the offender should be punished.
Otherwise, the amount of weight to be given to a mitigating factor is in the discretion of the sentencing judge.
I have had the considerable advantage of the review of the case law undertaken by Buss JA. That review discloses, not unsurprisingly, that whether conditions in custody are mitigating depends on all the circumstances of the case. A necessary but not itself sufficient condition is that there be material departures from the conditions applicable to the general prison population (usual custodial conditions). Material departures from usual custodial conditions will ordinarily be regarded as mitigating if that is a consequence of another mitigating factor that advances the public interest, such as informing on third parties or other cooperation with authorities. At the other extreme, material departures from usual custodial conditions for prison disciplinary reasons will not ordinarily be mitigating.
I am not persuaded that the pre‑sentence conditions in which the appellant was held in custody is a mitigating factor in the circumstances of this case. First, the time spent separated from the main prison population was relatively short when regard is had to the proper order of magnitude of the aggregate sentence for the appellant's offending. Second, based on the evidence of Messrs Anderson and Thatcher, the conditions of the appellant's custody in the multi‑purpose unit (a 12‑cell secure management unit) and the special handling unit (a 16‑cell secure unit) do not appear unduly harsh or unreasonable. Third, the extent of the departure from usual custodial conditions for a person on remand or prior to sentence is not clear. Finally, the appellant was separated from the general prison population for his own protection because, being a member of an outlaw motorcycle gang, his safety was at risk from other inmates who were members of rival motorcycle gangs. The evidence suggests that the appellant's membership of the motorcycle gang was voluntary.
Against that broad factual background, the steps taken by prison authorities to protect the appellant from risks directly associated with his voluntary and continuing membership of a motorcycle gang is not a mitigating factor. Even if I am wrong in that regard, the weight to be attached to it would not cause me to conclude that a different individual or total sentence should be imposed.
BUSS JA: This is an appeal against sentence.
The appellant, Yavuz Ozan, David Tanevski, Mark Kitis, Paul Da San Martino and Hao Bi were charged on indictment with one or more offences against the Misuse of Drugs Act 1981 (WA) (the Act).
The counts in the original indictment alleged:
(a)Count 1: on 4 December 2009, at Stirling, Mr Ozan supplied a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the Act.
(b)Count 2: on 4 December 2009, at Stirling, the appellant and Mr Da San Martino had in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it another, contrary to s 6(1)(a) of the Act.
(c)Count 3: on 25 February 2010, at North Perth, Mr Ozan attempted to supply a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) read with s 33(1) of the Act.
(d)Count 4: on 25 February 2010, at Yokine, Mr Bi attempted to supply a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) read with s 33(1) of the Act.
(e)Count 5: on 25 February 2010, at Yokine and elsewhere, the appellant, Mr Kitis and Mr Tanevski attempted to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the Act.
(f)Count 6: on 25 February 2010, at Stirling, Mr Kitis had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act.
In early August 2011, Mr Ozan and Mr Kitis entered pleas of guilty to the offences alleged against them.
The appellant, Mr Tanevski, Mr Da San Martino and Mr Bi maintained pleas of not guilty to the offences alleged against them.
On 16 April 2012, the State filed a new indictment against the appellant, Mr Tanevski, Mr Da San Martino and Mr Bi. Count 2 on the original indictment became count 1 on the new indictment. Count 5 on the original indictment became count 3 on the new indictment.
In the balance of these reasons I will refer to the counts against the appellant in the new indictment.
On 20 July 2012, after a trial in the District Court before Derrick DCJ and a jury, the appellant was convicted on each count.
On 14 September 2012, the trial judge sentenced the appellant to individual terms of imprisonment of 12 years on count 1 and 14 years 6 months on count 3. His Honour ordered that the appellant serve 2 years 6 months of the term for count 1 before the term for count 3 begins. The total effective sentence was therefore 17 years' imprisonment. The individual sentence for count 1 and the total effective sentence were backdated to 11 December 2010. A parole eligibility order was made.
The facts and circumstances of the offending: count 1
During the weeks preceding 4 December 2009, the appellant negotiated with Li Zhang to purchase a quantity of methylamphetamine. The negotiations were conducted by coded communications on prepaid mobile telephones. Mr Zhang was a member of an illicit drug distribution organisation in New South Wales. The principal of the organisation was Hakan Ayik. Mr Ayik was known to the appellant and others who dealt with him as 'mother'. Mr Zhang was a trusted and very senior representative of Mr Ayik.
The appellant was the principal of a drug distribution organisation in Western Australia. He used other people to carry out the 'hands‑on work' of obtaining illicit drugs and paying for them.
On or about 16 or 17 November 2009, the negotiations between the appellant and Mr Zhang were concluded. The appellant ordered six pounds (about 2.688 kg) of methylamphetamine at a price of $45,000 a pound. The total purchase price was $270,000.
Arrangements for transportation of the methylamphetamine from Sydney to Perth involved the purchase of a car in Sydney, the hiding of the drugs in the car and the transport of the car on a truck by Toll Transport. On arrival in Perth, the car would be collected by a representative of Mr Zhang. That person would remove the drugs from the car and deliver the drugs to a representative of the appellant. The appellant's representative would then deliver the drugs to the appellant or sell and supply the drugs to others in accordance with his instructions.
Pursuant to these arrangements, Mr Ozan, who was a representative of Mr Zhang, purchased a car in Sydney under a false name. On 20 November 2009, Mr Ozan met with Mr Zhang. One or both of them hid the methylamphetamine ordered by the appellant behind an internal panel in the car. The drugs were packaged in six separate clipseal bags. Each bag contained about 1 pound or 448 g of methylamphetamine. Mr Ozan then drove the car to Toll Transport in Sydney and arranged, again under a false name, for the car to be transported to Perth. On 24 November 2009, the car departed Sydney for Perth on a truck.
On 1 December 2009, the appellant flew to Sydney. He had a meeting with Mr Zhang and then another meeting with Mr Ayik. The purpose of these meetings was to make and confirm the final arrangements for the transaction. The trial judge was unable to determine how payment for the methylamphetamine was made or when it was made.
On 4 December 2009, Mr Ozan flew to Perth under a false name. He collected the car from a Toll Transport depot near the airport. Mr Ozan drove the car to the Novotel Hotel at Adelaide Terrace in Perth. On arrival at the hotel, he retrieved the methylamphetamine from the car and reserved a room at the nearby Sheraton Hotel under a false name. He then travelled by taxi to a bus stop near the Charles Hotel in North Perth. Mr Ozan took the drugs with him.
The appellant had arranged for Mr Da San Martino to collect and store the methylamphetamine. Mr Da San Martino was to meet Mr Ozan at the Charles Hotel and travel with him to Mr Da San Martino's house in Stirling where the drugs would be stored.
In accordance these arrangements, on the morning of 4 December 2009 Mr Da San Martino drove to the bus stop near the Charles Hotel and collected Mr Ozan. He then drove to his house. On arrival, Mr Da San Martino or Mr Ozan or both of them hid the drugs in Mr Da San Martino's barbecue in the garage of his house. Mr Da San Martino then returned with Mr Ozan to the Charles Hotel. Mr Ozan went to the airport and flew to Sydney.
About two hours after the methylamphetamine was hidden in Mr Da San Martino's barbecue, police arrived at his house and executed a search warrant. They found the drugs. They also found $47,300 cash, clipseal bags, a set of electronic scales with traces of MDMA, cocaine and methylamphetamine on its surfaces, a heat sealer and a money counter.
The methylamphetamine found by the police weighed 2.675 kg and had a purity ranging from 17% to 19%. The trial judge found that the total value of the drugs in the Perth market at the time of seizure was in the vicinity of $1.15 million. However, his Honour was not satisfied beyond reasonable doubt that the appellant's intention was to sell the drugs in one‑ounce lots and, by that means, obtain $1.15 million for them. On the basis of the purchase price the appellant had agreed to pay for the drugs and expert evidence from a police officer, his Honour was satisfied beyond reasonable doubt that the appellant intended to sell the drugs for at least about $80,000 a pound; that is, for a total of about $480,000.
On 4 December 2009, Mr Da San Martino was arrested and charged. The appellant was not then arrested and charged for his involvement in this offence, but he was charged on 4 December 2009 with unlawfully being in possession of a firearm. The police decided to release the appellant and continue with an investigation into his activities.
The facts and circumstances of the offending: count 3
During several days in February 2010, the appellant negotiated with Mr Ayik to purchase another quantity of methylamphetamine. Once again, the negotiations were conducted by coded communications on prepaid mobile telephones.
The appellant agreed to purchase 5 kg of methylamphetamine from Mr Ayik at a price of $280,000 a kilogram. The total purchase price was $1.4 million.
