R v Hafner
[2002] WASCA 211
•7 AUGUST 2002
R -v- HAFNER [2002] WASCA 211
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 211 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:34/2002 | 20 JUNE 2002 | |
| Coram: | MURRAY J STEYTLER J TEMPLEMAN J | 7/08/02 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | THE QUEEN DARREN JOHN HAFNER |
Catchwords: | Criminal law and procedure Sentencing Crown appeal One count of conspiracy to possess heroin with intent to sell or supply and one count of attempting to sell or supply methylamphetamine Whether total sentence of 7 years manifestly inadequate Effect of respondent's role in distribution chain Importance of quantity and quality of drugs No error in discretion demonstrated Turns on own facts |
Legislation: | Criminal Code (WA), s 688(2)(d) |
Case References: | Aconi v The Queen [2001] WASCA 211 Delovski v The Queen [2002] WASCA 88 Grakalic v The Queen [2002] WASCA 139 Quach v The Queen [1999] WASCA 210 R v Clarke [1996] 2 VR 520 R v Cottrell (1989) 42 A Crim R 31 R v Olbrich (1999) 199 CLR 270 R v White [2002] WASCA 112 S v The Queen [2000] WASCA 34 Watson v The Queen [2000] WASCA 119 Wong v The Queen (2001) 185 ALR 233; [2001] HCA 64 Attorney-General v Tichy (1982) 30 SASR 84 Cameron v The Queen [2002] HCA 6 Dinsdale v The Queen (2000) 202 CLR 321 Everett v The Queen (1994) 181 CLR 295 Leonard v The Queen, unreported; CCA SCt of WA; Library No 990152, 29 March 1999 Lowndes v The Queen (1999) 195 CLR 665 Newman & Turnbull v The Queen [1997] 1 VR 146 Pop v The Queen [2000] WASCA 283 R v Bellissimo (1996) 84 A Crim R 465 R v Dodge (1988) 34 A Crim R 325 R v Duncan [1998] 3 VR 208 R v Grein [1989] WAR 178 R v Mantini [1998] 3 VR 340 R v O'Rourke [1997] 1 VR 246 R v Pickett [1986] 2 Qd R 441 R v Tait (1979) 46 FLR 386 Verrier v Director of Public Prosecutions [1967] 2 AC 195 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- HAFNER [2002] WASCA 211 CORAM : MURRAY J
- STEYTLER J
TEMPLEMAN J
- Appellant
AND
DARREN JOHN HAFNER
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Crown appeal - One count of conspiracy to possess heroin with intent to sell or supply and one count of attempting to sell or supply methylamphetamine - Whether total sentence of 7 years manifestly inadequate - Effect of respondent's role in distribution chain - Importance of quantity and quality of drugs - No error in discretion demonstrated - Turns on own facts
Legislation:
Criminal Code (WA), s 688(2)(d)
(Page 2)
Result:
Application for leave to appeal refused
Category: B
Representation:
Counsel:
Appellant : Mr K P Bates
Respondent : Mr P F Tehan QC
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Leanne Warren & Associates
Case(s) referred to in judgment(s):
Aconi v The Queen [2001] WASCA 211
Delovski v The Queen [2002] WASCA 88
Grakalic v The Queen [2002] WASCA 139
Quach v The Queen [1999] WASCA 210
R v Clarke [1996] 2 VR 520
R v Cottrell (1989) 42 A Crim R 31
R v Olbrich (1999) 199 CLR 270
R v White [2002] WASCA 112
S v The Queen [2000] WASCA 34
Watson v The Queen [2000] WASCA 119
Wong v The Queen (2001) 185 ALR 233; [2001] HCA 64
Case(s) also cited:
Attorney-General v Tichy (1982) 30 SASR 84
Cameron v The Queen [2002] HCA 6
Dinsdale v The Queen (2000) 202 CLR 321
Everett v The Queen (1994) 181 CLR 295
(Page 3)
Leonard v The Queen, unreported; CCA SCt of WA; Library No 990152, 29 March 1999
Lowndes v The Queen (1999) 195 CLR 665
Newman & Turnbull v The Queen [1997] 1 VR 146
Pop v The Queen [2000] WASCA 283
R v Bellissimo (1996) 84 A Crim R 465
R v Dodge (1988) 34 A Crim R 325
R v Duncan [1998] 3 VR 208
R v Grein [1989] WAR 178
R v Mantini [1998] 3 VR 340
R v O'Rourke [1997] 1 VR 246
R v Pickett [1986] 2 Qd R 441
R v Tait (1979) 46 FLR 386
Verrier v Director of Public Prosecutions [1967] 2 AC 195
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1 MURRAY J: I am in entire agreement with the reasons of Steytler J and could add nothing of any utility. The appeal should be dismissed.
