R v Mahasay
[2002] WASCA 336
•4 NOVEMBER 2002
R -v- MAHASAY [2002] WASCA 336
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 336 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:86/2002 | 4 NOVEMBER 2002 | |
| Coram: | TEMPLEMAN J WHEELER J MCKECHNIE J | 4/11/02 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | THE QUEEN MUCDA MAHASAY IVAN RAFAEL PEREIRA |
Catchwords: | Criminal law Sentencing Cross appeal Possession of methylamphetamine with intent Extent to which purity of drug is a factor in sentence |
Legislation: | Nil |
Case References: | Dodd v The Queen [2002] WASCA 55 Fursman v The Queen, unreported; CCA SCT of WA; Library No 7414; 5 December 1988 Giannopoulos v The Queen [2000] WASCA 396 Grimwood v The Queen [2002] WASCA 135 Koushappis v The Queen [2001] WASCA 18 La Rosa v The Queen, unreported; CCA SCt of WA; Library No 960628; 31 October 1996 Marker v The Queen [2002] WASCA 282 Quach v The Queen [1999] WASCA 210 R v Hafner [2002] WASCA 211 R v Olbrich [1999] HCA 54; (1999 199 CLR 270 R v Votano [2000] WASCA 144 Vogel v The Queen [2002] WASCA 261 Wong v The Queen [2001] HCA 64; (2001) 185 ALR 233 Bellissimo v The Queen (1996) 84 A Crim R 465 Collier v The Queen [2001] WASCA 69 Darwell v The Queen (1997) 94 A Crim R 35 Dinsdale v The Queen (2000) 202 CLR 321 Everett and Phillips v The Queen (1994) 181 CLR 295 Koushappis v The Queen, unreported; CCA SCt of WA; Library No 950729; 6 December 1996 Lawton v The Queen [2002] WASCA 199 McKenna v The Queen (1992) 63 A Crim R 452 Paparone v The Queen [2000] WASCA 127 R v Cottrell (1989) 42 A Crim R 31 R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998 Radebe v The Queen [2001] WASCA 254; (2001) 122 A Crim R 559 Sikaloski v The Queen [2000] WASCA 63 Thom v The Queen (2001) 126 A Crim R 196 Vodanovic v The Queen, unreported; CCA SCt of WA; Library No 960056; 9 February 1996 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- MAHASAY [2002] WASCA 336 CORAM : TEMPLEMAN J
- WHEELER J
MCKECHNIE J
- Appellant
AND
MUCDA MAHASAY
Respondent
- Appellant
AND
IVAN RAFAEL PEREIRA
Respondent
Catchwords:
Criminal law - Sentencing - Cross appeal - Possession of methylamphetamine with intent - Extent to which purity of drug is a factor in sentence
(Page 2)
Legislation:
Nil
Result:
Appeal dismissed
Category: A
Representation:
CCA 86 of 2002
Counsel:
Appellant : Mr J Mactaggart
Respondent : Ms G A Archer
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Legal Aid of Western Australia
CCA 87 of 2002
Counsel:
Appellant : Mr J Mactaggart
Respondent : Mr A E Monisse
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Legal Aid of Western Australia
(Page 3)
Case(s) referred to in judgment(s):
Dodd v The Queen [2002] WASCA 55
Fursman v The Queen, unreported; CCA SCT of WA; Library No 7414; 5 December 1988
Giannopoulos v The Queen [2000] WASCA 396
Grimwood v The Queen [2002] WASCA 135
Koushappis v The Queen [2001] WASCA 18
La Rosa v The Queen, unreported; CCA SCt of WA; Library No 960628; 31 October 1996
Marker v The Queen [2002] WASCA 282
Quach v The Queen [1999] WASCA 210
R v Hafner [2002] WASCA 211
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Votano [2000] WASCA 144
Vogel v The Queen [2002] WASCA 261
Wong v The Queen [2001] HCA 64; (2001) 185 ALR 233
Case(s) also cited:
Bellissimo v The Queen (1996) 84 A Crim R 465
Collier v The Queen [2001] WASCA 69
Darwell v The Queen (1997) 94 A Crim R 35
Dinsdale v The Queen (2000) 202 CLR 321
Everett and Phillips v The Queen (1994) 181 CLR 295
Koushappis v The Queen, unreported; CCA SCt of WA; Library No 950729; 6 December 1996
Lawton v The Queen [2002] WASCA 199
McKenna v The Queen (1992) 63 A Crim R 452
Paparone v The Queen [2000] WASCA 127
R v Cottrell (1989) 42 A Crim R 31
R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998
Radebe v The Queen [2001] WASCA 254; (2001) 122 A Crim R 559
Sikaloski v The Queen [2000] WASCA 63
Thom v The Queen (2001) 126 A Crim R 196
Vodanovic v The Queen, unreported; CCA SCt of WA; Library No 960056; 9 February 1996
(Page 4)
1 TEMPLEMAN J: I invite Justice McKechnie to deliver the first judgment.
2 MCKECHNIE J: These Crown appeals raise a principle of sentence for consideration, namely the issue of the purity of a drug and whether it should be taken into account in sentencing. The respondents each pleaded guilty by way of fast-track to one count of possession of methylamphetamine with intent to sell or supply it to another; they, in combination, bringing 2000 tablets of methylamphetamine, known as "ice", into Western Australia from Sydney.