Mr Ayik agreed to provide the methylamphetamine on credit. The appellant was to pay the purchase price after he had received and on‑sold the drugs. While the appellant was negotiating with Mr Ayik, Mr Zhang and Mr Ozan were making arrangements for the completion of the transaction. These arrangements included the purchase by Mr Ozan in Sydney, under a false name, of another car.
On 11 February 2010, Mr Ozan met with Mr Zhang. They concealed almost 5kg of methylamphetamine in the car's spare tyre. It was divided into five quantities with each quantity weighing about 1 kg. Each quantity was placed in a plastic bag and vacuum sealed.
On 12 February 2010, Mr Ozan drove the car to Toll Transport in Sydney and arranged for Toll to transport the vehicle to Perth. The car departed Sydney for Perth on 15 February 2010.
On 16 February 2010, police intercepted the car while it was at Toll Transport's depot in Adelaide. The police removed the methylamphetamine from the spare tyre and replaced it with rock salt. Subsequent analysis of the drugs revealed they weighed 4.983 kg and had a purity ranging from 53% to 69%.
On 18 February 2010, the appellant flew to Sydney. Some of his associates were in Sydney with him including Mr Tanevski.
On 23 February 2010, Mr Ayik told the appellant, in a coded communication by mobile telephone, that the car with the methylamphetamine would arrive in Perth by the end of the week. Also, on 23 February 2010, the appellant met with Mr Ayik to confirm the final arrangements for the transaction.
On 25 February 2010, Mr Ozan flew to Perth under a false name. He collected the car from Toll Transport's depot near the airport. At that time the appellant was arranging with Mr Zhang, in coded communications by mobile telephone, for Mr Zhang's representative in Perth to deliver the car to the appellant's representative.
On 25 February 2010, Mr Ozan collected the car and, on Mr Zhang's instructions, drove it to a car park on Guildford Road in Bayswater. He then travelled by taxi to a bus stop near the Charles Hotel where he met Mr Zhang's representative, Mr Bi. Mr Ozan delivered the car keys to Mr Bi, who travelled to the car park on Guildford Road and took possession of the car.
In the meantime, the appellant made arrangements with Mr Zhang for the car to be delivered to the Dog Swamp Shopping Centre for collection by the appellant's representative.
On the afternoon of 25 February 2010, the appellant met on two occasions with Mr Tanevski and Mr Kitis and instructed them to collect the car from Mr Bi later that day. The appellant told them the methylamphetamine would be hidden in the car's spare tyre.
On 25 February 2010 at about 6.00 pm, Mr Bi, in accordance with Mr Zhang's instructions, drove the car to the car park at the Dog Swamp Shopping Centre. Some time before 6.00 pm on that day, Mr Tanevski, in accordance with the appellant's instructions, drove to Mr Kitis' house. Mr Tanevski then drove with Mr Kitis to the shopping centre to meet Mr Bi. During this journey the appellant sent instructions to Mr Tanevski by text messages on a mobile telephone. On arrival at the shopping centre, Mr Tanevski remained in his vehicle in the car park while Mr Kitis, in accordance with the appellant's instructions, met Mr Bi and took possession of the keys to the car they thought contained the methylamphetamine.
Mr Bi was arrested by the police a short time later. At about the time of the handover of the car he thought contained the methylamphetamine, the appellant was driving in and around the car park of the Dog Swamp Shopping Centre. He was monitoring developments. Mr Kitis, acting on the appellant's instructions, drove the car they thought contained the drugs to Mr Kitis' brother's house in Stirling. Mr Tanevski followed in his vehicle.
When Mr Kitis and Mr Tanevski arrived at the house of Mr Kitis' brother, Mr Kitis obtained the keys to a shed on the property. Mr Tanevski and Mr Kitis removed the spare tyre from the car and hid it in the shed, pending further instructions from the appellant. Shortly after, police arrived and searched the property of Mr Kitis' brother. They found the spare tyre.
On 25 February 2010, the appellant was arrested and charged.
The trial judge found that the total value of the methylamphetamine in the Perth market at the time of seizure was in the vicinity of $2.49 million. However, his Honour was not satisfied beyond reasonable doubt that the appellant's intention was to sell the drugs in one‑ounce lots and, by that means, obtain $2.49 million for them. On the basis of the purchase price the appellant had agreed to pay for the drugs and expert evidence from a police officer, his Honour was satisfied beyond reasonable doubt that the appellant intended to sell the drugs for an amount considerably in excess of $1.5 million.
The trial judge's findings as to the seriousness of the appellant's offending
The trial judge made findings in relation to the seriousness of the appellant's offending as follows.
First, both offences, especially count 3, involved the appellant possessing or attempting to possess large quantities of methylamphetamine. He intended to distribute the drugs into the community.
Secondly, the methylamphetamine the subject of count 3 had a relatively high purity level. If the appellant had succeeded in obtaining possession of and selling the drugs it was inevitable they would have been diluted, either by the appellant or those to whom he sold the drugs. His Honour was satisfied beyond reasonable doubt that the methylamphetamine the subject of count 3 was of a reasonably high quality.
Thirdly, the appellant committed the offences solely for very significant commercial gain. His only motive for engaging in the illicit drug trade was to make large sums of money for his own benefit or for the benefit of others associated with him.
Fourthly, although the appellant was not as high in the drug trade hierarchy as Mr Ayik, who was clearly an importer of prohibited drugs from overseas and at the very top of the chain of distribution in Australia, the trial judge was satisfied beyond reasonable doubt that the appellant was at the top of the chain of distribution in Western Australia. He was in charge of a significant Western Australian enterprise. His operations were well organised. He had numerous people working for him at different levels in the enterprise. The appellant had a network of contacts and associates which enabled him to disseminate large amounts of methylamphetamine into the community within a relatively short period. He was, in short, a top level professional drug dealer who derived very large financial rewards from his illegal conduct.
Fifthly, as to count 3, the appellant committed this offence despite the police having scuttled the transaction the subject of count 1. The offence the subject of count 1 resulted in Mr Da San Martino, who was the appellant's wife's cousin, being charged with a very serious offence and consequently facing the prospect of conviction and a very lengthy term of imprisonment. Nevertheless, the appellant proceeded to commit the offence the subject of count 3. By committing count 3, the appellant placed his close friend and cousin, Mr Tanevski, at risk of suffering the same fate as Mr Da San Martino. Mr Da San Martino's wife was Mr Tanevski's sister.
Accordingly, the appellant's conduct in committing count 3 demonstrated his determination to engage in serious criminal conduct for his own benefit, despite the possible consequences for others.
In summary, his Honour was of the view that the appellant's criminality in relation to counts 1 and 3 involved an extremely high degree of culpability. His offences were close to the top end of the range of seriousness for offences of their type.
Other findings made by the trial judge
The trial judge referred in his sentencing remarks to the appellant's personal circumstances and antecedents.
The appellant was born on 4 December 1977. He was aged 34 at the time of sentencing.
The appellant's father died when the appellant was about 15, but otherwise he had an unremarkable childhood.
The appellant completed year 12 at school and spent two years studying for a business degree at university.
The appellant has had a variety of occupations. After leaving university he spent three years working in a delicatessen. He then worked in a motor vehicle seat trimming business. At the time of sentencing he was a partner in a butcher shop business and a small farming operation. He also had an interest in a tiling business. The appellant told the author of a pre‑sentence report that his financial status was 'comfortable'.
The appellant has no physical or mental health issues. He told the author of the pre‑sentence report that he is an occasional social drinker and he experimented with cocaine use two years previously. He denied any current illicit substance use. The appellant explained that in his view 'a healthy mind and body cannot be infused with illicit substances'.
The appellant admitted to the author of the pre‑sentence report that he is a 'patched member' of an outlaw motorcycle gang. He denied, however, that he had a leadership role. The gang is the Comancheros.
The State took issue with the appellant's denial of a leadership role in the Comancheros. It was submitted on behalf of the State that at all material times the appellant was the leader of the Perth chapter of the Comancheros. On the State's submission, this leadership role enabled the appellant to obtain the cash necessary to deal in illicit drugs in the manner he did.
However, his Honour did not make a finding on this issue. He said the appellant's 'leadership of the Comancheros, if you were the leader, or your membership of the gang' was not 'of any particular significance in determining your overall culpability for committing [these] offences' (ts 3763).
The appellant did not have a prior criminal record of any relevance. The trial judge took that fact into account.
His Honour found that the appellant was 'clearly unrepentant' and not remorseful for his offending (ts 3764). He was unwilling to accept responsibility for his criminal conduct.