2 STEYTLER J: This is a Crown appeal against sentence.
3 The respondent was convicted, upon his plea of guilty, of one count of conspiracy to possess a prohibited drug, namely heroin, with intent to sell or supply it to another and one count of attempting to sell or supply a prohibited drug, namely methylamphetamine, to another. He was sentenced to 7 years' imprisonment in respect of the first of those counts and to a period of 6 years' imprisonment in respect of the second of them. The terms of imprisonment were made concurrent and the respondent was declared to be eligible for parole.
4 The respondent was, at the time of these offences, a resident of Melbourne. He visited Perth during December 2000. There he was contacted by a man known as Joseph Cardile, who asked him to obtain some heroin for him. On the respondent's return to Melbourne he received a number of telephone calls from Cardile, asking the respondent to provide him with a sample of heroin. The respondent eventually agreed to do so. On the evening of 26 February 2001, he contacted an associate, one Kiro Milenkovski, and asked Milenkovski to take a sample of the drug to Cardile. He gave Milenkovski instructions on how to locate a coffee shop operated by Cardile in Northbridge and gave him Cardile's telephone number.
5 On 31 March 2001 Cardile rang the respondent, who told Cardile that he could supply him with 12½ ounces of heroin at a price of about $9000 per ounce. Cardile asked the respondent to send someone else over to pick up the money. The respondent agreed to arrange this. The respondent then arranged for another man, Darren Hickey, to fly to Perth on the following day. Hickey flew to Perth under the respondent's name.
6 Later that day the respondent rang Cardile and told him that 12½ ounces of heroin would cost $100,000. The respondent also spoke to Hickey who told him, in effect, that he had received $50,000 of the purchase price from Cardile, of which he had taken $1000 for his air fare. Hickey then returned to Melbourne.
7 On the following day, 2 April 2001, the respondent rang Cardile and suggested that he pay the balance of the purchase money into specified bank accounts. Cardile expressed reluctance to do that and asked the respondent if he could arrange for Milenkovski to pick up the money and
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put it into the accounts. The respondent agreed to do so. Thereafter, the respondent spoke to Milenkovski and told him that Cardile would be paying another $40,000 and arranged for Milenkovski to pick up the money. He told Milenkovski to place $9900 into a specified account. He chose that figure because it was below the $10,000 threshold which had to be reported under the Austrac scheme. He told Milenkovski that he would provide him with the details of three other accounts later. Arrangements to this effect were subsequently made, additional money was transferred and the drugs were ultimately dispatched by courier to Perth. The respondent also arranged for Milenkovski, who was to pick up the courier, to be given a quantity of amphetamine for his services.
8 When the courier, Steven Kiraly, arrived, he was arrested. He was found to have in his possession a bag containing 244 grams of heroin and a note. He also had a smaller package containing 21.2 grams of methylamphetamine, presumably being the reward for Milenkovski's services. The heroin had a purity of 13 per cent and the methylamphetamine had a purity of 36 per cent. The note which was found with the heroin read as follows:
"The stuff I saw first was cut and powdery so I didn't get it[.] [T]hey jumped on it[.] [I]t was shit so I went and had a look at a couple of new people[.] [A]t the end I … [ended] up with this[.] [T]his … is like the old days very very strong here[.] [T]hey make … into 5 so it cost a little bit xtra [sic] 10½ each[.] [I]f your [sic] not happy just ring me and I will off load it where you are strait [sic] away. [N]ext time we will get it a lot better (*first time with them*) but it is the best[.] [A]ll you have to do now is pay Darren 5 and ticket back home[.]
