Pitassi v Graham
[2014] WASC 7
•23 JANUARY 2014
PITASSI -v- GRAHAM [2014] WASC 7
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 7 | |
| Case No: | SJA:1088/2013 | 19 NOVEMBER 2013 | |
| Coram: | ALLANSON J | 23/01/14 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed in part Appellant resentenced | ||
| B | |||
| PDF Version |
| Parties: | STEPHEN ANTHONY PITASSI CHADD MAXWELL GRAHAM DAVID JOHN KNIGHT |
Catchwords: | Criminal law Appeal against sentence Totality principle Whether magistrate took into account matters already dealt with in the District Court Turns on own facts |
Legislation: | Criminal Code 1913 (WA), s 428 Misuse of Drugs Act 1981 (WA) |
Case References: | Marzano v Procopis [2009] WASC 3323 Roffey v The State of Western Australia [2007] WASCA 246 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CHADD MAXWELL GRAHAM
First Respondent
DAVID JOHN KNIGHT
Second Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE K M TAVENER
File No : JO 9536 of 2011, JO 9537 of 2011, JO 9538 of 2011, JO 9539 of 2011, JO 9541 of 2011, JO 9542 of 2011, JO 6801 of 2012
Catchwords:
Criminal law - Appeal against sentence - Totality principle - Whether magistrate took into account matters already dealt with in the District Court - Turns on own facts
Legislation:
Criminal Code 1913 (WA), s 428
Misuse of Drugs Act 1981 (WA)
Result:
Leave to appeal granted
Appeal allowed in part
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant : Mr N Papas SC & Mr B A Jackson
First Respondent : Mr L M Fox
Second Respondent : Mr L M Fox
Solicitors:
Appellant : Holborn Lenhoff Massey
First Respondent : Director of Public Prosecutions (WA)
Second Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Marzano v Procopis [2009] WASC 3323
Roffey v The State of Western Australia [2007] WASCA 246
1 ALLANSON J: On 16 May 2013 Stephen Anthony Pitassi was convicted in the Magistrates Court at Perth of possessing $60,000 cash that was reasonably suspected to have been unlawfully obtained, contrary to s 428 of the Criminal Code 1913 (WA). On 3 July 2013 Mr Pitassi pleaded guilty in the Magistrates Court to six other summary offences, including another offence under s 428, this time in relation to $120,000 cash.
2 Mr Pitassi was sentenced on 9 July 2013 for all seven offences. The sentence imposed included sentences of 6 months' imprisonment and 3 months' imprisonment for the two offences under s 428, to be served cumulatively on each other and on a term already being served. Mr Pitassi seeks leave to appeal those sentences.
The facts
3 On 17 August 2011 the police executed a search warrant pursuant to the Misuse of Drugs Act 1981 (WA) at Mr Pitassi's address. During the search the police located 104 g of a powder containing cocaine and methyl amphetamine, 38.5 g of a cutting agent, $60,000 cash, and a pistol and a large quantity of ammunition. As a result, Mr Pitassi was charged with two counts of possessing a prohibited drug, and the offence under s 428 in relation to the $60,000. Mr Pitassi was also charged with three indictable offences: possession of a prohibited drug with intent to sell or supply, possession of a firearm in circumstances of aggravation, and possession of ammunition without a licence.
4 On 31 May 2012, Mr Pitassi was found in possession of $120,000 cash and charged with a separate offence of possession property that was reasonably suspected to have been unlawfully obtained.
The grounds of appeal
5 Mr Pitassi seeks leave to appeal on a single ground of appeal with five particulars. The appeal proceeded on the basis that each particular was a separate ground of appeal.
6 Mr Pitassi says that the magistrate erred in imposing a sentence that was excessive in that he:
(1) failed to properly take into account principles of totality;
(2) took into account matters for which the appellant had already been dealt with in the District Court;
(3) took into account irrelevant matters;
(4) approached the sentencing task as if the appellant was involved in drug trafficking and otherwise failing to apply the principles set out in Marzano v Procopis [2009] WASC 3323; and
(5) failed to make the appellant eligible for parole.
7 The respondent conceded the fifth ground of appeal. The concession was properly made. Making Mr Pitassi eligible for parole may not, however, affect the length of the term he must serve before being considered for parole.
The District Court proceedings
8 The indictable offences were dealt with first.
9 On 3 December 2012 Mr Pitassi pleaded guilty to the three indictable offences before Sleight DCJ in the District Court. The State submitted that Mr Pitassi should be sentenced on the basis that he was part of a commercial drug dealing operation, and was in possession of cocaine (the 104 g of powder containing cocaine and methyl amphetamine) with intent to sell. Mr Pitassi claimed that he intended only to supply it. There was a trial of this issue for the purpose of sentencing.