The trial judge said that if the appellant remained a member of the Comancheros, whether in a leadership capacity or not, he would be at a significant risk of reoffending upon his release from custody (ts 3766 ‑ 3767). However, his Honour was of the view that this risk of reoffending, and the associated need for personal deterrence, were not 'particularly significant factors in determining the appropriate sentence' (ts 3767). His Honour reasoned that the seriousness of the appellant's criminal conduct, and the need for general deterrence, meant that in any event the appellant would inevitably be sentenced to a very lengthy term of imprisonment. In other words, given the length of the custodial term which must be imposed on the appellant regardless of his risk of reoffending, this risk did not justify or require the imposition of an even longer term.
The material before his Honour included written references from family members or other people who had known the appellant for a long time. These people spoke well of him. His Honour observed, however, that the people concerned only knew 'a certain side' of the appellant, and had not listened to the evidence adduced during the nine‑week trial (ts 3764).
The conditions of the appellant's detention in custody
Defence counsel filed and served written submissions, before the sentencing hearing, which dealt with, amongst other things, the conditions of the appellant's confinement in custody. The submissions assert:
6.[The appellant] was arrested on 25 February 2010 where he was remanded in Casuarina Prison. For a large portion of his pre‑trial remand [the appellant] was held in the isolation wing of Casuarina Prison, before being moved to Bunbury Regional Prison on 9 March 2011.
7.[The appellant] was granted bail on 3 October 2011, where he was kept on home detention up until the commencement of trial.
8.[The appellant] was incarcerated at Casuarina Prison following the end of trial on 20 July 2012. Alike [sic] his previous time in Casuarina he has been remanded in solitary confinement.
9.In solitary confinement [the appellant] is deprived [of] the opportunity to socially interact with inmates, he was originally limited to one phone call per day, however, this has since changed. Overall [the appellant] is kept in solitude for most of his days.
During oral submissions at the sentencing hearing, the trial judge raised the assertions in those submissions with the prosecutor. The following exchange occurred:
Now, your Honour, we'd obviously prepared a response to his previous lawyer's written submissions about some of the matters they raised. Perhaps, in the circumstances, it is actually best if I, sort of, obtain some indication from your Honour whether it's likely to make any difference at all because there are some matters we would have responded to and that includes matters that we've had to make our own inquiries about. One of them that's referred to is the solitary confinement at this stage by him and what that might mean for his sentence generally in the years to come.
DERRICK DCJ: Have you found out about that?
HOLLINGSWORTH, MR: We have but that hasn't been disclosed because, of course, by the time we found out about it things had moved on a bit rapidly for us to start making proper disclosure.
DERRICK DCJ: Am I right in inferring that the reason why [the appellant] has been held in solitary confinement is to protect him from members of rival motorcycle gangs who might also be in prison?
HOLLINGSWORTH, MR: Yes.
DERRICK DCJ: Yes. All right.
HOLLINGSWORTH, MR: And so, therefore, our submission is that the prior associations are what has contributed to that. In fairness to him, I can indicate in no way has he conducted himself in any negative way in prison which would warrant him being treated in that way. It is only because of the prior associations and that the prisons are exercising, clearly, their duty of care over anyone in that situation. And, of course, he's not the only one incarcerated in our prisons that this applies to. There's a number, obviously.
But the other matter that was raised and which, again, if it's going to make a difference to sentence which we could lead evidence about is that, obviously, once the sentence is imposed, fixed sentence, the prisons obviously work towards assessing security ratings and where that person might be able to be transported eventually, as opposed to being kept in the current regime at our maximum security prison.
DERRICK DCJ: I don't think that factor is going to impact to any significant extent on the sentence imposed.
HOLLINGSWORTH, MR: Thank you, your Honour (ts 3724 ‑ 3725).
His Honour returned to this issue in his sentencing remarks:
In [defence counsel's] submissions, there is no attempt to explain why you are being kept in solitary confinement, however, I've been told by the State and I accept that the reason for your solitary confinement is related to your membership of the Comancheros. That is, you are being kept in solitary confinement to protect you from members from other rival outlaw motorcycle gang members who are also in prison.
It is not clearly stated in the submissions why your conditions of detention are referred to, however, I will assume that they are referred to because it is contended, or at least was contended by your former solicitors on your behalf, that the conditions of your detention constitute a mitigatory factor.
…
I do not think that it is appropriate in your case to reduce any sentence to be imposed on you on the basis that your time in prison will be more arduous than would usually be the case and I say that for these reasons.
First, you have put no evidence before me which indicates that once you are sentenced, you are going to be kept in solitary confinement at Casuarina or any other prison for any significant period of time. Accordingly, for me to sentence you on the basis that your time in prison will be more arduous than usual and to treat this as a mitigatory factor of any significance would be to engage in a speculative exercise.
Secondly, even assuming that you will be subjected to harsher than usual conditions, I do not think that this entitles you to any discount in sentence, given that the reason for your harsher conditions is that you're a member of an outlaw motorcycle gang (ts 3765 ‑ 3766).
The grounds of appeal
The appellant relies on three grounds of appeal.
Ground 1 alleges that each of the individual sentences was manifestly excessive.
Ground 2 alleges that the total effective sentence infringed the first limb of the totality principle.
Ground 3 alleges that his Honour erred by failing to give mitigatory weight to the facts that the appellant had already served a significant period of his sentence in solitary confinement and that it was likely his sentence would be served in more arduous circumstances than the average prisoner.
On 15 June 2013, Mazza JA granted leave to appeal on grounds 2 and 3 and referred the application for leave to appeal on ground 1 to the hearing of the appeal.
It is convenient to consider ground 3 first, then ground 1 and finally ground 2.
Ground 3: the appellant's application to adduce additional evidence in the appeal
At the hearing of the appeal, counsel for the appellant made an oral application for leave to adduce additional evidence in the appeal, namely an affidavit sworn 27 November 2013 by the appellant's Sydney solicitor, Ali Abbas.
The court reserved its decision on the application and made orders permitting the State to file and serve affidavits in response.
In his affidavit Mr Abbas asserts in substance that:
(a)In late February and early March 2010 the appellant spent 7 days in 'solitary confinement' in Hakea Prison.
(b)Between about mid‑April 2010 and mid‑November 2010 the appellant spent 218 days in 'solitary confinement' at Casuarina Prison.
(c)Between about late July 2011 and 3 October 2011 the appellant was held in 'solitary confinement' in Hakea Prison.
(d)Between 20 July 2012 and 14 September 2012 the appellant was held in 'solitary confinement' in prison.
(e)Since 5 October 2012 the appellant has been held in 'solitary confinement' in prison.
(f)The conditions in 'solitary confinement' for the appellant while he was on remand prior to trial or on 'appeals remand' were these:
1.Only allowed out of his cell for 1 hour per day to attend a visit from family, friend or legal representative. If there is no visit, he must remain in his cell.
2.Only allowed to make 1 phone call per day (Approx 6 minutes).
3.Not allowed to use the exercise yard, gymnasium, library or any other facilities.
4.Not allowed to have any contact with any other inmates.
5.Cannot undertake any programs or courses provided by corrective services.
(g)The conditions in 'solitary confinement' for the appellant while serving his sentence are:
1.Allowed out of his cell from the morning to 3.30 pm.
2.Locked in his cell for 1 hour during lunch time.
3.Only allowed to make 1 phone call per day (Approx 6 minutes).
4.Allowed to use the exercise yard, gymnasium, library and other facilities.
5.Not allowed to have any contact with any other inmates.
6.Can undertake programs and courses offered by corrective services.
The assertions in Mr Abbas' affidavit are based on conversations he had with the appellant on 26 and 27 November 2013.
At the hearing of the appeal, counsel for the appellant informed the court of a material error in Mr Abbas' affidavit. Counsel explained:
There is an inaccuracy and a reasonably significant one in that it states that the appellant is currently on segregation or was move[d] to segregation and has remained on segregation. He was, in fact, moved from segregation two weeks ago and is, in fact, no longer on segregation. Your Honours, that has some significance in terms of the ground [that is, ground 3] itself (appeal ts 16).
Counsel for the appellant confirmed his understanding that since about mid‑November 2013 the appellant had been in the general prison population.
Ground 3: the recasting of the ground of appeal
At the hearing of the appeal, counsel for the appellant recast ground 3. He said ground 3 'necessarily shifts from a ground in relation to the necessity to predict future conditions of incarceration to one, at least as at today's date, [that] relies on the past conditions of incarceration' (appeal ts 16).
Ground 3: the State's affidavits in response
On 12 December 2013, the State filed an affidavit of Peter Anderson sworn 6 December 2013 and an affidavit of Luke Thatcher also sworn 6 December 2013.
Mr Thatcher is the Assistant Superintendent Operations at the Department of Corrective Services.