*first 50 - 1 equals 49 for fare
*second with little block 900 short out of 45
So you have to give me return fare 16 plus 9 short is 2½
[T]here still isn't much around so make them pay through the nose. Sorry it was so much but I didn't make anything[.] [O]ne minute it's here then it's gone so I jumped on it[.] [A]ll together you have to give another 7½ + fare home".
9 The sentencing Judge, when he came to sentence the respondent, referred briefly to these facts and to the statutory penalties for the offences before mentioning that both heroin and methylamphetamine were drugs
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- which were "at the high end of the scale of seriousness" and which posed serious dangers to the community. His Honour went on to say:
"Against that background the need for deterrence, both personal and general, has been emphasised by the courts time and again and personal factors, while they are still significant, can seldom outweigh this consideration of the need for deterrence. In addition to that it should be borne in mind of course that conspiracy by its nature is a crime which is often difficult to detect and an offence which requires on frequent occasions sophisticated investigative techniques on the part of the police.
As I read the authorities, in assessing your level of culpability it's not necessary that I fix with any absolute precision your position in the hierarchy of distribution of these drugs. However, it is clear on the evidence before me that you were more than a foot soldier in the conspiracy and through your counsel it is clear that you don't deny that.
In my view the note is of significance and that and the other evidence in the brief, and the evidence that I've heard this morning, established I am satisfied quite clearly that you did play a significant part in the criminal enterprise of possessing heroin with intent to sell or supply and in attempting to supply methylamphetamine.
It is clear that your role was to find the heroin, to negotiate its purchase, to arrange for the transfer of funds and to arrange delivery. I note that through your counsel you have conceded that you did understate your role in these events to the writer of the pre-sentence report which I have read but it is stressed on your behalf that you were not the source of the drugs, the ultimate supplier of the drugs nor the financier and of course I accept that submission.
Nevertheless in my view you were something of a key man in the conspiracy. As I have put to your counsel, you were a middle man, a go between, and someone without whom the transaction could not have proceeded. It's against that background then that I consider that the seriousness of the offending and your culpability must be judged."
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- 10 years, been employed by an electrical contractor. He was married with two children, although his marriage had recently come to an end. His children were with his wife and there were Family Court proceedings under way. He had a number of drug-related convictions, the most serious of which appears to have been one, in October 1997, for trafficking in heroin. He was also convicted, at the time of his trafficking conviction, of using heroin, possession of cannabis and possession of amphetamines. He was sentenced, in respect of all of those offences, to a total of 9 months' imprisonment, of which 3 months was suspended.
11 The respondent was a long-standing drug user, having started using cannabis at the age of 17 and heroin at the age of 25. After leaving prison in 1998, the respondent started a Naltrexone programme but relapsed and commenced using heroin once again. He was still doing so when he committed the offences the subject of this appeal. Evidence in the form of a report dated 16 January 2002 by a medical practitioner, Dr Diner, established that the respondent had "done multiple programmes over the years" in an attempt to overcome his heroin addiction. Dr Diner believed that the respondent was genuine in wanting to give up his dependence.
12 The sentencing Judge, after mentioning these matters, and saying that there was a reasonable prospect that the respondent was on the road to recovering from his addiction, said that he took into account, also, the respondent's plea of guilty on the fast-track system. However, he added that the evidence against the respondent had been such that a conviction was inevitable and that the respondent had provided no "positive assistance" to the prosecution. Finally, his Honour said, he took into account favourable references which had been provided in respect of the respondent, although these could not outweigh, in any significant degree, considerations of the need for deterrence.
13 His Honour then went on to say:
"At the end of the day the view which I have formed is that you were an active and a willing participant in a criminal enterprise to bring prohibited drugs to Western Australia. The crown has put to me that you were very much an organiser behind the enterprise but the evidence does not enable me to come to that conclusion. Nevertheless I am satisfied that you played a key role in the conspiracy. You were motivated clearly enough to become involved in it for personal gain, either in money or money's worth in the form of drugs even if at the end it was your own drug use which drove you to do what you did. The
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- point is that the importance of your role on the face of it was significant and it seems to me that it is proper to conclude that without you the drugs may not have arrived in Western Australia at all."