10 The trial judge delivered his decision on 6 June 2013. His Honour was satisfied that the powder was a cutting agent with which to dilute cocaine to sell to others, and that Mr Pitassi was using it for this purpose and intended to sell it. His Honour found:
[This] was the only inference reasonably available given the multitude of drug dealing indicia found on the premises. Of particular significance I believe is the $60,000 cash which is so typically found on premises where drug dealing occurs.
11 Later his Honour said:
The quantity of cash, the quantity of the admixture containing cocaine and the other drug dealing indicia together suggest quite an elaborate drug dealing enterprise by Mr Pitassi.
12 His Honour sentence Mr Pitassi to 3 years imprisonment for the possession of the prohibited drug with intent to sell or supply; to 12 months' imprisonment for unlicensed possession of a firearm, to be served concurrently; and to 6 months' imprisonment for unlicensed possession of ammunition, to be served concurrently. The total effective sentence was 4 years' imprisonment, with eligibility for parole.
13 In his sentencing remarks, Sleight DCJ commented again on the significance of the cash found in the search on 17 August 2011. Referring to the psychological evidence presented in the pre-sentence report, his Honour said:
However, your low level of intellectual functioning does not, in my opinion, reduce significantly your culpability or make you an inappropriate vehicle to set a sentence of general deterrence. The presence of a high quality cutting agent, $60,000 in cash, an elaborate surveillance system, the money counter, tick lists and weapons, all suggest a level of sophistication that demonstrates that you knew exactly what you were doing, and notwithstanding your low intelligence you have a reasonable level of functioning.
14 His Honour mentioned the indicia of drug dealing again to find that Mr Pitassi was at a higher level in the drug distribution network than a street dealer, and was involved in a 'fairly significant enterprise'.
The Magistrates Court proceedings
15 On 16 May 2013 Mr Pitassi was convicted after trial in the Magistrates Court on the charge under s 428 of the Criminal Code relating to the $60,000 that was found in the search. On 3 July 2013 he pleaded guilty to in the Magistrates Court to six other summary offences, including the offence under s 428 in relation to $120,000 cash. Mr Pitassi was sentenced on 9 July 2013 for all of the summary offences.
16 In his sentencing remarks, the magistrate said:
(1) he took the view that the $60,000 cash found during the search of Mr Pitassi's premises was 'drug-derived', it being found at the same time as the drugs and the gun (for which Mr Pitassi was sentenced in the District Court);
(2) he did not accept Mr Pitassi's explanation for where the money came from and found it was not true;
(3) the $120,000 cash found in May 2012 was from 'an unknown illicit activity';
(4) it appeared that others were 'using [Mr Pitassi] to assist them in conducting a drug operation'.
17 His Honour continued:
[You] are able to understand and have understood that what you did was an illegal act and you continued to act in that way, that is, even after the police raided the house in which they found you with drugs … you continued to be involved in illegal activities. That is, you are capable of making choices and decisions and there are people who are involved in the drug trade who have been using you to facilitate their business … Certainly, the involved in the drug trade brings with it the potential for higher returns on investment but at the same time there is a higher risk. That is, if you get caught the risk of imprisonment is quite high.
18 The magistrate concluded that imprisonment was the only option, referring again to the need for general and specific deterrence of people in the drug trade, and the need to protect the community. In speaking of the seriousness of the offences he referred to Mr Pitassi holding money for the drug business and holding the proceeds of drug sales. On that basis, the magistrate concluded that each offence under s 428 should attract a cumulative sentence.
19 He imposed the following sentences:
• imprisonment for 6 months for possession of the $60,000 cash;
• imprisonment for 3 months for possession of the $120,000 cash (after a discount of 35% for the early plea of guilty;
• imprisonment for 1 month concurrent for each of the other five offences.
20 The effect of the sentence imposed by the magistrate was that Mr Pitassi was to serve 9 months' imprisonment, cumulative on the term imposed in the District Court.
Grounds 1, 2 and 3
21 These complaints should be considered together.
22 A sentence can offend the second limb of the totality principle if it is crushing in the relevant sense: see Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26]. A sentence that is not crushing can still be inappropriately long under the first limb of the totality principle, where the effective sentence does not bear a proper relationship to the overall criminality involved. Where an offender is being sentenced for two or more offences, accumulation and concurrency are tools to ensure that the totality of the sentence is appropriate.