Mr Thatcher annexed to his affidavit, relevantly, a document which set out details of the appellant's placements within the prison system since his arrest on the charges in question. The document distinguishes between the 'Mainstream Unit', the 'MPU' (being the Multi‑Purpose Unit) and the 'SHU' (being the Special Handling Unit). I have reproduced this document in the schedule to these reasons.
Mr Thatcher said, in substance:
(a)The Mainstream Unit holds the general prison population.
(b)The MPU or Multi‑Purpose Unit is a 12‑cell secure management unit which houses prisoners not suitable for mainstream placement for a variety of reasons. The Department has established procedures for the management of prisoners who require protection from other prisoners for any period of time during imprisonment.
(c)The SHU or Special Handling Unit is a 16‑cell secure unit at Casuarina Prison which is set aside for the confinement of prisoners who pose a major threat to the prison system. These are prisoners who are considered to pose a significant and ongoing risk of escape or to the security or good order of a prison or prisons, or a continued and serious threat to staff, visitors or other prisoners. Prisoners in this unit are confined separately from and, where appropriate, managed differently from, other prisoners for any period of time they are regarded as posing that level of risk or threat.
Mr Anderson is the Assistant Superintendent Special Units at Casuarina Prison. He gave this evidence in relation to the appellant's time in custody at Casuarina Prison:
3.Since [the appellant] has been in custody he has spent time in two of the Special Units at Casuarina Prison, being the Multi Purpose Unit (MPU) and the Special Handling Unit (SHU).
4. In relation to [the appellant's] time in the MPU, he was under the DCS 'Operational Instruction 4' regime. This regime entitled him to exercise in the exercise area attached to his cell for a minimum of one hour per day. The MPU managers had the authority to extend this time if the resources allowed them to do so. [The appellant] was also entitled to daily visits, due to his status on remand and had access to the telephone at various times during the day. The MPU managers would facilitate as much access to the telephone as they could, dependent on the workload of the unit. In addition, [the appellant] was issued all of his property entitlements during that time.
5.Following placement in the west side of the SHU on 19 September 2012, [the appellant] was elevated to Level 1 Gratuity Level on 20 September 2012 as a cleaner. At this level, [the appellant] had full access to the gymnasium equipment located in the SHU when it was unlocked. As a cleaner, [the appellant] was required to maintain hygiene levels within the kitchen area as well as other tasks relevant to his gratuity level, including the preparation of meals for the prisoners located in the west side of SHU.
6. In the SHU [the appellant] was out of his cell for the majority of the day and only secured in his cell at lunch times or during operational lockdowns. [The appellant] was entitled to daily visits and his full property entitlements as he had been in the MPU.
7.On 4 February 2013, [the appellant] was transferred to the east side of the SHU. The east side of the SHU provides prisoners with various employment opportunities and gratuity levels.
8.On 13 February 2013, [the appellant] was placed on Level 3 gratuities and elevated to Level 1 on 12 May 2013. Whilst located in the east side of SHU, [the appellant] has had the additional benefit of being able to process and cook his own meals as well as access to gymnasium equipment and full property entitlements. [The appellant] quickly became the main cook for that side of SHU and provided meals for the other prisoners also located on that side on most, if not all occasions.
9.[The appellant] is no longer in the special units. He was transferred to the mainstream unit on 14 November 2013 and still remains in that unit.
Ground 3: the State's submissions
Counsel for the State submitted that the appellant was not held in 'solitary confinement', but in special units for his own protection.
Counsel noted that, at the sentencing hearing, defence counsel had failed to put evidence before his Honour as to the precise conditions under which the appellant was imprisoned and as to whether (and, if so, to what extent) they were more arduous than the conditions applicable to the mainstream prison population.
It was submitted that the trial judge did not err in deciding, on the assumption that the appellant would be subject to harsher than usual conditions, that no leniency or discount in the sentencing outcome should be given to him on that account.
At the hearing of the appeal, counsel for the State said that, on the basis that the appellant's confinement in the special units was for the purpose of providing him with protection against members of other motorcycle gangs within the prison population, the confinement 'ought to be regarded, in fact, as some kind of advantage [to the appellant] rather [than a] disadvantage in terms of hardship' (appeal ts 37).
According to counsel, the appellant had voluntarily chosen to be a member of a motorcycle gang; membership of this gang facilitated the appellant's offending and was a significant risk factor for future offending; and the appellant knew while he was offending that, if he were apprehended and held in custody, he may be subjected to physical violence by other criminals held in prison.
It was argued that, in these circumstances, the appellant was entitled to protection within the prison system, but that protection came at the price of greater restriction on his liberty within the system (appeal ts 40 ‑ 41). Counsel added that 'it would be wrong, as a matter of principle, for [the appellant] to … gain an advantage', namely some leniency or a discount in the sentencing disposition, 'because of the fact that he may need to be protected from … opposing gangs' if he should be apprehended and convicted for his unlawful activities and sentenced to imprisonment (appeal ts 41).
Ground 3: the organisation of the balance of these reasons
It is well‑established that a sentencing judge, in determining the sentencing outcome in a particular case, must take into account, amongst other things, any subjective circumstances of an offender (as distinct from the prison conditions in which the offender is held) that may make imprisonment a materially harsher experience for him or her than for offenders generally. These subjective circumstances include, for example, advanced age, physical or mental ill health or disabilities, and a lack of fluency in the English language.
Also, sentencing judges have occasionally made allowance in the sentencing outcome for the fact that a particular offender will be subject to prison conditions that are materially more arduous than normal, including where the offender will be held in lockdown conditions, solitary confinement or protective custody.
However, the detention of an offender in solitary confinement or other punitive action taken because of the offender's breaches of prison rules or disciplinary requirements is not a matter which a sentencing judge is required to take into account. See R v Brady [2005] SASC 277 [46] (Duggan J, Perry & Sulan JJ agreeing).
In the balance of my reasons on ground 3 I will examine a number of cases which have dealt with sentencing where an offender has been, or is likely to be, subject to prison conditions that are materially more arduous than normal, other than for reasons attributable to breaches of prison rules or disciplinary requirements.
I will then distil relevant principles from the weight of authority, decide whether the additional evidence filed by the appellant and the State should be admitted in the appeal, and apply the relevant principles to the facts and circumstances of the present case.
Ground 3: High Court cases
In AB v The Queen [1999] HCA 46; (1999) 198 CLR 111, a majority of the High Court (Gummow, Kirby & Callinan JJ; McHugh & Hayne JJ dissenting) allowed an appeal against sentence by a former Marist Brother teacher who was convicted of multiple sex offences against 15 boys and girls at schools where he was a teacher. He was sentenced to a total effective term of 18 years' imprisonment with a total minimum term of 13 years 6 months. Kirby J noted it was undisputed that 'the appellant would have to spend his time in custody in conditions of protection against contact with, and retaliatory conduct by, other prisoners' [73]. His Honour observed:
[I]t is well recognised in England (R v Lowe (1977) 66 Cr App R 122 at 126; R v Davies (1978) 68 Cr App R 319) and in Australia (R v Cartwright (1989) 17 NSWLR 243 at 255) that every year in protective custody is equivalent to a significantly longer loss of liberty under the ordinary conditions of prison [105].
In York v The Queen [2005] HCA 60; (2005) 225 CLR 466, the primary judge (Atkinson J) sentenced the appellant to 5 years' imprisonment for various drug related offences. The sentence was ordered to be wholly suspended. The Court of Appeal of Queensland allowed a prosecution appeal on the ground that the sentence was manifestly inadequate. The High Court reversed the decision of the Court of Appeal. The appellant had provided substantial assistance to law enforcement authorities in connection with the investigation and conviction of a man for murder. There was a very real danger that she would be killed if she were imprisoned.
Gleeson CJ noted that it is common sentencing practice 'to extend leniency, sometimes very substantial leniency, to an offender who has assisted the authorities, and, in so doing, to take account of any threat to the offender's safety, the conditions under which the offender will have to serve a sentence in order to reduce the risk of reprisals, and the steps that will need to be taken to protect the offender when released' [3].
The Court of Appeal, over the offender's objection, received evidence, which had not been before the sentencing judge, from a departmental officer as to the practical capacity of the prison authorities to protect the offender from danger in prison. Gleeson CJ commented:
It is one thing for a court to hear evidence of the circumstances in which a person will serve a term of imprisonment, perhaps involving close protection and isolation, in order to take that into account in fixing a sentence of an appropriate length (See, eg, R v Burchell (1987) 34 A Crim R 148 at 151). It is another thing to set out to investigate the executive government’s capacity to discharge its obligations of taking proper care of people in its custody. … Atkinson J did not go beyond finding that there was a 'very high risk'. An attempt, on appeal, to measure the extent of the risk was bound to fail. For some offenders, prisons are dangerous places. It is the responsibility of the executive branch of government, in whose custody prisoners are placed, to take reasonable steps to minimise the danger. In dealing with questions of sentence, a court may need to know of any special circumstances of confinement that will be involved. But it is difficult for a court to measure the prospects of success of a criminal enterprise [5].
