Olomi v The State of Western Australia

[2004] WASCA 304

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   COURT OF CRIMINAL APPEAL

CITATION:   OLOMI -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 304

CORAM:   MURRAY J

TEMPLEMAN J
MILLER J

HEARD:   20 SEPTEMBER 2004

DELIVERED          :   20 SEPTEMBER 2004

FILE NO/S:   CCA 63 of 2004

BETWEEN:   FAROUK OLOMI

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :O'BRIEN DCJ

File No  :IND 243 of 2001

Catchwords:

Appeal against sentence - Possession of methylamphetamine with intent to sell or supply - Early guilty plea - Whether discount apparent - Whether totality taken into account

Legislation:

Nil

Result:

Leave to appeal refused

Category:    B

Representation:

Counsel:

Appellant:     Mr J McGrath

Respondent:     Mr R E Cock QC

Solicitors:

Appellant:     Michael Tudori

Respondent:     State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Bellisimo v The Queen (1996) A Crim R 464

Cameron v The Queen [2000] WASCA 286

Jarvis v The Queen (1993) 20 WAR 201

1. MURRAY J:  I shall invite Templeman J to give judgment first in this matter.

2. TEMPLEMAN J:  This is an application for leave to appeal against sentence.  The applicant was charged on an indictment containing two counts that on 7 November 2003 he had in his possession a prohibited drug, namely 3,4 methylenedioxy‑n alpha‑dimethylphenylethylamine, MDMA, with intent to sell or supply it to another and in the second count that at the same date and the same place he had in his possession another prohibited drug, methylamphetamine, with intent to sell or supply it to another.  The applicant pleaded guilty on the fast-track system - that is, at the earliest opportunity - and he was sentenced on 20 April this year. 

3. The facts were recited to the learned sentencing Judge, who was told that the offences were discovered in the execution of a search warrant at the applicant's home address.  That search located 53.85 grams of MDMA tablets, being 247 tablets in total.  They were concealed beneath the applicant's bedside cabinet.  A further search revealed that there were 64.48 grams of methylamphetamine in different locations and the applicant's wallet was found to contain $3150 in cash, which he claimed a friend had lent to him.  Also discovered in the search was a set of electronic weighing scales, a large quantity of plastic resealable bags and a notebook containing drug-related notations. 

4. The applicant was interviewed at the time.  He said the money belonged to him but the drugs were not his, that he did not know where they came from and he did not know whose they were. 

5. The applicant was in breach of parole when he was apprehended and he had 987 parole days to serve.  That is nearly three years.  There was also a section 32 notice relating to a quantity of ammunition, some 306 rounds of .22 calibre ammunition, which the applicant had.  That was an offence because he was not in possession of an appropriate licence.  There was also possession of a plastic smoking implement which the applicant said he used to smoke cannabis.

6. Her Honour heard a plea in mitigation on behalf of the applicant and the applicant himself addressed her Honour and expressed remorse for what he had done.  The learned Judge then went on to sentence the applicant and, in so doing, her Honour mentioned that the offences were committed partially to fund his own drug habit but mainly to make some profit, that being an amount of some $30,000 which he stood to make. 

1. Her Honour referred to the extreme seriousness of the offence because these drugs, as her Honour put it, get into the hands of young people and they are very destructive.  Her Honour enlarged on that proposition. 

2. Her Honour then referred to the applicant's personal circumstances and referred to the fact that the applicant's family were in Court together with his partner, who had tragically lost a baby recently.  Her Honour noted that it was clear that these people were able to provide support for the applicant.

3. Her Honour went on to say that insofar as the applicant's record was concerned there is really nothing in his favour.  Pausing there, the record included an offence of armed robbery for which the applicant had previously been imprisoned.  He was on parole from the sentence imposed on him for the armed robbery when he committed these offences.

4. Her Honour went on to say:

   "What I do take into account is the fact that you have pleaded guilty to these offences at the first available opportunity and that attracts a big discount." 