23 In his sentencing remarks, the magistrate referred to the totality principle, but only to whether the sentence would be crushing. The addition of nine months to the sentence to be served cannot reasonably be argued to be 'crushing' in the relevant sense.
24 Although the magistrate confined his remarks to the second limb of the principle, that does not necessarily lead to the conclusion that his Honour failed to consider the first limb. But the magistrate had to have proper regard to the basis on which Mr Pitassi was sentenced in the District Court if he was to impose a sentence which overall bears a proper relationship to the criminality of Mr Pitassi's conduct.
25 Mr Pitassi had not been found with cocaine that he could sell on its own - the quantity was sufficient to enliven the statutory presumption of intent, but the purity of the drug was too low for it to be sold. The finding of possession with intent to sell, and the sentence, were based on Mr Pitassi intending to sell the drug he was in possession of mixed with other, more pure, drug. The sentence imposed by Sleight DCJ for possession of cocaine with intent to sell took into account that Mr Pitassi was found with $60,000. He was sentenced as a participant in a significant drug distribution network.
26 The magistrate similarly sentenced on the basis that Mr Pitassi was involved in the drug trade, by reason of the same facts. In these circumstances, in my opinion, the magistrate erred in describing the possession of $60,000 as 'stand-alone', when it was part of the overall criminality which resulted in the imposition of the sentence of 4 years in the District Court. The sentence imposed by Sleight DCJ properly reflected the total criminality of Mr Pitassi's conduct. The cumulative term was wrong in principle. With regard to that sentence, I would grant leave and allow the appeal.
27 I will consider the proper sentence to be imposed after consideration of other grounds.
28 The same reasoning cannot apply to the three months imposed for possession of the $120,000. It truly stands alone, being committed nine months later. The unlawful possession of such a large sum, in an independent event, could properly be seen as calling for additional punishment. Even if his Honour addressed only the second limb of the totality principle, it was appropriate to treat this offence as a separate act.
Ground 4
29 In a way, this ground is another facet of the same argument. In sentencing for possession of the two sums of cash, the magistrate imposed cumulative terms of imprisonment to reflect the need for general and specific deterrence of people in the drug trade, and the need to protect the community.
30 The 'principles' to which this ground refers are an explanation by Heenan J in Marzano v Procopis [61] - [64] of the elements of the offence under s 428, and how that affects sentencing for such an offence. His Honour said of a conviction under s 428 that it does not constitute a finding that the property in question was, in fact, stolen or unlawfully obtained. The punishment of the offender, or factors relevant to the sentence such as general or personal deterrence, cannot properly be founded on a conclusion that the conviction carries such a finding. To draw that conclusion as part of the sentencing process is wrong, and may involve punishing the offender for an offence for which he has been neither convicted nor charged.
31 The sentence imposed on Mr Pitassi for possession of the $60,000 has to be set aside for other reasons. The magistrate also erred in imposing the sentence of three months' imprisonment for possession of $120,000 because he based that sentence on Mr Pitassi's involvement in the drug trade, and the resulting need for deterrence and protection of the community. Those considerations were not established by the plea of guilty, and were not relevant to the sentence.
Conclusion and resentencing
32 The sentence imposed on charge number JO 9539 of 2011 (for the first offence under s 428) should be set aside. In resentencing, I take into account that the sentence imposed by Sleight DCJ reflects the overall criminality in the possession of the cocaine and firearm and ammunition, in the circumstances where Mr Pitassi had other indicia of drug dealing, including the cash. An appropriate sentence in the circumstances is 2 months' imprisonment, and it should be served concurrently with the term imposed in the District Court.
33 The sentence imposed for charge number JO 6801 of 2012 (the second offence under s 428) was, however, in the proper range for the offence. The possession of such a large sum of money in the circumstances warranted a term of imprisonment. Mr Pitassi could be given only limited mitigation for his personal circumstances, particularly where the offence was committed while on bail. The circumstances also call for a cumulative term: the offence was committed nine months after the other offences, and is quite discrete from the events of August 2011.
34 Accordingly, I would grant leave to appeal and allow the appeal in part. The sentence of 6 months' imprisonment on charge number JO 9539 of 2011 is set aside, and in lieu I impose a term of 2 months to be served concurrently. I would not, however, set aside the sentence on charge number JO 6801 of 2012, or the order that it be served cumulatively. Even though the grounds of appeal might be decided in favour of the appellant, I am satisfied that no substantial miscarriage of justice has occurred, except in relation to eligibility for parole.
35 I further order that Mr Pitassi is eligible for parole on both sentences, and allow the appeal on JO 6801 of 2012 to that extent.
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