McHugh J held that the safety of a prisoner is a relevant sentencing consideration. He said the Court of Appeal erred in finding that 'the risk to a criminal's safety whilst in prison' was not a consideration that was relevant to whether 'the otherwise appropriate penalty, namely imprisonment, ought not be imposed' [21]. His Honour added:
In fixing an 'appropriate penalty', a sentencing judge is entitled to take into account any matter that ensures that, to some extent, the fixing of the sentence 'discharge[s] the true function of the criminal law and the purposes of punishment' (R v Leach (1970) 1 A Crim R 320 at 327) in the instant case.
McHugh J also said that 'sentencing judges must impose sentences that are apt, not merely to prevent a convicted criminal from interfering with others, but also to enable the prisoner's rehabilitation so as to resume citizenship in the free society (Duncan v The Queen (1983) 9 A Crim R 354; R v Bell [1982] Qd R 216 at 220 ‑ 221)' [22]. His Honour elaborated:
[Sentencing judges] must seek to ensure that each and every citizen, including a convicted criminal, 'is properly safeguarded by the law against the predations of others' (Braithwaite and Pettit, Not Just Deserts: A Republican Theory of Criminal Justice (1990), p 57). That means that a sentencing judge must endeavour not only to protect society from the risk of a convicted criminal re-offending but also to protect the convicted criminal from the risk of other prisoners re-offending while in jail.
The common law's equal concern for the physical safety of each citizen makes it appropriate for a sentencing judge to take into account the grave risk that a convicted criminal could be killed while in jail. What weight should be given to the risk of a prisoner being killed or injured will depend on all the circumstances of the case including the likelihood of its occurrence [22] ‑ [23].
Hayne J made the following statement of principle:
The effect of serving a term of imprisonment, and the conditions under which an offender would serve that sentence, are relevant matters that may be taken into account by a sentencing judge ‑ at least when that effect and those conditions are shown to be different from, and more onerous than, the effect on and conditions undergone by other prisoners (R v Perez‑Vargas (1986) 8 NSWLR 559 at 565 per Street CJ; R v Rostom [1996] 2 VR 97 at 100, 102 per Charles JA; R v Laws [No 2] (2000) 116 A Crim R 70 at 78 per Wood CJ at CL; R v ZMN (2002) 4 VR 537) [38].
As to the cases cited by Hayne J in that passage:
(a)I discuss R v Rostom [1996] 2 VR 97 and R v ZMN [2002] VSCA 140; (2002) 4 VR 537 later in these reasons.
(b)In R v Perez‑Vargas (1986) 8 NSWLR 559, Street CJ (Hunt & Allen JJ agreeing) commented, in the case of an offender who had given assistance to the prosecuting authorities, that a sentencing judge should give 'such weight as he may think fit to such information as is placed before him regarding the degree of assistance provided prior to the sentencing hearing and to his own awareness of the hardships of protective custody' (565).
(c)In R v Laws (No 2) [2000] NSWSC 885; (2000) 116 A Crim R 70, the defendant, a well known and influential media personality, was convicted of soliciting information from a former juror for the purpose of obtaining information on the deliberations of the jury, contrary to s 68A of the Jury Act 1977 (NSW). The maximum penalty was 7 years' imprisonment. Wood CJ at CL said he was not persuaded that a sentence of either periodic detention or home detention was appropriate. As to periodic detention, his Honour explained that, by reason of the defendant's 'high profile and his well known stand on issues of law and order, ... he would face a significant risk of personal injury or worse if sentenced to periodic detention, a form of imprisonment that does not allow for segregation other than from those inmates who are serving full‑time sentences' [44].
Callinan and Heydon JJ decided the appeal in York on the basis that, in the circumstances, there was no sufficient basis for the Court of Appeal to interfere with the exercise by the sentencing judge of her discretion [68].
Ground 3: New South Wales cases
In R v Stockdale [2004] NSWCCA 1; (2004) 142 A Crim R 448, the applicant was convicted of the offence of solicit to murder. He was sentenced to 6 years' imprisonment with a non‑parole period of 3 years 9 months. The Court of Criminal Appeal of New South Wales dismissed the applicant's appeal against sentence.
The applicant gave evidence at the sentencing hearing that while he was in custody on remand he had been the subject of an extortion attempt by another prisoner. As a result of his refusal to comply with the other prisoner's demands, the applicant was stabbed. After this assault the applicant was placed on protection. He gave evidence of the conditions which applied to him as a protection prisoner compared to the conditions which applied to the general prison population. The conditions applying to protection prisoners were more adverse than those applying to the general prisoner population.
Bell J (Grove & Sully JJ agreeing) said the fact that an offender will serve at least some part of his or her sentence on protection is a factor to be taken into account in the determination of the sentence [22]. Her Honour then said:
It is necessary for the judge to give consideration to such evidence as there is as to the conditions of confinement to which the offender will be subject as a protection prisoner. These may vary between institutions. In this case there was evidence that the applicant was subject to some restrictions that do not apply to prisoners in ordinary discipline. It was appropriate to take this fact into account [22].
In Clinton v The Queen [2009] NSWCCA 276, the appellant appealed against sentence. One of his grounds alleged that the sentencing judge had given insufficient weight to his having served a period of nearly 16 months on 'strict protection'. Howie J (Allsop P & Hislop J agreeing) observed that in New South Wales in 2009 the fact that a person was in protective custody did not necessarily result in harsher prison conditions [24]. His Honour added:
For my part I do not believe that it is appropriate for a court to adopt a mathematical formula to convert time spent in protection to an equivalent period spent in the general prison population. There are too many variables and there is not always a significant difference between being on protection and being part of the normal prison population. There may well be benefits derived from being on protection that offset some of the deprivations [25].
In Isaac v The Queen [2012] NSWCCA 195, Garling J (Hoeben JA & Latham J agreeing) reiterated that 'it is no longer regarded as axiomatic' in New South Wales 'that a person who has provided assistance to authorities will serve the sentence under harsher and more onerous conditions when compared to an ordinary prisoner' [47].
In R v Tuivaga [2013] NSWSC 1626, the offender was convicted of manslaughter. At the sentencing hearing, the sentencing judge, Price J, was informed that the offender had faced and would continue to face a danger to his personal safety while in custody. In particular, he was at risk from known members of the Rebels motorcycle gang. The danger had led to the offender being held in segregation. He was locked in his cell for 23 hours a day. He had little contact with other prisoners and was unable to access programmes or courses. His ability to exercise and to make telephone calls was restricted. It was more likely than not that the offender would continue to serve his sentence under these conditions, which were more difficult than the conditions applicable to the general prison population. Price J found that the conditions in which the offender was serving his sentence had aggravated his underlying depressive illness and sense of despair. His Honour accepted that 'the offender's sentence will weigh more heavily upon him and the conditions of his custody exacerbate his depression. I take into account the hardship that the offender experiences in custody as a matter in mitigation: Clinton v R [2009] NSWCCA 276' [24].
Ground 3: Victorian cases
In Rostom, the appellant was convicted of importing heroin. He committed the offence on 22 September 1992. In 1986 he had commenced a relationship with a woman who had previously been the girlfriend of George Koureas. She was murdered. The appellant gave evidence at an inquest into her death. Later, he gave evidence at committal proceedings and three subsequent trials of Koureas for her murder. As a result, the appellant's life was endangered. He was forced to seek protective custody while in prison. The Court of Appeal of Victoria allowed the appellant's appeal against sentence. Charles JA (Callaway JA & Vincent AJA agreeing) held that imprisonment in protective custody should be taken into account in sentencing an offender. It was a circumstance which made the incarceration of the offender more burdensome than imprisonment in the mainstream prison system. His Honour also held that a prisoner who has given assistance to law enforcement authorities is entitled to leniency as an informer notwithstanding that the assistance was given in unrelated criminal proceedings (104).