3 Fortunately, their activities came to the notice of police and they were arrested shortly after arrival in Western Australia. The total weight of the tablets was 1808 gms with a purity of 2 per cent. The respondent Mahasay was, at the time of sentence, 19 years old. Pereira was, at the time of sentence, 22 years old. Clearly, their youth is a factor of importance in setting an appropriate sentence. It is clear from the objective facts and from the plea in mitigation that each was involved in a significant way in the distribution of methylamphetamine into the Western Australian community.
4 The very low purity of the tablets was a matter which concerned the sentencing Judge who raised the matter specifically with counsel for the Crown and the defence, asking what effect it would have on sentencing, because he had not come across such a low percentage before.
5 With great respect, the sentencing Judge did not receive the assistance of counsel by way of informed submissions with reference to cases to which he was entitled. In his sentencing remarks the Judge appropriately noted, as Mr Mactaggart for the Crown has pointed out this morning, that the use of amphetamines in our society is a scourge. In dealing with the purity of amphetamines the sentencing Judge said this:
"Say, if this had been methylamphetamine powder then a starting point of about 12 years' imprisonment would have been appropriate. I think because of the relatively low purity that is too high and the starting point I think I should take with respect to this sentence is a sentence of 8 years' imprisonment. Now, from that there needs to be a significant deduction on account of two factors, one of them is the fast-track plea of guilty, the immediate admission of your guilt, and your age as well and in those circumstances, it seems to me that the proper penalty in respect of both of you is a sentence of 5 years' imprisonment."
(Page 5)
6 Although the Crown raises a number of grounds of appeal, the significant ground is that the sentencing Judge erred in that he placed too much emphasis on the relatively low purity of the methylamphetamine in deciding on a starting point for the relevant sentence.
7 The sentencing Judge's approach was a two-tiered approach. Whether such approach is appropriate is now open to question: see Wong v The Queen[2001] HCA 64; (2001) 185 ALR 233. But it must be remembered this Court must determine whether the actual sentence imposed was proper: Grimwood v The Queen [2002] WASCA 135 per Murray J at [17] and [20].
8 The weight of drug is clearly relevant in determining the course of the court of trial, whether the presumption of an intention to sell or supply might arise, and whether the person can be declared a drug trafficker. Each of these matters is set out in the Misuse of Drugs Act 1981 (WA)and the particular amounts necessary to give rise to the presumption are prescribed in the schedule.
9 In Fursman v The Queen, unreported; CCA SCT of WA; Library No 7414; 5 December 1988, Brinsden J traced through the Misuse of Drugs Act and Poisons Act 1964 (WA), pointing out that the offence under the Misuse of Drugs Act, s 6, was to possess not only the pure drug but also an admixture of it. The question which arises is whether the purity of the drug is a relevant mitigating or, if appropriate, aggravating circumstance for sentencing.
10 If a person is found in possession of a quantity of prohibited drugs of high purity it may lead to an inference about that person's involvement in the commercial distribution of the drug. Correspondingly, if a person is in possession of a quantity of drugs of very low purity, it may lead to an inference that the person is fairly low down within a drug conspiracy.
11 In Wong, Gaudron, Gummow and Hayne JJ posed the question, at [67]:
"But is weight generally the chief factor to be taken into account in fixing a sentence?"
12 And they answered the question at [68] and [69]. In Wong, their Honours regarded the selection of the weight of narcotic as the chief factor to be taken into account in fixing a sentence as representing a departure from fundamental principle. That, of course, was a case where they were dealing with a guideline judgment of the Court of Criminal
(Page 6)
- Appeal of New South Wales, which had purported to regard weight as an important principle.
13 In my opinion, the purity of the drug is in this respect similar to the weight of the drug in Wong and the comments can be equally applied. Purity may give an indication of the level of an offender within a criminal hierarchy: see Vogel v The Queen [2002] WASCA 261 per Wheeler J at [5] and [7].
14 Street purity is generally regarded at between 6 and 8 per cent: Marker v The Queen[2002] WASCA 282, per Anderson J at [87].
