MMA v The Queen
[2015] WASCA 177
•2 SEPTEMBER 2015
MMA -v- THE QUEEN [2015] WASCA 177
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 177 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:212/2014 | 7 AUGUST 2015 | |
| Coram: | McLURE P MAZZA JA | 2/09/15 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application to adduce additional evidence dismissed Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MMA THE QUEEN |
Catchwords: | Criminal law Drug offences Application for leave to appeal against sentence Total effective sentence 8 years 8 months' imprisonment Totality |
Legislation: | Crimes Act 1914 (Cth), s 16A Criminal Appeals Act 2004 (WA), s 40(1) Criminal Code (Cth), s 11.1(1), s 11.2A, s 302.3(1), s 307.2(1) |
Case References: | Cavill v The Queen [2014] WASCA 77 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 House v The King [1936] HCA 40; (1936) 55 CLR 499 R v Baldock [2010] WASCA 170; (2010) 203 A Crim R 214 R v Lee [2013] WASCA 216 Vagh v The State of Western Australia [2007] WASCA 17 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MMA -v- THE QUEEN [2015] WASCA 177 CORAM : McLURE P
- MAZZA JA
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : DCJ X
File No : IND x of 2014
Catchwords:
Criminal law - Drug offences - Application for leave to appeal against sentence - Total effective sentence 8 years 8 months' imprisonment - Totality
Legislation:
Crimes Act 1914 (Cth), s 16A
Criminal Appeals Act 2004 (WA), s 40(1)
Criminal Code (Cth), s 11.1(1), s 11.2A, s 302.3(1), s 307.2(1)
Result:
Application to adduce additional evidence dismissed
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr H Sklarz
Respondent : No appearance
Solicitors:
Appellant : Sklarz Lawyers
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Cavill v The Queen [2014] WASCA 77
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
House v The King [1936] HCA 40; (1936) 55 CLR 499
R v Baldock [2010] WASCA 170; (2010) 203 A Crim R 214
R v Lee [2013] WASCA 216
Vagh v The State of Western Australia [2007] WASCA 17
1 McLURE P: I agree with Mazza JA.
2 MAZZA JA: This is an application for leave to appeal against sentence. On 26 March 2014, the appellant pleaded guilty in the District Court to two counts of importing a marketable quantity of a border controlled drug, namely methamphetamine, by way of a joint criminal enterprise contrary to s 307.2(1) and s 11.2A of the Criminal Code (Cth) (the Criminal Code) (counts 1 and 4), two counts of attempting to import a border controlled drug, namely methamphetamine, by way of a joint criminal enterprise contrary to s 11.1(1), s 11.2A and s 307.2(1) of the Criminal Code (counts 2 and 3), and one count of trafficking a marketable quantity of a border controlled drug, namely methamphetamine, contrary to s 302.3(1) of the Criminal Code (count 5). The maximum penalty for each of these five offences is 25 years' imprisonment, or a fine of $850,000, or both.
3 On 21 November 2014, the appellant was sentenced as follows:
Count |
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Count 1 |
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Count 2 |
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Count 3 |
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Count 4 |
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Count 5 |
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Total effective sentence |
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4 The ground of appeal relied upon by the appellant alleges a weighting error to the effect that the discount of one-third that the learned sentencing judge gave for the appellant's 'expedited early plea of guilty and his cooperation with the authorities' was insufficient. Framed in these terms, the ground does not allege an appellable error: see Vagh v The State of Western Australia [2007] WASCA 17 [76] and R v Lee [2013] WASCA 216 [51]. However, having regard to the submissions made on behalf of the appellant, it may be taken that the appellant alleges, in substance, that the total effective sentence infringed the first limb of the totality principle.
5 The facts of the offending, the personal circumstances of the appellant and the details of his cooperation with the authorities are set out in Part A of the confidential memorandum annexed to these reasons. That memorandum will be subject to a confidentiality order and will not be published except to the appellant and the Crown and their respective legal representatives.
Sentencing remarks
6 The learned sentencing judge acknowledged that the appellant's financial difficulties gave some explanation for his offending; however, he said that such difficulties were not mitigatory. His Honour concluded that the appellant was 'clearly involved in a deliberate illegal enterprise for [his] own financial benefit'. He said that an aggravating feature of the offences was their repetitive nature.