In R v Kasulaitis [1998] 4 VR 224, the appellant was convicted of the attempted murder of his 8‑year‑old son. He was sentenced to 10 years' imprisonment with a non‑parole period of 6 years. The Court of Appeal of Victoria allowed his appeal and resentenced him to 8 years' imprisonment with a non‑parole period of 5 years 6 months. The appellant was closely attached to his son. At the sentencing hearing, psychiatric evidence was received to the effect that when he committed the offence the appellant was suffering a catastrophic breakdown in normal integrated functioning. He intended to kill himself and attempted to kill his son out of love rather than hatred. Batt JA (Phillips CJ & Callaway JA agreeing) said in the course of deciding that the sentence imposed by the primary judge was manifestly excessive:
Finally, perhaps the most significant single consideration is that the applicant was going to have to serve his whole time in prison in some form of protective custody. It is true that details of the kind of custody were not available, as they usually are; but the essential fact was not challenged before the judge or before us. That meant that the time spent in prison would bear more harshly upon the applicant than it would if he were not in protective custody: R v Rostom [1996] 2 VR 97 at 101-3 (where, admittedly, there was specific evidence). It is also to be borne in mind that the fixing and length of a non-parole period must not lead to the overlooking of the possibility that the applicant may have to serve every day of the head sentence: R v Revell (unreported, Court of Appeal, 19 February 1996) at 10 and 11; R v Yates [1985] V.R. 41 at 44-5; R v Currey [1975] VR 647 at 651 and 652-3; and R v Douglas [1959] VR 182. Accordingly, regard must be had to the head sentence (as well as to the non-parole period) when the effect of protective custody is being considered. Ten years' imprisonment in protective custody is a far different thing from 10 years' imprisonment not in protective custody (232).
In Director of Public Prosecutions v Faure [2005] VSCA 91; (2005) 12 VR 115, the respondent was convicted on one count of being a prohibited person in possession of an unregistered firearm. He was found in possession of an unregistered pistol. The respondent was aged 49 at the time of sentencing and he had a significant criminal history. The Director of Public Prosecutions appealed. It was alleged that the sentence was manifestly inadequate. The Court of Appeal of Victoria allowed the appeal. However, Williams AJA (Callaway & Batt JJA agreeing) said that the burden of the respondent's likely incarceration in 23‑hour lockdown conditions warranted a significant reduction in the sentence which might otherwise have been imposed [28].
In ZMN, the appellant pleaded guilty to one charge of armed robbery, two charges of firearms offences and two charges of drug offences. He had more than 200 prior convictions. The primary judge imposed a total effective sentence of 8 years' imprisonment with a non‑parole period of 4 years 6 months. He appealed on the ground, amongst others, that the primary judge failed to have sufficient regard to his past cooperation with law enforcement authorities by his having given evidence at the trial and re‑trial of a violent murderer, with the result that his imprisonment would be served in protective custody. The Court of Appeal of Victoria dismissed the appeal. However, Charles JA (Winneke P & Vincent JA agreeing) said:
In the present case ... the judge accepted that the appellant's evidence against [the violent murderer] involved serious risk to his life and the necessity for his time in custody to be spent in protection. He was plainly entitled to have the fact that his period of incarceration would be spent in protection taken into account in his favour, and since the source of his need for protection was the assistance given by him to prosecuting authorities his entitlement to leniency in sentencing would thereby be increased. Any prisoner whose term in custody must be spent in protection is entitled to have that circumstance taken into account in sentencing, but the antipathy of other prisoners may have nothing to do with any assistance given by the former to prosecuting authorities. The claim of such a prisoner to leniency in sentencing must surely be less than that of, say, Rostom or the present appellant [24]. (emphasis added)
In R v Bangard [2005] VSCA 313; (2005) 13 VR 146, the appellant was convicted of the manslaughter of the woman with whom he was living. He was sentenced to 11 years' imprisonment with a non‑parole period of 8 years. The trial judge, in sentencing the appellant, gave no weight to the fact that he was required as a Crown witness in another criminal proceeding, and would therefore be held in protective custody. The Court of Appeal of Victoria allowed the appeal and substituted a sentence of 9 years' imprisonment with a non‑parole period of 7 years.
The facts relating to the other criminal proceeding were these. The appellant had been assaulted and the person who allegedly assaulted him had been charged with intentionally causing serious injury. The appellant had given evidence at a committal hearing and was to give evidence at the trial. As a result, the appellant was being held in protective custody. This form of custody was more onerous than the form of custody applicable to the mainstream prison population. The trial judge said:
I do not think it is appropriate to take into account the administrative arrangements within the prison system, which may be short term and the reasons for which are unknown to me [13].
Buchanan JA (Eames & Nettle JJA relevantly agreeing) held that the trial judge's approach was erroneous:
In my view his Honour ought not to have entirely dismissed what was a factor relevant to sentence (See R v Rostom [1996] 2 VR 97; R v ZMN (2002) 4 VR 537; R v Slater (2001) 121 A Crim R 369 at 375, [26]-[29]; Director of Public Prosecutions v Fraser [2004] VSCA 145 at [15]; R v Wilhelm [2005] VSCA 192 at [5]). It was an administrative arrangement which the courts do take into account as a matter of course in sentencing. The fact that the appellant was unable to predict the duration of the need for his protection did not wholly devalue its relevance. The reason for the protective custody was in fact revealed [14].
In Director of Public Prosecutions v OJA [2007] VSCA 129; (2007) 172 A Crim R 181, the Director of Public Prosecutions appealed to the Court of Appeal of Victoria against sentences of imprisonment imposed on the respondents upon their pleading guilty to a range of interrelated sexual offences against or concerning children. Nettle JA (Ashley & Redlich JJA agreeing) noted, with approval, that the primary judge had 'paid close regard to a range of significant mitigatory factors which included … that [OJA] would serve his sentence in protective custody (Sentencing Remarks at [58]; AB v The Queen (1999) 198 CLR 111, 152 [105]; R v Bangard (2005) 13 VR 146, 149 [13] ‑ [14])' [20]. Confinement in protective custody would 'add to the hardship of prison' [20].
In R v Males [2007] VSCA 302, the Court of Appeal of Victoria allowed the appellant's appeal against sentence because the sentencing judge was not told that the appellant had been held, and was continuing to be held, in protective custody. Affidavit evidence admitted in the appeal referred to restrictions upon the appellant as a result of his being in protective custody. The affidavit evidence suggested that the appellant was initially placed in protective custody because of an incident a number of years previously where he had been assaulted and because, having previously been held in protective custody, he was now 'marked' by the mainstream prison population.
Whelan AJA (Maxwell P agreeing) said:
Where a prisoner is being held in protective custody, that is a factor relevant to sentence (R v Bangard (2005) 13 VR 146, 149). The extent to which it is to be taken into account in the prisoner's favour depends upon the source of the need for protection (R v ZMN (2002) 4 VR 537, 543) and, of course, upon the particular circumstance and likely duration of the protection.
...
... One submission made by the Crown today was that there are circumstances in which the fact that a prisoner is in protection should not be taken into account at all. In my view, this appeal is not an appropriate occasion upon which to deal with that submission.
For the purposes of this appeal, it suffices to observe that the reasons for the appellant's protection status are related to conflicts with other prisoners, the causes of which are a matter of controversy; and that whilst it is not the case that prisoners in protection such as this appellant do not have any access to programs and services, the conditions are more burdensome than those in the mainstream. I also conclude, on the basis of the material now filed, that it is likely that the appellant will serve his entire term in a protection unit. In my view, this is a factor to be taken into account in favour of the appellant [5], [8] ‑ [9].
Kellam JA (Maxwell P agreeing) stressed the importance of detailed and accurate information being made available to a sentencing judge when a submission is made that the offender is in protective custody or will be placed in protective custody:
Quite clearly, the relevance of the fact that a person is in protective custody will vary greatly depending upon the particular circumstances of such protective custody. A sentencing judge cannot give appropriate consideration to the issue of a prisoner being held in protection without appropriate material being put before her or him [38].
See also his Honour's observations at [40].
Ground 3: South Australian cases
In R v Gooley (1996) 66 SASR 380, the appellant, a 23‑year‑old man, was convicted of unlawful sexual intercourse with a 14‑year‑old girl. He was sentenced to 30 months' imprisonment with a non‑parole period of 20 months. He appealed against sentence.
On the morning after the offence the appellant was apparently beaten quite badly by people connected with the victim. Later, while in custody, he was assaulted twice, apparently as a result of publicity about his case. It was probable the appellant would have to serve his sentence in protective custody.
In the Court of Criminal Appeal of South Australia, Doyle CJ (Williams J agreeing) said he did not consider that 'ordinarily an illegal act of other people can affect the punishment which an offender must receive' (382). However, his Honour was 'prepared to make a small allowance despite this on the basis that the sentence which the appellant serves will be served under circumstances in which he will be at risk of harm and under special restrictions necessary to provide him with adequate protection' (383).
In R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231, the appellant was convicted of multiple child sex offences. When the offences were committed he was a magistrate. He had previously been a prosecutor. As a magistrate the appellant had the reputation for being 'tough on sentencing'. The appellant was held in solitary confinement, for his own protection, because of the nature of the offences he had committed and because of his former status as a magistrate who was thought to be 'tough on sentencing'. On appeal, the judges of the Court of Criminal Appeal of South Australia expressed different views as to the approach to be adopted in relation to what allowance, if any, should be made for the conditions in which the appellant was held in custody.