5. Her Honour said the applicant had been drug free for around six months and that indicated his commitment to give up drugs. Her Honour went on to sentence in these terms: she said that in relation to count 1 under the old legislation the offence would attract a sentence of four years' imprisonment, 48 months, which must be reduced by one‑third to 32 months.  Her Honour imposed the same sentence in relation to the second count. 

6. Her Honour did not say expressly what discount she had in mind but, having said that the early plea of guilty at the first opportunity attracted "a big discount" immediately before imposing the sentence, it was clearly in her Honour's mind that the sentence she actually imposed took into account the discount. I might mention that s 8(4) of the Sentencing Act provides:

   "If because of a mitigating factor a Court reduces the sentence it would otherwise have imposed on an offender, the Court must state that fact in open court."

7. That obligation does not require the Judge to say what the discount either in terms of time or percentage would have been or was.  That is to be contrasted with s 8(5), where there is an obligation to state the extent of the reduction.  So it seems to me perfectly plain that the sentence of four years before the adjustment included a discount. 

8. The submissions on behalf of the applicant have referred to a number of authorities in which it has been said that a discount on the fast-track system might be of the order of 20 to 25 per cent or up to 30 to 35 per cent, depending on the circumstances.  In this case, it seems to me that the starting point could well have been 6 years under the old sentencing regime which, reduced to 4, would be a one-third discount.  It may have been in her Honour's mind that the discount should be less than that.  A lesser discount could well have been justified having regard to the circumstances.

9. It seems to me plain that a discount was built in or was taken into account, having regard to the 4-year sentence under the old regime, particularly when one has in mind that the maximum penalty for these offences is 25 years' imprisonment.

10. Her Honour went on to say that the sentences (which were reduced to 32 months, having regard to the recent amendments to the sentencing legislation) were to be served cumulatively, being a total of 64 months.  However, there were, as I have said, 987 parole days owed and yet her Honour made the cumulative sentences for these offences concurrent with the 987 parole days, which her Honour need not have done.  That seems to me to have been a somewhat lenient disposition.

11. The applicant seeks leave to appeal on two grounds.  One was that the sentencing discretion miscarried because her Honour failed to take into account the applicant's fast track plea of guilty.  As I have already said, in my view there is no merit in that because I think her Honour clearly did take that into account. 

12. The second ground is that the sentencing discretion miscarried because the learned sentencing Judge failed to take into account the totality principle.  It is said that sentences of 32 months for each count to be served cumulatively upon each other is excessive in all the circumstances. 

13. In my view the sentences were not excessive.  As I have said, the maximum penalty was 25 years.  They were two quite separate offences.  They were committed by a man who had already had a major conviction for an offence of armed robbery who committed these offences while on parole and who did so in order to make a $30,000 profit.  All of those

factors, it seems to me, combine to result in a very much longer sentence being entirely appropriate and within the exercise of a sound sentencing discretion.  I am quite unable to see that in all the circumstances the sentence contravened the totality principle. 

1. I would also add that although there have been cases where substantially larger quantities of drugs have resulted in similar or perhaps slightly larger sentences being imposed, as I have said, the quantity in this case in all the circumstances did, I think, justify the sentences imposed.  I would not grant leave to appeal.

2. MURRAY J:  I agree that leave should be refused.  It seems to me that, viewed individually, having regard to the motivation of the applicant for committing these offences, having regard to the fact that he was on parole at the time that he did so, having regard to the quantities of the drugs and the circumstances in which they were found and the profit which he anticipated that he might make from sales, individually these terms of two years and eight months in each case were lenient in the circumstances of this case, despite the necessity, with which it seems to me her Honour the trial Judge complied, to have regard to the major factor in mitigation, which was the early pleas of guilty.

3. When viewed in their totality, it also seems to me that there is no ground upon which this Court would be justified in interfering with the terms.  It seems to me that the total term is one which adequately and properly reflects an exercise of discretion to produce an outcome proportionate to the total criminality involved in the commission of these offences and I can see no basis upon which this Court might intervene.  I would refuse leave.

4. MILLER J:  I agree with the reasons delivered by both Templeman and Murray JJ.  I, too, would refuse leave to appeal.