7 His Honour expressly took into account all relevant matters pursuant to s 16A of the Crimes Act 1914 (Cth). His Honour gave, as he put it, 'a reasonabl[y] significant discount' for the appellant's early pleas of guilty. In addition, his Honour gave a discount for the appellant's past and promise of future cooperation with authorities, which he characterised as 'significant'. His Honour acknowledged that, by reason of his cooperation, the appellant's personal safety had been jeopardised. His Honour gave around one-third discount for the appellant's cooperation which he allocated equally between the appellant's past and future cooperation.
Proceedings before this court
8 By his written and oral submissions to this court, the appellant alleges, in substance, that his total effective sentence of 8 years 8 months' imprisonment infringed the first limb of the totality principle when proper regard is had to the appellant's cooperation. Specifically, counsel for the appellant asserted that the level of cooperation provided to the authorities was more than 'significant' and warranted a lesser total effective sentence.
9 The appellant's submissions proceed upon an erroneous factual basis. The appellant appears to be under the impression that the learned sentencing judge gave a one-third discount for both the pleas of guilty and the appellant's cooperation with the authorities. However, it is clear from his Honour's sentencing remarks that the one-third discount was for the appellant's cooperation, and that this discount was in addition to the discount for the pleas of guilty.
Relevant legal principles
10 In order for this court to intervene, the appellant must demonstrate that a material express or implied error has occurred. The proposed ground of appeal alleges, in substance, an implied error; that is, that the outcome is so unreasonable or plainly unjust that this court should infer that a substantial wrong has occurred: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505 and Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [58].
11 The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in the various offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.
12 The general sentencing principles applicable to offences of the kind committed by the appellant are well known. General and personal deterrence are the predominant sentencing considerations with respect to Federal drug offences. The simple aim is to stop the importation of dangerous illicit drugs into Australia by providing a powerful disincentive to engage in such conduct. Ordinarily, matters such as the role played by the offender, the position he or she occupied in the drug hierarchy, the quantity and purity of the drug and whether the offences were committed for financial gain will be important. Of course, a sentencer must take into account all relevant matters contained in s 16A of the Crimes Act.
13 The appellant's overall criminality was high. He engaged in a joint criminal enterprise to import substantial quantities of high purity methamphetamine into Australia. The appellant committed these offences for profit. A seriously aggravating feature of his offending was the repetitive nature of the appellant's illegal activities. Some accumulation of the sentences imposed was required to reflect this, and to provide for proper punishment and deterrence. The appellant's favourable antecedents carry less weight. The most significant mitigating circumstances were the appellant's pleas of guilty and his cooperation.
14 The principles with respect to past and future cooperation in Federal sentencing are well-known and accepted. They were described by this court in R v Baldock [2010] WASCA 170; (2010) 203 A Crim R 214 and Cavill v The Queen [2014] WASCA 77 and need not be repeated. The appellant's cooperation was substantial. So too was the discount his Honour gave. When regard is had to the appellant's cooperation as detailed in the letters provided to the learned sentencing judge, and acknowledging the risks associated therewith, his Honour's assessment of the discount for the appellant's cooperation was, in my view, well open to him.
15 When all of the circumstances of the case are considered, it is not reasonably arguable that the total effective sentence of 8 years 8 months' imprisonment infringed the first limb of the totality principle.
Application to adduce additional evidence
16 By application filed on 3 June 2015, the appellant sought to adduce additional evidence in this appeal pursuant to s 40(1) of the Criminal Appeals Act 2004 (WA). The additional evidence sought to be adduced comprised an affidavit sworn by the appellant on 28 May 2015.
17 A summary of the contents of this affidavit is set out in Part B of the confidential memorandum annexed to these reasons and concern events which have occurred to the appellant in custody.
18 As I have said, the risk of matters of this character was accepted in the sentencing proceedings. The events described in the affidavit, if accepted, would not materially affect the outcome of the appeal. The application to adduce additional evidence must be dismissed.
Conclusion
19 The orders that I would make in this appeal are:
1. The application to adduce additional evidence filed on 3 June 2015 is dismissed.
2. Leave to appeal is refused.
3. The appeal is dismissed.
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