15 In Giannopoulos v The Queen [2000] WASCA 396, Wallwork J (with Pidgeon and Parker JJ agreeing) recited without comment that the sentencing Judge had accepted that the amphetamine in question was at the bottom of the street purity range and that the sentencing Judge appears to have regarded this in mitigation.
16 In R v Votano [2000] WASCA 144, Wallwork J (Kennedy and Pidgeon JJ agreeing) regarded the level of purity as a factor increasing sentence on a Crown appeal.
17 In Koushappis v The Queen [2001] WASCA 18, Pidgeon J said at [19]:
"I agree with the observations of Kennedy J that it is not open to the applicant, in the circumstances of this case, to complain against the failure to make findings as to purity, nor would I see purity as playing a significant part in a case such as this, where the applicant is selling heroin on the street."
18 Pidgeon J then referred to La Rosa v The Queen, unreported; CCA SCt of WA; Library No 960628; 31 October 1996.
19 In Quach v The Queen [1999] WASCA 210, Ipp J said at [14]:
"Much depends on quantity, purity and value of the heroin."
20 Ipp J then analysed a series of cases before expressing a view as to the appropriate range of sentences for cases involving possession of heroin with intent to sell or supply in relation to defined quantities and defined purity.
(Page 7)
21 In R v Hafner [2002] WASCA 211, Steytler J, after conducting a very considerable analysis of relevant authorities on a Crown appeal against sentence, concluded at [23]:
"… the fact remains that the quantity and quality of the drug involved in the commission of the offence is a consideration of some importance."
22 See also Dodd v The Queen [2002] WASCA 55, Wheeler J at [5] and Miller J at [55].
23 From those authorities it can be seen that the purity of a prohibited drug is a factor of some importance. In the case of couriers the purity may be less relevant. First of all, the characterisation of a person as a courier must not obscure the assessment of what the offender actually did: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [19], and as was pointed out in Wong at [68] and [69] a courier may have no knowledge of the purity of the drug. Attention should be focused on their action in transporting what they know to be a prohibited drug in quantity.
24 The weighting given to the various factors is very much within the discretion of the sentencing Judge. In my opinion the sentencing Judge was entitled to place some weight on the low purity of the tablets. If he had simply regarded that as one fact to be taken into account with others there could be no complaint, but he took one-third off the sentence which would have otherwise been imposed because of the low purity of the amphetamines. I am inclined to think that taking into account such a discount was an error and I do think the issue of purity distracted the sentencing Judge's attention from the actual criminality involved.
25 However, one recognises that this is a Crown appeal and that the sentence which is appealed against ultimately is a sentence of 5 years' imprisonment, however that sentence was calculated. Notwithstanding what I see to be an error by the sentencing Judge, having regard to the authorities on Crown appeals and having regard in particular to the youth of the two respondents, I am not persuaded that the actual sentence is so low as to manifest error. I would therefore dismiss this appeal.
26 TEMPLEMAN J: I agree that the appeal should be dismissed. The essence of the Crown submission is that the learned sentencing Judge gave too much weight to the low purity of the drug by reducing the sentence which his Honour would otherwise have imposed by 4 years. The question is, as Mr Mactaggart rightly points out: what is the criminality of the offenders? Mr Mactaggart refers us to Wong v The
(Page 8)
- Queen and also to Dodd v The Queen in which Wong was followed. Mr Mactaggart referred in particular to passages in the judgment of Wheeler and Miller JJ in Dodd. At [5] Wheeler J said:
"In assessing the criminality of the offender in many cases of crimes involving production or distribution of drugs the offender's intention, or understanding, or knowledge, of the amount likely to be produced or distributed and of the enterprise in which the offender was involved, will generally be of greater importance than the actual amount involved."
In Miller J's judgment at [55] his Honour said:
"As I have already pointed out, the High Court recently stressed in Wong v The Queen that the actual weight of the drug in possession of, imported by or manufactured by an offender is not critical to the sentence to be imposed. It can, of course, be relevant. The greater the quantity the greater the evidence of commercial enterprise."
28 I would not myself be persuaded that his Honour erred in the weight that he gave to the purity question because it seems to me that it was a factor to which his Honour was entitled to give such weight as he considered appropriate in the overall balance. If I am wrong in that, then I am certainly of the view that the ultimate sentence was appropriate in the sense that it was within the range of discretion which was open to his Honour in dealing with this particular matter, particularly having regard to the fact that this is a Crown appeal. In those circumstances I conclude, as I have said, that the appeal should be dismissed.
29 WHEELER J: I too would dismiss the appeal. I am in agreement with the reasons delivered by McKechnie J and there is nothing I wish to add.
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