Mullighan J said:
It does not appear that the Court in Gooley had the advantage of full argument on this matter as there is no reference to authority or to the implications generally in the sentencing process of reducing a sentence because of the additional privation and burden which an offender will suffer in protective custody where the need for that type of incarceration is due to the nature of the crime which the offender has committed.
... The appellant was a former prosecutor in the Crown Prosecutor's Office and a magistrate. He was well aware of the type of sentence which would be imposed upon him if his offending was detected and proved. Also, he would have known of the public opprobrium which his offending would attract and of the attitude of prisoners towards him because of the nature of his offending and his having been a magistrate. Nevertheless he committed these very serious offences. This is a matter of considerable importance and enables the decision in Gooley to be distinguished. For these reasons I would not reduce the sentence because of the harsh circumstances in which the appellant finds himself in prison [122] ‑ [123].
Williams J expressed the following views:
In my opinion a paedophile is not entitled to any reduction in sentence by reason of the attitude of other prisoners to this type of crime. However, there comes an extreme point where the hardship of protective custody made necessary by resentment amongst prisoners as to an offender's previous occupation may properly attract some discount to lessen the impact of undeserved punishment associated with solitary confinement without normal privileges. The difficulty in the present case is that Liddy took advantage of his office to commit these infamous crimes. He must expect to suffer particular shame as a disgraced magistrate but gaol inmates with long memories cannot be allowed to settle old scores. The need for Liddy's solitary confinement is partly attributable to the grudge which many within the prison system may be expected to bear against him as a magistrate by reason of the experiences of themselves and their friends at his hands. Therefore, I consider that the conditions which he is enduring does warrant some reduction in sentence insofar as the extraordinary need for his confinement in isolation arises from a justifiable fear of reprisals unconnected with Liddy's crimes. The exercise of power to reduce sentence by reason of especially arduous conditions of prison service was canvassed by the Chief Justice in R v Gooley (1996) 66 SASR 380 at 382-383; I concurred in that judgment [146].
Gray J said:
A defendant who becomes an informer to assist the administration of justice may legitimately seek a reduction in sentence to recognise the harsh treatment and risks that will be likely to arise in prison and possibly on release. A need for a reduction may arise because of a disability or some other idiosyncratic feature of a defendant. A defendant who is blind or paralysed may also legitimately have that matter taken into account. Each case will turn on its own facts.
The appellant in this case needs protection. This need has arisen from the nature of his crimes and from his former employment. The appellant's need arises from matters of a different character to those earlier described. Their mitigatory effect is much less [214] ‑ [215].
Although neither the prosecutor nor defence counsel adduced any evidence at the sentencing hearing about the facts and circumstances of the appellant's detention in custody or any of the other matters to which I have referred at [153] above, both parties in effect conducted the case before his Honour on the footing that:
(a)the contentions in defence counsel's written submissions were correct and the conditions of the appellant's confinement had been, at least in some respects, materially more arduous than those applicable to the general prison population; and
(b)the appellant had not derived any benefit from the conditions of his confinement apart from the elimination or reduction of the risk of reprisals from members of rival criminal gangs in the general prison population.
Ground 3, as recast by counsel for the appellant at the hearing of appeal, has been made out. I will consider later in these reasons whether a different sentence should have been imposed.
Ground 1
The maximum penalty for:
(a)the offence of possessing a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act; and
(b)the offence of attempting to possess a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the Act,
is 25 years' imprisonment or a fine of $100,000 or both. See s 33(1) and s 34(1)(a) of the Act.
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of implied error. 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.
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by an offender, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper limit of the range.
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. 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 for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
All of these propositions are well‑established by case law in the Court of Criminal Appeal and this court.
I have examined numerous prior cases of offending against s 6(1) of the Act which have at least some features comparable to the appellant's offending. See Quach v The Queen [1999] WASCA 210; Aconi v The Queen [2001] WASCA 211; Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19; Delovski v The Queen [2002] WASCA 88; Bahn v The State of Western Australia [2008] WASCA 40; Civello v The State of Western Australia [No 2] [2008] WASCA 163; Sabau v The State of Western Australia [2010] WASCA 3; Koncurat v The State of Western Australia [2010] WASCA 184; Mikulic v The State of Western Australia [2011] WASCA 14; Galbraith v The State of Western Australia [2011] WASCA 70; Penney v The State of Western Australia [2011] WASCA 71; Pham v The State of Western Australia [2011] WASCA 244; Lai v The State of Western Australia [2012] WASCA 181; Ozan v The State of Western Australia [2013] WASCA 27; Kitis v The State of Western Australia [2013] WASCA 34; Neumann v The State of Western Australia [2013] WASCA 70; Ruvinovski v The State of Western Australia [2013] WASCA 204; Halmi v The State of Western Australia [2013] WASCA 229; and the decisions cited in those cases. It is unnecessary to repeat the facts and the sentencing outcomes in the prior cases. There are some comparable features between some of those cases and the present case. However, there are also distinguishing features.
In the present case, the degree of seriousness of the appellant's criminality is apparent from the following:
(a)The methylamphetamine, the subject of counts 1 and 3, comprised 7.658 kg in total, 4.983 kg of which was of a high purity.
(b)The methylamphetamine, the subject of count 3, could and would have been diluted by those to whom the appellant sold the drugs, even if he did not dilute it himself.
(c)The appellant knew the methylamphetamine, the subject of count 3, was of reasonably high quality, and could be diluted before sale to the end users.
(d)The appellant committed the offences solely for very significant commercial gain. His only motive for engaging in the illicit drug trade was to make large sums of money for his own benefit or for the benefit of others associated with him. At the material times he did not use illicit drugs. Indeed, the appellant revealed contempt for illicit drug users by telling the author of the pre‑sentence report that 'a healthy mind and body cannot be infused with illicit substances'.
(e)The appellant was at the top of the Western Australian chain of distribution of illicit drugs. He was in charge of a significant criminal enterprise and his operations were well organised. He had numerous people working for him at different levels. The appellant's network of contacts and associates enabled him to disseminate large quantities of methylamphetamine into the community within a relatively short period. The appellant dealt directly with Mr Ayik, who was an importer of illicit drugs from overseas and at the very top of the Australian chain of distribution.
(f)The appellant committed count 3, even though the police had aborted the transaction the subject of count 1. He committed count 3 despite knowing that the police had charged his wife's cousin, Mr Da San Martino, with count 1. By committing count 3, the appellant placed his close friend and cousin, Mr Tanevski, at risk of suffering the same fate as Mr Da San Martino. Count 3 demonstrated the appellant's determination to persist in very serious criminal behaviour for his own financial benefit, whatever the possible consequences for others.
The appellant's conduct involved an extremely high degree of culpability, and his Honour rightly found that the offences were 'close to the top end of the range of seriousness' (ts 3756).
Although the appellant did not have a prior criminal record of any relevance, and some of his personal circumstances and antecedents were reasonably favourable, the nature and extent of his offending meant that only limited weight could be given to those mitigating factors.
The appellant was aged 32 at the time of the offending. He did not have the mitigation of youth or inexperience.
The offences in question were not isolated incidents. The appellant had, for some time prior to committing counts 1 and 3, been a regular top‑end dealer in illicit drugs (ts 3756). He cannot be, and was not being, punished for offences with which he was not charged. However, the appellant was not entitled to any mitigation on the basis that his moral culpability for the counts in the indictment was diminished because his behaviour on those occasions was uncharacteristic or an aberration.
The appellant did not have the mitigation that a plea of guilty would have brought.
The appellant demonstrated no remorse or contrition and no acceptance of responsibility for his offending.
The primary sentencing considerations were condign punishment and general deterrence. A very lengthy sentence of imprisonment was required for each of the offences.
In my opinion, the sentences of 12 years' imprisonment for count 1 and 14 years 6 months' imprisonment for count 3 were well within the range open on a sound exercise by the trial judge of his discretion. Each sentence was commensurate with the seriousness of the offence after taking into account the maximum penalty, the facts and circumstances of the offending, the general standards of sentencing for offences of this kind, the place which each offence occupied on the scale of seriousness of offences of this kind, the appellant's personal circumstances and antecedents and all other relevant sentencing factors. Neither the sentence for count 1 nor the sentence for count 3 was unreasonable or plainly unjust. The existence of error should not be inferred from the sentencing outcome in relation to count 1 or count 3.
Ground 1 is without merit.
Ground 2
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases. This statement of the first limb is well-established by the case law.