14 His Honour then imposed the sentences to which I have referred.
15 So far as the issue of concurrency is concerned, his Honour said:
"I have given consideration to the question of concurrency or not . It does seem to me in the end that there is some significant overlapping in relation to the facts relating to the two offences. They can be regarded as one course of conduct and in all the circumstances the terms to be served by you should be served concurrently."
16 The Crown has raised five grounds of appeal, one of which (ground 4) has since been abandoned. The remaining grounds are as follows:
1. The learned sentencing Judge erred in imposing a sentence for Count 1 which was manifestly inadequate.
PARTICULARS
- The sentence imposed failed to reflect the following matters:
(a) The large quantity of heroin seized;
(b) The high level of sophistication and degree of criminality involved in the enterprise; and
(c) The standards of sentencing customarily observed for offences of this nature.
2. The learned sentencing Judge erred in concluding that the Respondent was not an organiser behind the criminal enterprise.
3. The learned sentencing Judge erred in ordering that the entire sentence of count 2 be served concurrently with count 1.
…
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- 5. The overall sentence imposed by the learned sentencing Judge failed to adequately reflect the need for general and specific deterrence and the need for condign punishment to protect the community."
17 In this State, Crown appeals against sentence are brought as of right in cases of punishment imposed or orders made in respect of a person convicted on indictment or convicted by a court of summary jurisdiction and committed for sentence: s 688(2)(d) of the Criminal Code. However, it is important to bear in mind a number of principles which are now well established in relation to appeals of that kind. These are summarised in R v Clarke [1996] 2 VR 520, at 522, where Charles JA (with whom Winneke P and Hayne JA were in agreement) said the following:
"This is an appeal by the Director of Public Prosecutions. The principles which apply to Crown appeals are well established: Griffiths v R (1977) 137 CLR 293 per Barwick CJ at 310; Malvaso v R (1989) 168 CLR 227 per Deane and McHugh JJ at 234; Everett v R (1994) 181 CLR 295 per Brennan, Deane, Dawson and Gaudron JJ at 299. These principles were recently stated in summary form in the judgment of the Court of Criminal Appeal of New South Wales in R v Allpass (1993) 72 A Crim R 561 at 562 - 3. See also R v Osenkowski (1982) 30 SASR 212 at 212 - 13 per King CJ.
The relevant rules may be stated in the following propositions:
1. An appeal by the Crown should be brought only in 'the rare and exceptional case' (Everett at 299) to establish some point of principle. The reason is that such appeals 'represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy' (Malvaso at 234).
2. Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300); (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths
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- at 310); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (as to the last three, see Osenkowski at 213); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306).
- 3. A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact (Allpass at 562 - 3).
Allpass is also authority for the following propositions:
4. When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.
5. An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance."
18 As will be apparent from what I have earlier said, the Crown contends, by ground 1 of the grounds of appeal, that the sentence imposed in respect of count 1 was manifestly inadequate, having regard for the large quantity of heroin seized, the level of sophistication and criminality involved and sentencing standards customarily observed for offences of this nature. The Crown supported its submission in this respect by relying, in particular, on four cases, being Grakalic v The Queen [2002] WASCA 139, Delovski v The Queen [2002] WASCA 88, Aconi v The
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- Queen [2001] WASCA 211 and Watson v The Queen [2000] WASCA 119.
19 In Grakalic the applicant was sentenced to a period of 12 years' imprisonment on a charge of trafficking in heroin. He had pleaded not guilty to the charge and had been convicted by a jury. He had been the principal in the enterprise and the offence had involved 127 grams of heroin with a purity of 57 per cent. While he had no criminal record, there was evidence of an ongoing course of dealing in drugs. The applicant had shown no real remorse for his conduct. The Court of Criminal Appeal dismissed his application for leave to appeal against sentence.
20 In Delovski the applicant was sentenced to a period of 9 years' imprisonment in respect of the sale of 524 grams of heroin with a purity of 25 per cent. He had arranged for the drug to be transported to Perth from Melbourne. He was also directly involved in the arrangements for completion of the proposed sale and supplied a sample of the drug to another offender. He was said to have "ranked at the upper end of the commercial hierarchy", although it was accepted that he became involved in the commission of the offence because he was under an obligation to his brother, who was to have been the supplier of the heroin but was unable to make the trip to Perth. The applicant had pleaded guilty and had had no prior criminal record.