I have already considered, in the context of ground 1, the individual sentences for counts 1 and 3. Each offence was very serious.
It was necessary for the trial judge to order some substantial accumulation of the individual sentences. Each of them was a separate and distinct offence. Count 3 was committed despite the appellant's knowledge that the police had thwarted the transaction the subject of count 1 and had arrested and charged some of the participants. His conduct in then committing count 3 showed his disdain for and defiance of the law. The ordering of wholly concurrent individual sentences, or only a modest accumulation, would not properly have marked the extremely serious nature and extent of his offending as a whole.
In my opinion, the total effective sentence of 17 years' imprisonment bears a proper relationship to the overall criminality involved in both of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing considerations, including the limited mitigating factors. The total effective sentence was well within the range open on a proper exercise of the trial judge's discretion. The existence of error in the determination of the total effective sentence should not be inferred from the result.
Ground 2 fails.
Ground 3: should a different sentence be imposed?
I have decided that the appellant has made out ground 3.
Section 31(3) of the Criminal Appeals Act provides that, unless under s 31(4), this court allows an appeal against sentence, it must dismiss the appeal.
By s 31(4)(a), this court may allow an appeal against sentence if, in its opinion, a different sentence should have been imposed.
As I have mentioned, the individual sentences for counts 1 and 3, and the total effective sentence, were well within the range open to the trial judge on a proper exercise of the sentencing discretion. Indeed, I am of the opinion that the total effective sentence was, in all the circumstances, reasonably lenient.
I have previously described the circumstances of the appellant's incarceration in the MPU at Casuarina Prison for a total of about 9 months before he was sentenced. See [168] above.
I infer from:
(a)the additional evidence about the nature and extent of the restrictions in the MPU;
(b)the additional evidence as to the significantly less severe restrictions in the SHU;
(c)the court's general knowledge about the mainstream prison conditions at Casuarina Prison; and
(d)the absence of any reference in the affidavits of Mr Thatcher and Mr Anderson to any benefits enjoyed by prisoners held in the MPU compared to prisoners held in the general prison population,
that the circumstances of the appellant's incarceration during the period of about 9 months were materially more arduous than the conditions applicable to the mainstream prison population, including inmates on remand.
An inference to that effect is not open in relation to the appellant's detention in the SHU before sentencing.
The circumstances of the appellant's incarceration while he was in the MPU were a relevant sentencing factor and had to be taken into account. The trial judge was not entitled to ignore those circumstances because the threat to the appellant's safety arose from grudges formed in the context of illegal activities preceding his arrest. A very small discount should have been allowed in the determination of the individual sentences and the total effective sentence for the conditions of the appellant's detention in the MPU before sentencing.
However, after taking into account the maximum penalty for counts 1 and 3, the facts and circumstances of each of the offences, the standards of sentencing customarily observed with respect to offences of this kind, the place which the appellant's criminal conduct in relation to each offence occupies on the scale of seriousness of offences of this kind, the conditions under which the appellant was held in the MPU before the hearing of this appeal, and all other relevant sentencing factors (including the appellant's personal circumstances and antecedents), I am of the opinion that a different individual sentence should not have been imposed for either count 1 or count 3.
Similarly, after evaluating the overall criminality involved in counts 1 and 3, viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the appellant personally and the conditions under which he was held in the MPU before the hearing of the appeal, and the total effective sentences imposed in cases with at least some features comparable to the present case, I am
satisfied that a different total effective sentence should not have been imposed for counts 1 and 3.
Conclusion
The appellant's application for leave to adduce additional evidence in the appeal should be granted. I would refuse leave to appeal on ground 1. The appeal should be dismissed.
MAZZA JA: I agree with McLure P and Buss JA that leave to appeal should be refused on ground 1 and that the appellant's appeal against sentence should be dismissed.
I am grateful to Buss JA for his detailed description of the background facts and the other information before this court, including the affidavit evidence filed on behalf of both parties. I would admit these affidavits pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA). Having done so, I prefer the evidence filed on behalf of the respondent as to the appellant's pre‑sentence detention over that filed on behalf of the appellant. It is clear that the affidavit of Mr Ali Abbas, on behalf of the appellant, contained hearsay and was materially inaccurate in its description of the appellant being in 'solitary confinement'. The content of the affidavits of Peter Anderson and Luke Thatcher filed on behalf of the respondent was detailed and primarily derived from the deponents' own knowledge and from records which were highly likely to be accurate.
I agree with Buss JA, for the reasons that he gives, that grounds 1 and 2 have not been made out.
With respect to ground 3, I respectfully agree with his Honour's analysis of the case law and his distillation of the relevant principles as to the mitigation, if any, that may be given to the conditions in which an offender is held in custody.
What clearly emerges from the case law is that the issues of whether any mitigation may be given to the conditions in which an offender is held in custody and the weight that may be attached to this factor are very fact sensitive. Further, where it is submitted that an offender's detention has or will be more arduous, it is necessary for the submission to be supported by appropriate evidence.
While I agree with Buss JA's analysis of the law in respect of ground 3, I respectfully disagree with his conclusion that, on the facts of
this case, the conditions in which the appellant was held before being sentenced were mitigatory.
The appellant's pre‑sentence detention was in a mainstream unit, the multipurpose unit (MPU), the special handling unit (SHU) and, for less than a week, in unit 1, B-wing.
The conditions of the appellant's detention in a mainstream unit could not be mitigatory. In respect of his detention in both the MPU and the SHU, it must be accepted that the appellant was kept separate from the general prison population. However, this does not mean that the conditions of his imprisonment were materially more arduous. On the evidence before this court, it is not possible to reach that conclusion in respect of his accommodation in those units. Finally, there is insufficient information about conditions in unit 1, B‑wing. In any event, the appellant's time there was, having regard to his total period of pre‑sentence detention, very brief.
If I am wrong in concluding that, on the facts of this case, the conditions of the appellant's pre‑sentence detention was not mitigatory, I would not, even giving the appellant the benefit of his detention in all but mainstream units, have imposed a different sentence. The individual sentences that were challenged and the total effective sentence were well within the range of a proper sentencing discretion and the mitigation that could be given to the appellant's pre‑sentence detention was, in the scheme of things, very small.
SCHEDULE
Hakea Prison
| 26/02/10 | Received Hakea Prison |
| 26/02/10 | Placed in Unit 7 - Reception Unit for all new prisoners (Mainstream Unit) |
| 27/02/10 ‑ 04/03/10 | Placed in Unit 1 (B Wing) - Management placement due to concerns for risks to [the appellant] from rival OMCG |
| 04/03/10 ‑ 23/03/10 | Placed in Unit 3 - Mainstream Unit |
| 23/03/10 - 19/04/10 | Placed in Unit 5 - Mainstream + Self-Care Unit |
| 19/04/10 | Transferred to Casuarina Prison |
Casuarina Prison
| 19/04/10 - 23/11/10 | Placed in Casuarina Prison's MPU (separate from the general prisoner population) |
| 23/11/10 - 10/12/10 | Placed in Unit 4 - Mainstream Unit |
| 10/12/10 | Transferred to Hakea Prison |
Hakea Prison
| 10/12/10 - 14/12/10 | Placed in Unit 7 - Reception Unit |
| 14/12/10 - 16/12/10 | Placed in Unit 3 - Mainstream Unit |
| 16/12/10 - 09/03/11 | Placed in Unit 5 - Mainstream + Self‑Care Unit |
| 09/03/11 | Transferred to Bunbury Regional Prison |
Bunbury Regional Prison
| 09/03/11 - 22/03/11 | Placed in Unit 1 - Management Unit |
| 22/03/11 - 27/07/11 | Placed in Unit 2 - Mainstream Unit |
| 27/07/11 | Transferred to Hakea Prison |
Hakea Prison
| 27/07/11 - 01/08/11 | Placed in Unit 1 (A Wing) - Mainstream placement |
| 01/08/11 - 05/10/11 | Placed in Unit 5 - Mainstream + Self-Care Unit |
| 05/10/11 | Released on bail |
Casuarina Prison
| 20/07/12 - 17/09/12 | Placed in Casuarina Prison's MPU (separate from the general prisoner population) |
| 17/09/12 ‑ 19/09/12 | Placed in Unit 5 - Mainstream Unit |
| 19/09/12 ‑ 09/01/13 | Placed in Casuarina Prison's SHU (self‑contained management unit - separate from the general population) |
| 09/01/13 ‑ 01/02/13 | Placed in Casuarina Prison's MPU (separate from the general prisoner population) |
| 01/02/13 ‑ 14/11/13 | Placed in Casuarina Prison's Special Handling Unit (self‑contained management unit - separate from the general population) |
| 14/11/13 - present | Placed in Unit 5 - Mainstream Unit |
38
40
3