21 In Aconi the applicant was, after a successful appeal, sentenced to 13 years' imprisonment for offences involving, in total, 592 grams of heroin involving a degree of purity ranging between 43 per cent and 57 per cent. He had had an important role in the chain of distribution, having had access, for distribution purposes, to relatively large quantities of high grade heroin. He had pleaded guilty to the offences with which he had been charged. He had no prior convictions for drug offences.
22 In Watson the applicant had been convicted on two indictments, the first involving four counts charging the sale of heroin (and various other counts charging drug-related offences) and the second involving one count of possession of heroin with intent to sell or supply it to another. On appeal, he was sentenced to a term of 5 years' imprisonment on the first indictment and to a term of 10 years' imprisonment on the second. The second indictment involved a total of 225 grams of heroin with a purity varying from 47 per cent to 81 per cent. The applicant was found to have been the wealthy operator of a large scale drug-selling business which he had regarded as his business. He was not himself a user of
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- heroin. The offences the subject of the first indictment occurred between 27 February 1996 and 17 May 1996. The offence the subject of the second indictment occurred on 9 December 1996, some months after the applicant had been charged with the offences the subject of the first indictment and while he was on bail in respect of those offences. All of the offences were committed while the applicant was on parole in respect of serious offences committed in 1992. The applicant pleaded guilty to the various charges against him but a trial of issues relating to sentencing was held, the outcome of which was adverse to the applicant. His application for leave to appeal against sentence was refused.
23 An exercise comparing cases of this kind is, as counsel for the appellant acknowledged, of only limited utility. Each case turns upon its own facts and circumstances. Much turns upon such matters as the quantity of drug involved, the offender's role in the delivery and distribution of the drug, the extent of the offender's knowledge about what was being done and the reward which the offender hoped to gain (see Wong v The Queen (2001) 185 ALR 233; [2001] HCA 64 at [64]). So, by way of example, when regard is had for the purity of the heroin supplied in this case and in each of the cases to which I have referred, it can be seen that, in this case, 31.72 grams of pure heroin was supplied as compared with Grakalic, in which 72.39 grams of pure heroin was supplied, Delovski, in which 130 grams of pure heroin was supplied, Aconi, in which 321.76 grams of pure heroin was supplied and Watson, in which, on the charge the subject of the second indictment alone, well over 100 grams of pure heroin was supplied. While one cannot, of course, arrive at a comparable result merely by multiplying the weight of pure heroin known to be delivered by a number of years (as to which see Wong, above, at [31], [56] and [67] - [69]), the fact remains that the quantity and quality of the drug involved in the commission of the offence is a consideration of some importance.
24 There are other differences between this case and those referred to by the Crown. The respondent in this case pleaded guilty on the fast-track system, unlike the applicant in Grakalic. Moreover, no trial of issues was required in this case, unlike the situation in Watson. Also, while the respondent in this case undoubtedly hoped to profit from his crimes, he did need money in order to feed his addiction (which he now genuinely hopes to overcome), unlike the applicant in each of Grakalic, Delovski, Aconi and Watson.
25 There are also other cases to which reference might be made. So, for example, counsel for the appellant relied upon S v The Queen [2000]
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- WASCA 34 at [13], in which Anderson J said (with the agreement of Kennedy and Wallwork JJ) that, since the decision in R v Cottrell (1989) 42 A Crim R 31, it has been accepted that prison sentences of between 7 and 10 years "represent the range of punishment for possession of around about 100 grams of heroin/cocaine of high purity - anything above about 70 per cent". In S itself the applicant (who had pleaded guilty and provided a "high" level of co-operation to the authorities) was, after a successful appeal, sentenced to an aggregate of 5 years' imprisonment for offences involving 90 grams of heroin and 18.29 grams of cocaine, both having a high level of purity.
26 When regard is had to the differing sentences imposed in these, and other, cases (see, for example, those considered in Quach v The Queen [1999] WASCA 210), it cannot, in my opinion, be said that the sentence imposed in this case was so lenient as to warrant the intervention of this Court. While there is no doubt (as the sentencing Judge recognised) that the difficulty of detecting offences of this kind and the social consequences which follow from their commission call for deterrence and stern punishment (see Wong, above, at [64]), and while the punishment imposed in this case was, in my respectful opinion, undoubtedly lenient, having regard for the significant quantity of the heroin involved, it was not, in my opinion, so lenient as to demonstrate an error in principle justifying interference pursuant to a Crown appeal.
27 So far as ground 2 is concerned, the appellant contends that the sentencing Judge was in error in concluding that the respondent was not an organiser, but was a middle man in the criminal enterprise in which he was involved.
28 It is true that the sentencing Judge said that the evidence did not enable him to classify the respondent as "an organiser behind the enterprise". It is also true that the respondent had, to some extent at least, quite obviously played an organisational role. However, it is important to bear in mind that, shortly before his Honour made his sentencing remarks, there had been some discussion between him and the then counsel for the respondent, in the course of which his Honour expressed his understanding, derived from what counsel for the respondent had said, that the respondent was "more than merely a bit player" and that he was "an essential middle man", not the "ultimate supplier but nevertheless an important link in the transfer of the drugs from one person to another". This exchange took place after the Crown had made a submission that the respondent was "the organising principal of … [the] enterprise". It was apparently with that discussion in mind that the sentencing Judge said that
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- he could not classify the respondent as "an organiser behind the enterprise".
29 It is worth bearing in mind, in this respect, that, in R v Olbrich (1999) 199 CLR 270 at 279, Gleeson CJ and Gaudron, Hayne and Callinan JJ, while accepting that distinctions might usefully be drawn between different kinds of participation in a single enterprise, particularly when these identify different levels of culpability, said that:
"[I]t is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did."
30 Importantly, in this context, the sentencing Judge went on to say that he was satisfied that the respondent had "played a key role in the conspiracy". He also said that the respondent was "more than a foot soldier in the conspiracy" and that he played "a significant part in the criminal enterprise". Most importantly, perhaps, his Honour said, quite correctly, that the respondent's role "was to find the heroin, to negotiate its purchase, to arrange for the transfer of funds and to arrange delivery". His Honour also concluded that the importance of the respondent's role was significant and that, without him, the drugs might not have arrived in Western Australia at all.
31 In all of the circumstances I am not persuaded that ground 2 has been made out.
32 As to ground 3, the Crown's contention is that count 2 was distinct from count 1 in that it related to a reasonably substantial amount of a different drug which was intended for a separate person. Consequently, it submits, the offence warranted separate punishment and some partial accumulation on count 1 in order adequately to reflect the overall criminal conduct.
33 I do not consider that the sentencing Judge made any error in the exercise of his discretion in this respect. As this Court has previously said, in R v White [2002] WASCA 112 at [26], per McKechnie J, there is no hard and fast rule. Instead a sentencing Judge must, in the exercise of the discretion entrusted to him or her, "balance the principle that one transaction generally attracts concurrent sentences with the principle that the overall criminal conduct must be appropriately recognised and that
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distinct acts may in the circumstances attract distinct penalties". In my opinion, it was undoubtedly open to the sentencing Judge to order concurrency in this case, having regard for the fact that the two offences, albeit distinct, occurred in the same course of conduct and were closely connected. I have earlier mentioned that the amphetamine which was supplied to Milenkovski was a reward for his services in respect of the heroin the subject of the first count.
34 That leaves only ground 5, which is to the effect that the overall sentence imposed by the sentencing Judge failed adequately to reflect the need for general and specific deterrence and the need for condign punishment to protect the community. I will not repeat all that I have already said in respect of count 1 and in respect of the discretion to order that the sentence imposed on that count be served concurrently with that imposed on count 2. In the end, while I have some disquiet as to the leniency of the total sentence imposed, I am not prepared to find that it was so lenient as to demonstrate an error of principle.
35 I would consequently refuse leave to appeal.
36 TEMPLEMAN J: I have had the advantage of reading in draft the reasons published by Steytler J. I agree, for the reasons given by his Honour, that this appeal should be dismissed.
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